Part 6: When Does Police Questioning Become Coercive?
People v. Ramsey
People v. Ramsey, 839 N.E.2d 1093 (4th Dist. 2005) began with reports of farmers who were complaining of a truck in the area possibly involved in methamphetamine production.
A deputy stopped a truck in the area because it had a broken windshield.
The deputy handed his driver’s license and proof of insurance to the officer through a vent-glass window because the driver’s side window could not be lowered.
The deputy wrote a warning ticket and returned to the truck. He then handed defendant his driver’s license and insurance card, and defendant reached through the vent-glass window to grab the items.
The deputy handed defendant the written warning and other documents and explained he had 45 days to comply with the warning ticket and fix the windshield.
As the deputy walked around the truck, he noticed a broken window on the rear passenger side. The deputy immediately noticed the smell of ether and saw a can of Prestone starting fluid with the cap off behind the rear passenger compartment.
The deputy was trained in the use and production of methamphetamine. He also noticed the defendant had a sunken face, bad teeth, and was extremely skinny. The deputy found a white plastic bag that let off a white puff of smoke that turned out to be methamphetamine.
He exited the vehicle and called the fire department for assistance.
The court held that the purpose of the stop was complete when license and insurance card were returned with a warning citation for the windshield violation. The deputy’s actions here did not constitute a show of authority such that a reasonable person would not feel free to leave.
The questions posed and responses given took mere seconds.
No second seizure occurred in this case. No weapon was displayed during the encounter and defendant was not physically touched by prior to his consent to the search. There was no use of forceful language or a tone of voice that would indicate defendant’s compliance was mandatory.
While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.
Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the fourth amendment.
Here, the evidence demonstrates defendant’s consent was voluntarily given.
People v. Roberts
Defendant in People v. Roberts, 872 N.E.2d 382, 374 Ill. App.3d 490 (4th Dist. 2007) refused to give consent, but then the questioning became more coercive.
This officer stopped the car because the rear registration light was not working.
There were three people in the car.
The officer had obtained everyone’s identification and checked for warrants. When he returned to the car he told the driver he was going to issue him a warning and had him step out of the car so he could talk to him.
Defendant was told he was free to go.
He was further questioned about firearms, alcohol, and drugs; and defendant answered “no” when asked about firearms and alcohol. The problem for the prosecution was that the defendant testified that when the officer asked for consent a second time he implied there was a K9 unit nearby.
The officer found a one-hitter pipe and a large bag of cannabis.
The court held that the traffic stop was complete once the officer returned defendant’s driver’s license and insurance card, handed him the warning citation, and told defendant he was free to leave.
The reviewing court could not make heads or tails of the conflicting testimony between the defendant and the officer. So the appellate court deferred to the trial judge’s ruling which was that this stop was not unlawful and the continued questioning was consensual. The trial court believed the officer when he testified he mentioned the nearby K9 unit after consent to search had already been granted.
This was a close one for police, but it reminds us that law enforcement officers do not violate the fourth amendment by merely putting questions to a driver.
However, we must always remember the person to whom the questions are asked may refuse to answer and may proceed on his way.
Although a police officer has the right to address questions to other persons, ordinarily the person addressed has an equal right to ignore his interrogator and walk away.
2 Examples Of Non Coercive Consent To Search That Was Given To Police Officers
(1) People v. Cosby – The Officer Gives Back The ID Before Asking & The Officer Can Ask Any Questions
(1) People v. Cosby, 231 Ill. 2d 262 (2008) asked whether the officers’ actions after the initial traffic stop had concluded constituted a second seizure of either defendant. The case was a consolidation of two different lower court cases.
Defendant’s argued that all of the circumstances of the traffic stop, taken together, strongly suggested they were not free to leave. In each case the following was true:
(1) The presence of two officers or more,
(2) The stop took place in the early morning hours in a deserted and poorly lit location, and
(3) The officers’ both asked questions “double teaming” the driver at the time of the request.
In the first case, defendant’s car was stopped for having no rear license plate light. Defended handed him a speeding ticket and an insurance card. Officer went back to his squad car, where he called for backup in anticipation of requesting consent to search.
About five minutes later, the backup officer arrived. Officer went back to the car, returned the speeding ticket and insurance card, and gave defendant a written warning about the rear registration light. At this point, the officer asked for consent to search his car, which defendant gave.
A crack pipe was found in the car’s center console. Later at the police station crack cocaine was found in a pack of cigarettes in the defendant’s pocket.
In the second case, police stopped a car for having a rear license plate cover that was tinted. Police also noticed a red bandana hanging from the rearview mirror. The officers suspected the driver to be affiliated with a gang and were concerned he might have a gun.
After checking his driver’s license and insurance, the officers returned to the car, one on each side. An officer returned the license and insurance card, gave him a verbal warning, and asked him if he had anything illegal in the car. Defendant responded that he did not.
The officer then asked defendant for permission to search his car. Defendant refused consent. Meanwhile the second officer, who was standing on the passenger side of the car, saw the butt of the gun sticking out from under the driver’s seat between the driver’s feet.
Not wanting to create a hostile situation he tried to signal to his partner but couldn’t get his attention. Defendant drove away and that is when the partner said he saw a gun. They pulled him over again, handcuffed him, patted him down, and searched the car.
The gun was not under the driver’s seat, but was found underneath a plastic tray in the center console.
The request for consent to search in both of the instant cases followed the officers’ returning of the defendants’ paperwork. At that point, the traffic stops came to an end. In each case the court concluded that the driver was not seized at the time the consent was given, therefore, it was voluntary.
None of these drivers were unduly delayed and the subsequent search of their car was entirely reasonable. In each case there was no coercion and the consent was voluntary. The Supreme Court set forth in Mendenhall certain factors the presence of which would tend to indicate that a seizure had occurred.
None of these factors were present in these cases.
Again, these factors are:
(1) The threatening presence of several officers;
(2) The display of a weapon by an officer;
(3) Some physical touching of the person of the citizen; and
(4) The use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
See Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.
Extreme Nervousness Is A Factor But Police Probably Can’t Search Based On Nervousness Alone
(2) People v. Roa
This driver’s extreme nervousness justified a further Terry detention making his consent valid. People v. Roa, 377 Ill. App.3d 190 (3rd Dist. 2007).
After stopping defendant for speeding, the officer approached the car, advised defendant he was going to issue a written warning for speeding, and asked for defendant’s license and registration.
The officer stated that defendant fumbled for those documents, seemed to exhibit more physical stress than most people do, and mumbled while staring straight ahead. At some point during the traffic stop, defendant revealed he was traveling from Colorado to New York.
The officer also noticed a new air freshener and a strong odor of air freshener emanating from the car. After issuing a written warning and returning defendant’s license and insurance card, he asked defendant if everything in the vehicle belonged to him and whether anyone had asked defendant to transport anything.
Defendant responded that everything in the vehicle belonged to him and no one had asked him to transport anything. The officer then asked if there was anything illegal in the vehicle, including any alcohol, weapons, or drugs. The defendant replied, “no.”
The officer then asked if he could search the vehicle. Defendant’s response was, “yes.”
The officer noticed that the airbag area appeared to have been tampered with or modified. After a 20-minute search, which included using a fiberoptic scope, the officers discovered a hidden compartment containing cocaine.
Later, when the compartment was disassembled, the troopers found the compartment contained a total of 24.2 pounds of cocaine. The cocaine was packaged in 11 separate packages.
Defendant contends the request for consent to search, and the resulting search of his vehicle, exceeded the scope of the circumstances justifying the traffic stop, negating defendant’s consent. Defendant claims the officer illegally expanded the traffic stop into a drug investigation.
The court concluded there was a second seizure after the documents were returned. The court noted that defendant, a man of foreign-born descent, confronted with the progressive nature of each question, would not have felt free to leave before the officer ended the conversation.
Here, the officer continued the exchange, following each response by defendant with further, albeit abbreviated, conversation, requiring defendant to reply or be judged for his failure to respond. Defendant was not free to ignore the questions.
Although there was no threatening presence of officers, display of weapons, or use of physical force, a reasonable motorist would not believe he or she was free to depart, or decline the officer’s inquiries, until given clear communication from the officer that the encounter was over.
Consequently, the court had to determine if the officer had a reasonable, articulable suspicion to justify the second Terry stop, which culminated in the request for consent to search defendant’s car.
The court recounted all the factors leading up to the ask for consent to search. The court heavily weighed the officers’ vast experience in drug interdiction, finding the officers’ training would give a person in his position a reasonable, articulable suspicion that there was some kind of criminal activity afoot.
Meaningless minutiae that might go unnoticed by most civilians become the focus of a trained drug interdiction officer, leading to justification for further action.
The totality of the circumstances approach allows an officer to raw on his own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude and untrained person. The trial court considered the officer’s testimony and carefully pointed out many factors that supported finding a reasonable articulable suspicion based on a totality-of-the circumstances.
The request for consent was lawful because the officer had sufficient reasonable suspicion to further delay the traffic stop.
5 Examples Of Police-Citizen Encounters That Turned Coercive
Nervousness & Road Trash Didn’t Justify The Delay For The Drug Dog
(1) People v. Thomas
People v. Thomas, 2018 IL App (4th) 170440 (August) involves another driver who was extremely nervous but the court didn’t give much weight this time.
Defendant is pulled over for an obstructed windshield.
The deputy obtains the driver’s information and engages in some initial small talk. The deputy learns the details of his trip and also tells him to take the bandana off the rearview mirror because it obstructs his vision.
After the deputy ran a warrant check he leaned into the SUV passenger window and told defendant, “Ah, the traffic stop over, ah, you’re free to go, all right.” But the deputy did not disengage and remove his arm from the door.
The deputy then withdraws from the window, without the documents, and begins to pepper the driver with a bunch of questions about his trip. The deputy also learns that defendant has a drug history.
The deputy asks if he has any contraband in the car, any large amounts of money, firearms, anything like that? Defendants denied having any of those things.
Deputy then asks him for consent to search. Defendant does not provide it instead asks, “What’d you pull me over for?”
Deputy answers, “I pulled you over for having an obstructed windshield.”
Defendant asks, “You said I’m free to go?”
Deputy says, “Yeah.”
Defendant says, “All right, well, thank you, sir.”
Deputy says, “All right. Have a safe trip.”
Defendant says, “All right, you have a good one.”
Deputy then tells defendant, “Tell you what, um.” The taillights of the SUV light up, but the SUV does not move. Deputy says, “Um.” The tail lights go off. Deputy continues, “You don’t want me searching your car, right?”
Defendant again asks, “You said I was free to go?”
Deputy answers, “Yeah.” And explains to him that, in Illinois, “if you have any personal use cannabis, or anything like that, or drug paraphernalia, that’s not, it’s not even arrestable anymore, it’s a simple ticket.”
Deputy asks him, “Do you have anything like that in your car?”
Defendant answers, “No,” and says he does not smoke.
Deputy tells him, “OK. All right. All right. Ahm, I’m gonna have, ah, the state police walk their K-9 around your car, and if it doesn’t alert, obviously then I won’t search your car, all right? All right. Cool.”
Deputy walks back to his squad car.
About two minutes later, the dog showed up and alerted to the SUV. Deputy and the trooper then searched the SUV and found the cannabis. He placed defendant under arrest. The deputy noted that the driver remained extremely nervous and initially wouldn’t look over at the deputy before he pulled him over.
The deputy also testified he thought it was weird that defendant was driving straight through to Alabama because it was a 35 hour trip and also because the deputy didn’t think he was traveling in with the most efficient direction.
Additionally, it made little sense to travel 70 hours in a car to spend two days somewhere, especially since it would have been cheaper to fly than to drive an SUV such a long way.
The deputy testified that inside the SUV he saw a large amount of “road trash.” This consisted of the wrappers and packaging for at least five energy drinks and lots of beef jerky, chips, and snacks. He also saw a backpack, no large amounts of luggage, and a large speaker box. From his vantage in the traffic stop, he could not see anything else inside the SUV.
In this case, the mission of the traffic stop was done when the deputy gave defendant a verbal warning for an obstructed windshield and told him he was free to leave. When the deputy returned his documents to the traffic stop ended.
Generally, a traffic stop ends when the paperwork of the driver has been returned and the purpose of the stop has been resolved. After the traffic stop ended, the deputy continued to ask defendant questions. It was clear the driver wanted to leave but the deputy did not let him.
The court concluded the totality of those circumstances showed the deputy lacked reasonable suspicion to detain defendant for the dog sniff.
Besides the extreme nervousness there was nothing else substantial that the officer could rely on in combination with the nervousness to justify the further delay for the dog.
This Is Why Police Have To Return You Paperwork Before Asking For Consent To Search
IT HAS TO BE CLEAR THE INITIAL STOP HAS ENDED
(2) People v. LaPoint
The driver in People v. LaPoint, 353 Ill.App.3d 328 (3rd Dist. 2004) was seen weaving in its lane and almost drove onto the shoulder. Police stopped the car and made contact with the driver.
The driver explained she was in a rental and was getting tired. After that she couldn’t explain where she was coming from. The officer just started naming states and she finally settled on Iowa. She had a weird story about being in Iowa and said she had never been arrested. She said she had nothing illegal in the car.
The officer took her information and returned to his squad car. He saw that she had an extensive criminal history but everything was 20 years old with no active warrants. He prepared a warning then returned to the car.
While holding her drivers’ license, rental papers, and the warning ticket the officer asked the driver to step out of the car. He had additional questions for her then explained the warning ticket and returned her paperwork.
As he was returning her items he asked her for consent to search the car. He did not advise her that she was free to deny the request and was free to drive away. She granted his request. She refused to sign a written consent but still acknowledged she gave verbal consent for the officer to search the car.
At this point the officer brought his K-9 out from the squad and walked him around the car. The dog alerted on the trunk. When the officer opened the trunk he observed a large duffel bag covered with a white towel. There were packets of cannabis in the bag.
The instant facts scarcely afford an opportunity for a reasonable person to even contemplate being free to leave. At the very moment when such freedom arose in theory, the officer posed a diversionary question about searching the vehicle. Most significantly, she was still separated from her mode of departure, and the officer’s question about searching came on the heels of a second round of investigatory questions.
When the officer brought up the subject of a search, he did nothing to indicate that she could return to the vehicle. Neither did he inform her that she was free to leave despite his continued queries.
Young Drivers May Be Especially Prone To Police Coercion
(3) People v. Goeking
This 17 year old driver was stopped when it parked on the wrong side of street then pulled away from the curb without signaling. People v. Goeking, 335 Ill. App.3d 321 (2nd Dist. 2002).
There were four total occupants in the car. Defendant seemed fidgety, nervous and seemed adamant about leaving. Defendant’s eyes looked glossy and were red and bloodshot. Defendant said there was nothing in the car that shouldn’t be in the vehicle. The officer had her step out of the car to see whether she was intoxicated. He did not smell any alcohol on her breath.
The officer eventually issued a verbal warning for traffic violations, and told her that she was free to go. Defendant began walking back toward her car. The officer then asked her if she had any knives, guns, drugs, dead bodies, grenades, rocket launchers, anything that shouldn’t be in the vehicle.
She said she did not.
He then asked if she had any objection to searching the vehicle. She said she did not.
In court defendant testified that she did not feel free to continue walking toward the car or to drive away after the officer asked her if she had anything illegal. She did not feel she had any choice in permitting the search because the officer would become “suspicious” if she refused consent.
Police searched the car and found a pen and a socket wrench containing THC residue.
The court commented that the officer told defendant that she could leave, but then almost immediately questioned her about illegal items in the car and asked for permission to search. Thus, the officer at best sent defendant mixed signals.
Commands To Do Things Or If The Officer Wants You To Do Something Might Push The Interaction Into An Involuntary One
(4) People v. Gherna
Two bicycle patrol officers positioned themselves on either side of a truck with two female passengers. This happened in People v. Gherna, 203 Ill.2d 165 (2003).
The truck was in an apartment complex parking lot considered to be a high drug area. The officers saw a beer bottle sitting in a cup holder in the center console. The officers suspected underage drinking. Defendant was in the driver’s seat, and the officers quickly determined she was over the age of 21.
The passenger was her 13 year old daughter. The officer asked to see the bottle. Defendant handed it to him and he noticed it was closed. There was no other drinking going on. The police continued to talk to the driver. Defendant remained nervous the entire time.
When defendant could not explain why another person’s Link card was in the truck the officer asked her to step out of the truck. They walked back to the rear where the officer asked if there was anything illegal like drugs or narcotics in the truck.
Defendant said no.
Defendant then began emptying her pockets when a clear plastic baggie fell to the ground. it had white yellowish rocks of crack cocaine in them. Defendant was arrested.
The message to any reasonable person was that he was not at liberty to ignore the police presence and go about his business.
Once the officers’ reasonable suspicions regarding underage drinking had been allayed, the specific reason for the Terry investigative detention had concluded. The record reflects, however, that the officers continued to detain defendant.
Once the officers concluded their initial encounter with defendant by returning the bottle of beer, the officers did not indicate in word or manner that defendant was free to leave, even though the officers harbored no reasonable suspicion of any other criminal conduct on defendant’s part. To the contrary, the officers remained stationed on both sides of defendant’s truck, with their bicycles positioned next to the vehicle’s doors, and proceeded to question defendant about her reasons for being in the area.
Although, there is no rule that says an officer has to inform a driver that he is free to leave such a notification in this case may have gone a long way in resetting the interaction between the officer and the driver.
Under the totality of circumstances surrounding this incident, defendant remained seized within the meaning of the fourth amendment, as a reasonable innocent person in defendant’s position would believe that she neither was free to disregard the police and go about her business nor was free to decline the officers’ requests or otherwise terminate the encounter.
The continued detention of defendant constituted an unreasonable seizure that violated her fourth amendment rights.
Police Can’t Be Weird About Asking For Consent To Search
People v. Brownlee
Above all, don’t be weird when you ask for consent to search. See People v. Brownlee, 186 Ill.2d 501 (1999).
Officers were on patrol when they stopped the car defendant was a rear seat passenger in. The car had left a drug house and then drove away. When the car stopped past a stop line at a stop sign and turned without a signal it was curbed.
After the warrant checks everyone in the car was cleared and the officers decided to issue no citations or warnings. Officers returned I.D. cards to everyone and explained no citations would be issued. The driver was not told he was free to leave.
Instead, the officers said nothing else for 2 minutes.
Following the pause, an officer asked the driver if he could search the car. The driver asked if he had a choice in the matter. The officer said he did have a choice and that he was asking if he could search the car.
The driver stepped out of the car and said, “Okay, you can search.”
Police found an open bottle of beer in the backseat floor where defendant’s feet had been. Two blunts were lying underneath a man’s jacket bundled up in the center of the front seat. Everyone in the car was arrested.
When they searched the female passenger incident to her arrest she had a controlled substance on her person which was the basis for this charge.
The state acknowledged that the long pause happened but argued that it didn’t mean anything, and the driver could have driven away at any time. The Illinois Supreme Court thought otherwise.
It said that the driver had no choice but to submit to the officers’ lawful authority. A reasonable person in this driver’s situation would likely conclude that, if he or she drove away, the two officers would soon be in hot pursuit.
Given these circumstances, the driver and the passenger were subjected to an additional illegal seizure.