Seeking Consent After A Traffic Stop

The Illinois Supreme Court, in the recent case of People v Cosby, has apparently changed the rules (again) related to traffic stops and seeking consent.

I think soon we will all recognize that this is the most important 4th Amendment case in Illinois Supreme Court history.

The following are the facts and holding of Cosby -

An officer stopped a vehicle for a traffic citation during the early morning hours. The officer had a hunch the driver might have drugs in the vehicle, so he called for a back-up. The officer gave the suspect his paperwork etc back and gave him a warning ticket. The officer then asked the driver if he could search his car.

The driver consented. The officer searched the car and found drugs, etc.

The Illinois Supreme Court ruled that:

1. The seizure, for purposes of the traffic stop, is over when the officer gives the driver the ticket and paper work.

2. A second officer on who is present, after the traffic stop, apparently does not create a seizure -- if only the two officers total are present.

3. The officer may seek (should) consent immediately after returning the license and paperwork.

If you have any questions, don't hesitate to write.

Best -

DA

Traffic Stops and Consent -- Supreme Court of Illinois

Here are the basic facts --

An officer stopped a vehicle for a traffic citation during the early morning hours. The officer had a hunch the driver might have drugs in the vehicle, so he called for a back-up. The officer gave the suspect his paperwork etc back and gave him a warning ticket. The officer then asked the driver if he could search his car.

The driver consented. The officer searched the car and found drugs.

The driver moved to suppress the drugs.

The Illinois Supreme Court ruled that by giving the ticket and all paperwork back to the driver the driver was no longer seized and an officer may seek consent during this period. Therefore the evidence was admissible.

Best --

DA

Terry searches of occupants of vehicles

Officers stop a car with several gang members in it. An officer wants to talk to one of the occupants, Johnson, who is sitting in the back seat. The officer later testified that she wanted to get more information about the gang – and that the conversation was just a consensual encounter.

After Johnson got out of the car and prior to talking with the Johnson, the officer did a cursory pat down and discovered a gun in Johnson's waistband.

The Arizona Court of Appeals ruled that it is unconstitutional to conduct a Terry search without first having a Terry stop.

The holding was the slippery slope result of Ilono case in which officers entered a Ramada where there were five suspected gang members. The officers frisked the occupants and discovered crime-related evidence on Ilono. The court in that case suppressed the evidence as the officers could not explain any “reasonable suspicion” to believe the gang members were about to commit a crime, were committing a crime, or had committed a crime.

The impact for officers is that even though they may have good reasons (reasonable suspicion) to conduct a Terry search, they are prohibited from doing so, because they have no reasonable suspicion to conduct the stop and detention in the first place.

These are dangerous decisions for Arizona officers, both as practical and legal matters.

As a practical matter, obviously, these decisions could cost officers their lives. As a legal matter, officers who are unaware of the Johnson case could easily fall into a simple defense attorney trick / trap.

Here is the trick / trap. If an officer stops a suspect during a traffic or Terry stop, the officer will be asked during cross-examination, “Officer, was your (intended) questioning of my client simply a consensual encounter?” If the officer answers, “Yes” then any Terry search was prohibited, and the evidence will be suppressed.

My advice then is to make all questioning of Terry suspects or occupants of vehicles detention questioning. In those cases the evidence gathered as a result of a Terry search will be admissible.

Please note - I am not talking about talking to a driver AFTER the traffic stop and trying to get consent to search. In that instance, you should (probably must) tell the suspect that he is free to leave, but that you would like to talk to him for a minute.