Section 6.20 Consent

• Library: DWI 2014

Consent is a valid exception to the warrant rule. A warrantless search is valid if it is made with consent that is freely and voluntarily given. State v. Faulkner,103 S.W.3d 346, 355 (Mo. App. S.D. 2003).

In State v. Woolfolk,3 S.W.3d 823 (Mo. App. W.D. 1999), a trooper was conducting a routine patrol when he observed a car with its reverse lights illuminated while it was moving forward, in violation of statute. The trooper pulled the driver over for the equipment violation.

The driver was nervous, but not excessively so. The trooper informed the driver of the problem with his backup lights and stepped to the rear of the car to see whether the backup lights were still on. Once the driver manipulated the gear selector lever the reverse lights went off, correcting the problem. The trooper informed the driver that he would only get a warning. The driver still seemed apprehensive, but not unusually so.

The trooper asked for and received the driver’s license and proof of insurance. The trooper returned to his patrol car to check the driver’s license status, warrants, and criminal history. The check confirmed that the driver’s license was valid and that the driver had no outstanding warrants. The check also reported that the driver had a lengthy traffic record and one prior criminal arrest involving possession and transportation of marijuana. The trooper later testified that, while he was in his squad car making the checks and filling out the required paperwork, the driver seemed concerned about him, and his nervousness did not diminish during the course of the traffic stop.

The trooper again approached the driver’s vehicle, advised the driver that he would only be issued a warning, and returned his driver’s license and other paperwork. He asked the driver if he had any questions, to which the driver replied, “no.” At that point, the traffic stop was complete.

Regardless, the trooper went on to ask the driver whether he had ever been arrested before. The driver’s answers were inconsistent with the information the trooper had just read in the driver’s criminal history. While speaking with the driver, the trooper observed a crumpled fast food bag and noted that the driver was still nervous. These facts aroused the trooper’s suspicion, and he asked the driver if there was anything illegal in the car. The driver replied that he did not have anything illegal in the car, and the trooper then asked the driver for his consent to search the vehicle.

The driver repeatedly told the trooper that he did not want his car searched until the trooper told the driver that if he did not give consent, he would have the driver remain at the scene until he could get a drug dog to come and search the vehicle. The driver eventually gave his consent to search instead of having a canine come out and search his car. The search revealed a number of wrapped cubes of marijuana, and the driver was arrested.

The Woolfolk, 3 S.W.3d 823,court considered, among other things, whether the consent given by the driver to search his car was valid. An officer may at any time ask a citizen whether the citizen has contraband in the...