Traffic Stops -- Scope Issues -- Consent

I have been asked a lot of questions a lot of times about whether officers can ask for consent during a traffic stop. now -- i.e. has the law changed back again in this area?

The one word answer to this is -- Yes.

Now let me try to expain -- and make a short answer long.... in a 10 point blog.

1. This all sort of started with the case of People v Gonzalez at the Illinois Supreme Court five years ago. The Illinois Supreme Court in Gonzalez decided and ruled (basically) that an officer must have reasonable suspicion to do anything meaningful during a traffic stop except for the questions related to the reason for the stop. Virtually, everything else an officer did went beyond the "scope" limitation of Gonzalez.

2. There are a number of cases that killed off the Gonzalez case -- and it's "scope" requirement, so let's talk about them.

3. Of course, the US Supreme Court is the final arbiter of what the 4th Amendment says.

4. To reiterate -- The Illinois Supreme Court in Gonzalez decided to set up a 3-part test in Gonzalex -- basically holding that officer cannot do anything outside the reason for the stop -- unless the officer has reasonable suspicion to do something else.

5. This made Illinois Courts of Appeals say that it goes beyond the "scope" of a traffic stop to seek consent.

6. Then the USSC accepted the appeals of the Illinois AG in CAballes (dog sniff during a traffic stop) and Harris (checking warrants on passengers) Illinois Supreme Court cases where the Illinois Supreme Court suppressed the evidence.

7. The USSC in these cases told the Illinois Supreme Court that the 4th Amendment's scope requirement during a traffic stop only relates primarily to TIME implying that anything that can be done during the 10-15 period of the traffic stop is basically ok -- including bringing a dog out (Cabelles) or checking warrants on a passenger (Harris).

8. When the Illinois Supreme Court subsequently reviewed the cases of Caballes and Harris the ILlinois Supreme Court agreed with the USSC ( the Illinois Supreme Court could have stayed with their original decision -- and rejected the USSC decisions -- under the Illinois Constitution -- but decided not to).

9. The USSC never said that consent searches were not beyond the scope of a traffic stop -- because that was not issue in the cases.

10. However in several Illinois Courts of Appeals cases after Harris and Caballes -- the issue of consent arose. They all said that Gonzalez was dead and that the issue now was TIme -- One of the first and best of these cases was a case called People v Starnes. That case specifically said that the scope requirement of Gonzalez is dead.

So officers may now seek consent without having reasonable suspicion.

Let me say in conclusion -- a phrase you have heard many times -- if you abuse it, you will lose it. I.e. -- seek consent only in cases where you have some good reason to believe there is contraband or some crime-related evidence in the vehicle. IMO the reason the Supreme Court of Illinois took this power away from officers for a while was that the power was being abused.

Best -

DA