Lead Opinion
Opinion
Dаvid 0. Meekins pled guilty to and was convicted of possessing two or less ounces of marijuana after the trial court denied his motion to suppress. Whether the trial court acted properly in so acting is now before us. Meekins believes that the motion should have been granted because 1) the arresting officer unreasonably prolonged his detention, and 2) his consent to search his vehicle was neither positive or unequivocal. We reverse the judgment.
Background,
On January 12, 2007, at approximately 11:00 p.m., Officer Tony Williams observed appellant and his companion depart from a house purportedly known for drug activity. When they arrived at the house, how long they stayed, and their reason for being there were unknown to the officer, and are unknown to us. Nonetheless, upon seeing them leave the abode and walk to a vehicle parked down the block, the officer and his recruit decided to follow them.
After driving away, appellant made a turn without signaling. This resulted in the initiation of a traffic stop and the officers approaching the vehicle. According to Williams, both of the vehicle’s occupants appeared nervous. This conclusion was derived from appellant moving around in his seat while the passenger remained still. Nonetheless, Williams acquired appellant’s driver’s license, checked it for outstanding warrants, and returned to the vehicle. Nothing of record discloses whether appellant was the subject of any arrest warrant. Nor does the record illustrate what information, if any, the officer obtained as a result of running appellant’s license. Yet, it is clear that upon returning to appellant’s car, he solicited consent to search it. That solicitation continued over a period of about a minute and
As he left the vehicle, appellant appeared to place a hand in his pocket. This resulted in Williams grabbing appellant’s hand and asking permission to search the content of his pocket. Therein was found the marijuana for which appellant was prosecuted.
Law
The applicable standard of review is discussed in Ford v. State,
Next, no one contests the validity of the initial detention. Simply put, Williams had the authority to stop appellant when he witnessed the traffic violation. Whren v. United States,
When relying upon consent to justify the lawfulness of a search, the State must prove by clear and convincing evidence that the consent was freely and voluntarily given. Bumper v. North Carolina,
As previously described, the video of the stop rеvealed that Williams asked for consent about six times. Appellant’s first five replies to those solicitations were evasive and so much so that they resulted in the officer informing him that the inquiry was a “yes or no question.” The officer’s desire to hear a “yes” or “no” answer continued until appellant said “yes” or “I guess” to the last solicitation. Because that utterance allegedly evinced to Williams “clear and unequivocal” consent, he ordered appellant to exit the vehicle. The problem comes, however, in the nature of the question to which appellant said “yes” or “I guess.”
The officer had not asked “may I search” but rather “would you mind if I look?” Answering “yes” to the latter meant that appellant did mind. Answering “I guess” also had and has like connotation; that is, saying “I guess” in response to being asked if one minds whether something happens can well indicate that he does. To this we add appellant’s prior evasiveness in response to the officer’s persistence in asking for consent. When combined, the circumstances paint not a picture of clarity or unequivo-cation but rather one of vacillation and hesitance. More importantly, to somehow conclude from the entirеty of the scenario that saying “yes” or “I guess” meant that appellant finally acquiesced to the search invites speculation into various matters. Those matters consist of whether appellant failed to listen to the specific question asked by Williams, whether he ignored the last question and opted to answer those previously propounded, or whether he reinterpreted the question frоm one asking “would you mind” to one asking “may I search.” Yet, authority denies both this court and the initial factfinder from engaging in speculation given the absence of supporting evidence.
Simply put, the situation before us is not one in which the historical facts are in dispute, for they are not. They were put to rest by both the video and Williams’ confirmation of what appeared on the video. What was said and done was said and done, neither can be questioned nor changed. Thus, we merely are left with applying the undisputed facts to the law regarding consent, and that is a task undertaken de novo. And, upon undertaking that task, we hold, as a matter of law, the State failed to clearly and convincingly prove that appellant granted the officer positive, unequivocal, and voluntary consent to search his car.
Despite our conclusion that the issue before us involved consent, there is some allusion in the State’s brief regarding whether the officer had reasonable suspicion to believe appellant engaged in some drug crime. The State’s appellate counsel tended to downplay that proposition during oral argument but to the extent the matter was not conceded, we will address it briefly. First, we knоw of no authority holding that simply seeing someone leave a “narcotics house” at 11 p.m. and enter a car parked down the block gives rise to reasonable suspicion to believe that criminal activity is afoot. Nor did we find any. Indeed, it appears that the opposite is true
Furthermore, Williams having characterized appellant’s conduct as akin to “almost like they were trying to sneak down the block” is of no moment. This is so since establishing reasonable suspicion required the presentation of articulable “facts.” Scott v. State,
That the officer also characterized appellant’s parking down the block as suspicious is also of little value. This is so beсause he thought that one engaging in innocent conduct would have parked in the empty driveway given the inclement weather. Yet, defense counsel had him admit that he did not know when appellant arrived at the house, did not see him enter it, did not know how long he remained in the house, and did not know whether the driveway was empty when appellant arrived. Indeed, the officer also concluded that he was merely “speculating.”
As for the allegation that the location from which appellant exited was a “narcotics house,” Williams based that upon 1) a “sheet” that the narcotic’s department “put’s [sic] out every six months, sometimes longer” and 2) his having “worked the house before” and “worked with officers at that house ... [who] made narcotics arrests ... from that house.” But, the record contains no evidenсe illustrating when the house was “worked” or when the arrests were made. Both events could have happened days, weeks, months, or years earlier. Nor does the record disclose either when the narcotics department issued the “sheet” used by Williams or when he actually acquired it. Thus, the information in it could well have been stale especially since it was disbursed every six months or “sometimes longer.” We see no reason why the timeliness of the data on which the police rely should be of less importance in the reasonable suspicion equation than it is when determining the existence of probable cause for purposes of securing a search warrant. See e.g. Blake v. State,
Finally, we address the observation that further detention was also permissible because appellant and his passenger appeared nervous. Again, Williams so testified. He also disclosed the facts upon which he dеrived that opinion. They consisted of appellant moving around while his passenger remained still. Though nervousness can be a relevant indicia, Illinois v. Wardlow,
In sum, the record before us does not permit one to objectively conclude that appellant’s leaving the “narcotics house” and appearing nervous provided Officer Williams with reasonable suspicion to detain appellant. So, that cannot be a basis for justifying detention once the purpose for the original stop (ie. investigating the traffic violation) ended.
Dissent
Concerning the dissent of Justice Campbell, we respectfully say the following. First, it is clear that an officer may ask one for permission to search a vehicle after the purpose of the initial stop ends. Strauss v. State,
Second, while an officer may be able to ask a detainee to step out of the vehicle, id., the dissent cites no authority permitting such request once the reason for the stop has ended, which includes the two cases cited by the dissent. That may be because our Court of Criminal Appeals has held that once that point has been reached, the suspect must be released. Kothe v. State,
Nor do we find succor in the dissent’s suggestion that discovery of the contraband was lawful merely because appellant consented to the search of his pocket. By that time, the initial justification for the stop had ceased. By that time, appellant had already been subjected to repeated requests for leave to search by one officer while another armed officer stood nearby. By that time, appellant had illustrated his reluctance if not refusal to permit a consensual search. By that time, he had been ordered to exit the car by аn officer who lacked unequivocal permission to search. By that time, one could reasonably interpret the officers’ conduct as indicative of their intent to continue the detention until appellant answered in an acceptable way. But, by that time, only seconds had passed between the pressure being applied by the officer, the latter’s unfounded order to get out of the car, and appellant’s “consent” to search the pocket. These circumstances negate the existence of opportunity for reflective thinking necessary for there to be any attenuation between the officer’s improper conduct and his receipt of consent to search the pocket. And, without satisfying the prerequisite of attenuation,
Accordingly, the judgment is reversed, and the cause is remanded to the trial court.
CAMPBELL, J., dissents.
Notes
. In so concluding, we leave for another day answers to quеstions such as 1) whether a detainee must respond "yes” or "no” to a request to search, 2) whether an officer may require a detainee to respond at all, 3) whether a detainee’s reluctance to say yes or directly respond to an officer's solicitation equates to a refusal to consent, and 4) whether an officer may continue a temporary detention until the detaineе responds to a request to search in an acceptable manner.
Dissenting Opinion
dissenting.
As I understand the Court’s reasoning, it finds the consensual search of appellant’s pocket followed the officer’s unreasonably prolonged detention of appellant, and marijuana found in the pocket was thus fruit of the poisonous tree. I agree with the Court that an officer’s request for consent to searсh a vehicle involved in a traffic stop, although otherwise permissible, may nonetheless prolong a detention to an unreasonable degree. See Kothe v. State,
As the Court notes, the exchange between appellant and the officer concerning consent to search the vehicle took about a minute. From its inception to appellant’s arrest, the detention took something over six minutes. The Court accurately characterizes as “evasive” appellant’s responses to the officer’s first several questiоns regarding consent. Appellant and the State disagree over the effect of appellant’s “yes” or “I guess” response to the officer’s last question, and the Court finds it insufficient to demonstrate appellant’s unequivocal and voluntary consent to search of the car. Accepting the Court’s conclusion as correct, surely the same evidence permitted the trial court to cоnclude appellant did not refuse the officer consent to search his car.
The video recording shows the officer told appellant to step out of the car immediately after appellant’s response to the officer’s last request for consent. The officer testified, and appellant does not disagree, that appellant reached toward one of his pockets as he stepped out of the vehiсle, leading the officer to grab appellant’s arm then seek his consent to search the pocket. Appellant consented to the search of the pocket and the marijuana was found. Case law provides an officer may as a matter of routine ask an occupant to step out of a vehicle after a traffic stop. Pennsylvania v. Mimms,
. In the absence of findings of fact, we view the evidence in the light most favorable to the trial court's ruling. Carmouche v. State,