New Case -- Seeking consent during a traffic stop

In my last blog I stated that the only limitation on an officer's ability to seek consent was time.

Officers in the past have assumed that the time issue can be defeated by simply telling the suspect that he is free to leave -- and then asking him some questions leading to a request for consent -- as it is presumed at that point there is no seizure.

I do not think think this will work in Illinois any more.

In People v Bernstein (6-28-08) an officer during a traffic stop asked Berstein to join him in the patrol car. The officer gave Bernstein a warning and then said something like -- "All righty, have a safe trip and nice day."

Immediately thereafter, before Bernstein exited the patrol car, the officer inquired whether Bernstein had anything illegal in his car. This question led to a request to search -- take a "quick look" into -- Bernstein's car.

The officer found drugs in the car.

The trial court ruled that the drugs were admissible as the conversation became a consensual encounter after the officer told Bernstein he was free to leave.

The Illinois Court of Appeals reversed stating, "We do not consider the officer's superficial termination of the traffic stop to have concluded it. The officer returned the documents and immediately began posing questions to Bernstein. The officer inserted his request to ask more questions in the 'seamless transition between mandatory and consensual interaction.' There was an insufficient passage of time or a perceivable shift in Blanks' authoritative stance such that a reasonable person in Bernstein's position would have recognized that the traffic stop had ended and a consensual encounter begun."

There are several other Illinois cases that have ruled that it is very difficult to return back to tier 1 (no seizure) from tier 2 (detention).

If you suspect that the traffic offender has something illegal, my suggestion is:
1. call for a back-up to help;
2. very early in the stop ask about illegal substances;
3. tell the suspect you are going to issue a warning;
4. ask for consent -- get it in writing if possible;
5. have your back-up search the car within 10 or 15 minutes of the stop.

The United States Supreme Court has stated that you must conduct your business within the time it takes to do a traffic stop (that's a good reason to get an officer to help you). Remember that as more an more defense attorneys will be trying to get their clients off on these rules.

Best -
DA