This is the second of two summary articles on the topic of consent searches during car stops. The first article discussed options when officers have developed reasonable suspicion that criminal activity is afoot other than the original reason for the stop. This article will discuss the options for officers whose suspicions are real but do not rise to the requisite reasonable suspicion to further detain and investigate.
As noted before, car stops are seizures under the Constitution and are considered temporary detentions which have been supported by reasonable suspicion to believe that a driver or other occupant of a car has, is or is about to commit a crime. Although an outlier in the law and the nation, Kansas does not allow officers to seek consent to search a car during a detention unless and until the officer has developed reasonable suspicion of a second crime occurring.
So, what are the options available to an officer who becomes professionally suspicious at a stop but is unable to acquire facts and develop inferences that would legally rise to reasonable suspicion authorizing the officer to further detain and investigate? First, and like at all such events, the officer could simply release the car believing that discretion is the better part of valor. That option becomes more appealing when the suspicions would be considered weak or debatable.
A second option is to transform the event from a temporary detention into a consensual encounter by finishing the original enforcement action, returning the driver’s license and any other property, and explaining to the driver that the stop is over and he or she is free to leave. A consensual encounter has been established if, under a totality of the circumstances, the officer’s conduct conveys to a reasonable person that he or she is free to refuse the officer’s requests or otherwise end the encounter.
Once a consensual encounter has been established, the officer may request that the driver agree to stay, answer more questions and/or consent to a search. Unlike the training of the past, there need not be any physical break between the ending of the detention and creation of the consensual encounter. For a consent to search to be valid, two conditions must be met: (1) there must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied.
Should the driver decline to consent, then the entire event is over. However, should the driver agree, then the officer may act on whatever consent the driver has given, for as long as the driver allows. Sometimes during an actual search, officers develop probable cause because of what they see or smell. At that moment, the search legally morphs from a consent search into a probable cause search, and any prior consent, or the possibility of withdrawal of that prior consent, becomes moot.
Some officers may have been trained that even with reasonable suspicion of a second crime that it is better to go into a consensual encounter, seek consent to search, and should that be denied then use that pending reasonable suspicion to re-detain the car for further investigation such as calling a dog. But, as already explained, that tactic is unnecessary. An officer with reasonable suspicion of a second crime may seek consent to search during the original detention. If denied, then call the dog or employ other investigative techniques.
In fact, using the re-detain tactic has informally been called into question by some members of the Kansas Supreme Court. In a concurring opinion in State v. Schooler three justices believed that such a re-detain tactic “reeks of fraud or coercion” and they “. . . would caution our law enforcement officers against using the promise of freedom in any attempt to circumvent the protections afforded by our Constitution.” In other words, those justices thought that telling a driver that he or she was free to go when the officer had no intention of allowing the driver to leave was at best a falsehood, and may well taint any consent to search that the driver might later give. Officers should therefore err on the side of caution when contemplating the use of a re-detain tactic.
For further research and understanding: State v. Schooler, 308 Kan. 333 (2018); Terry v. Ohio, 392 U.S. 1 (1968); State v. Thompson, 284 Kan. 763 (2007).
United States Supreme Court Update
The Court’s 2019 term ended on July 14, 2020 when it issued the last of 63 opinions for the year. As predicted, the only street law enforcement case was that of Kansas v. Glover, a 2016 car stop from Douglas County. In an 8-1 vote, the U.S. Supreme Court reversed the Kansas Supreme Court holding that it is a “commonsense inference” that absent any other information known to an officer, a vehicle’s registered owner would be the driver of a vehicle. And, such an inference, standing alone, is sufficient reasonable suspicion to stop the vehicle. See Kansas v. Glover, __ U.S. ___, 140 S.Ct. 1183 (2020).
It will be very interesting to watch the new legal arguments as they develop around Glover, and what those will mean for reasonable suspicion in our state. Kansas court opinions have for years been confusing about what facts and inferences amount to reasonable suspicion, despite the relatively low bar set by the seminal U.S. Supreme Court case of Terry v. Ohio.
The Court’s 2020 term will begin on the first Monday in October.