Section 9.12 Justification for Seizure: Vehicles

• Library: Criminal Practice 2012 Supp

D. (§9.12) Justification for Seizure: Vehicles

Stops of vehicles have developed as an important area of Fourth Amendment jurisprudence. Although they are theoretically governed by the same standards as stops of individuals, the unique nature of vehicles has led to the development of a discrete body of law relating to the stop of vehicles. This section addresses some of those unique issues.

Stopping of vehicles poses particular issues because of the breadth of regulation of vehicles. It is clear that an officer who observes a traffic violation may stop the car and detain the driver for a reasonable time while the officer checks the defendant’s license and registration and prepares a citation or warning. State v. Barks, 128 S.W.3d 513, 516–17 (Mo. banc 2004). The stop may include asking for a driver’s license and registration, requesting the driver to sit in the patrol car, and asking the driver and passenger about their destination and purpose. Id.; see State v. Peterson, 964 S.W.2d 854 (Mo. App. S.D. 1998). While this investigative procedure should take no more time than reasonably necessary, detentions of 12 to 15 minutes have been upheld as reasonable. Id.

A vehicle stop may be permissible even in the absence of an actual violation of law. “[A] ‘traffic stop may be justified by observation of conduct which may not itself even constitute a traffic violation but merely an unusual operation.’” Peterson, 964 S.W.2d at 856 (quoting State v. Bunts, 867 S.W.2d 277, 280 (Mo. App. S.D. 1993)); State v. Pike, 162 S.W.3d 464, 473 (Mo. banc 2005); State v. Huckin, 847 S.W.2d 951, 955 (Mo. App. S.D. 1993). The ability to stop a vehicle on such a broad basis opens the door to misuse of vehicle stops to investigate criminal activity on a pretextual basis. But while the court in Peterson stated that “‘[t]he pretextual use of a traffic violation to justify a search is violative of the Fourth Amendment,’” Peterson, 964 S.W.2d at 856 (quoting Bunts, 867 S.W.2d at 280), that may not be wholly accurate in light of Whren v. United States, 517 U.S. 806 (1996). If by this statement the court meant that a stop cannot be used to justify a search that is not otherwise permissible under the Fourth Amendment, the statement is correct. But if the court meant that a pretextual stop is somehow tainted in and of itself, that proposition was flatly rejected in Whren. As the court in State v. Meza, 941 S.W.2d 779 (Mo. App. W.D. 1997), explained with regard to Whren, “so long as an officer is doing no more than he or she is legally permitted and objectively authorized to do,” the officer’s motives and usual practices simply “do not matter.” Meza, 941 S.W.2d at 780–81.

When a person has been stopped for a traffic violation, there is no requirement that the officer tell the individual that they are free to go before requesting consent from that person to search the vehicle. The fact that the officer has already decided not to detain the person further does not need to be communicated before seeking consent; the officer’s subjective intent is irrelevant. Ohio v. Robinette, 519 U.S. 33 (1996). In State v. Scott, 926 S.W.2d 864 (Mo. App. S.D. 1996), the court, anticipating the result in Robinette, held that such a “‘free to go’ warning” was not required. The court held that further questioning and a request for consent may follow a detention as long as the encounter once again becomes consensual. Id.; see also State v. Shoults, 159 S.W.3d 441, 446–47 (Mo. App. E.D. 2005) (noting that “no litmus test exists for determining whether continued questioning is consensual” and comparing cases leading to opposite conclusions). “This does not mean, however, that an officer is free to involuntarily detain a driver without reasonable suspicion under the guise of simply engaging in a voluntary conversation.” State v. Woolfolk, 3 S.W.3d 823, 830 (Mo. App. W.D. 1999). “While the officer may not have an obligation to affirmatively tell a driver he is free to go, where . . . he tells the driver that his only two options are to allow a search or to wait for a canine unit, he has effectively told the driver he is not free to go,” and the continued detention is improper...