Richard Brandon Green, appellant, was stopped for speeding in Queen Anne’s County. In a search of Green’s car at the scene, police found marijuana and cocaine. As a result, appellant was charged with narcotics violations. Green moved to suppress the fruits of the warrantless search but, after an evidentiary hearing, the court denied the motion, finding that the search was consensual. On March 15, 2001, Green tendered a plea of not guilty in the Circuit Court for Queen Anne’s County, and proceeded by way of an agreed statement of facts. Thereafter, he was convicted of possession of marijuana with intent to distribute and possession of cocaine, for which the court sentenced him to consecutive terms of four years and two years, respectively.
*366 On appeal, appellant poses a single question: “Did the trial court err in denying [his] motion to suppress the cocaine and marijuana found in his car?” That question requires us to focus on whether the lawful traffic stop ripened into an illegal detention or, instead, a consensual encounter in which appellant voluntarily consented to the vehicle search.
SUPPRESSION HEARING FACTS
The court held a suppression hearing on September 28, 2000. The following evidence was adduced at the hearing.
Deputy Mark Meil of the Queen Anne’s County Sheriffs Office testified that, on the evening of March 26, 2000, he was working stationary radar near Route 302 and Dixon Tavern Road in Queen Anne’s County. At around 7:30 p.m., he clocked a black 1999 Mercury traveling westbound on Route 302 at 65 m.p.h.; the zone had a posted speed limit of 50 m.p.h. Accordingly, the deputy activated his emergency equipment and executed a stop of the car. Upon exiting his vehicle, the deputy approached the driver’s side of the Mercury. Appellant, who was sitting in the driver’s seat, was the sole occupant of that vehicle. The deputy told appellant that he had stopped him for speeding. In response to the deputy’s request, appellant produced his license and vehicle registration. Appellant also responded to an inquiry from the deputy by stating that he had two points on his license.
The deputy returned to his cruiser and ran a check of appellant’s license and registration, and “a criminal check for any caution codes for officers’ safety.” Shortly thereafter, the deputy learned that appellant’s license was valid, the vehicle was registered to Green, appellant' had several points on his license, and there were no outstanding warrants for Green’s arrest. The deputy testified that he decided to issue a warning citation to appellant, which he wrote while in the cruiser.
As the deputy walked towards appellant’s car, he was advised, via police radio, that appellant had “prior caution codes for armed and dangerous and ... drugs.” Nevertheless, Meil advised Green that he was issuing a warning citation *367 to him for speeding. Moreover, Meil said that he returned appellant’s license and registration at that time, and also gave him the warning. Additionally, Meil asserted that he “advised [appellant] that he was free to go.... ” In view of Green’s “past history,” however, Meil immediately asked appellant whether he would “mind answering a few questions before he [left] the scene.... ” According to the deputy, appellant responded, “ ‘Sure.’ ” Appellant does not dispute that he said “sure” in response to the deputy’s request.
While appellant was seated behind the steering wheel, with the keys in the ignition, the deputy asked appellant whether he had any guns, drugs, or alcohol in the car. Appellant responded, “No.” Meil testified that he then made another request of appellant; he asked Green “if he would consent to a search of his person and vehicle.... ” According to Meil, appellant replied, ‘Sure. Go ahead.’ ” Appellant disputes that comment.
After Green consented to the searches of person and vehicle, the deputy asked appellant to exit the vehicle “for officer safety given [appellant’s] past criminal history of armed and dangerous, not knowing whether there might be a hand gun in the vehicle.” Moreover, after appellant gave his consent, the officer called for back-up, for the purpose of “watch[ing] the Defendant while [Meil] searched the vehicle.” The deputy explained that he made the request for back-up for “officer safety,” because he could not watch Green while also searching the car. When asked what the officer was “worried” about, Meil answered: “Given the area and location, it was extremely dark out, [appellant] was much larger than I was, his past criminal history of violence with hand guns, I didn’t feel good about that at all.” The deputy did not tell appellant that, if he consented to a search, he would have to wait for the arrival of a back-up unit.
When appellant exited his car, Deputy Meil frisked appellant and searched his pockets, but found nothing noteworthy. The deputy then “visually” looked in the “open areas” of the car at that time, but did not observe anything significant. *368 Deputy Meil did not conduct a full scale search of the car at that time. Instead, he and appellant waited about fifteen minutes for the arrival of the back-up unit; only then did Meil conduct a thorough vehicle search.
According to Meil, appellant “was free to go at any time.” Meil acknowledged, however, that although he told appellant he was free to go at the time he returned appellant’s documents, he never informed appellant that he could refuse to consent to the frisk or the vehicle search. Moreover, Meil never informed appellant that he could leave if he did not want to continue to wait for the arrival of the back-up unit. Deputy Meil maintained, however, that appellant never said that he wanted to leave, nor did appellant indicate that he changed his mind about allowing Deputy Meil to search his car.
Meil acknowledged that appellant “was cooperative the whole time,” stating: “I never had a problem with him.” Moreover, Meil conceded that appellant never tried to escape during the encounter, he never threatened Meil in any way during the stop, and he never made any “furtive movements” suggestive' of an effort to hide contraband or retrieve a weapon. In short, the deputy did not identify anything about appellant’s conduct or behavior that amounted to reasonable, articulable suspicion to continue the detention. While Meil and Green waited'for back-up, Meil learned from appellant that appellant had been convicted of armed robbery about fifteen years earlier.
Corporal Riggleman testified that, at about 7:45 p.m. on March 26, 2000, he was advised to respond-to the scene. He recalled that it took him about 15 to 20 minutes to reach the location. When asked if he was at the scene “to make sure [that] appellant didn’t leave,” Riggleman answered,' “Correct.”
Upon the arrival of Corporal Riggleman, Deputy Meil searched appellant’s car while the corporal watched appellant. The search began at about 8:04 p.m. During the search, the deputy’s attention was drawn to the center console by the faint odor of marijuana. The deputy opened the console and found a black zipper bag containing two bags of a green leafy *369 substance. The zipper bag also contained 110 bags of various colors and sizes; they contained a white rock like substance of suspected cocaine. Appellant was then arrested.
Appellant also testified at the hearing. Much of his testimony was consistent with the State’s evidence or was never disputed by the State.
On the night in question, appellant was driving on Route 302 in his 1999 Mercury Sable when he was stopped for speeding by Meil. He produced his license and registration, which Meil took back to his cruiser. Appellant claimed that the deputy did not give him his license or registration when the deputy returned to appellant’s car. But, appellant agreed that Deputy Meil asked him if he would answer a few questions, and appellant said, “Sure.” Deputy Meil then asked whether appellant had any guns, drugs, or alcohol in his car, and appellant replied that he did not. The deputy also inquired about appellant’s criminal record, and then asked Green to submit to the search of his car. Appellant claimed that he refused to consent to a search. At that point, according to Green, Deputy Meil told him, “You have to step out of the vehicle, sir,” and appellant complied. In his testimony, Green explained that he complied because he did not believe that he had a choice. Appellant acknowledged, however, that after he was' ordered out of his car, he never told Meil that he wanted to leave.
Meil proceeded to frisk appellant. The deputy also emptied appellant’s pockets. Then, using a flashlight, the officer looked inside Green’s vehicle, while appellant was required to stand with his hands on the trunk of the car. As the officer peered into the car, appellant asked the deputy if he wanted appellant to open the trunk. Appellant testified:
[The deputy] had me stand with my hands on the trunk of my car and he went in my car. He took his flashlight. He looked under the passenger, the driver’s side of the seat first. Then he got out, closed that door and went around to the passenger’s side and looked under that seat. So, at that point, I said, “Well, do you want me to open the trunk for *370 you?” He said, “No. You just stand right there like that.” I said, “Okay.” So, at that point, he said, “Well, I’m going to call for back up.” I said, “Why I got to go through all of this for for just a traffic stop?” He said, “Because of your criminal record.”
According to appellant, upon Corporal Riggleman’s arrival, Riggleman spoke with Meil and then put his hand on appellant’s arm, while asking appellant to come back to the car with him. Appellant testified that neither officer ever advised him that he could refuse to consent to the search or that he was free to leave. After Meil searched the car, appellant was arrested. Appellant claimed that Deputy Meil did not return his license and registration to him until appellant “was on [his] way to the magistrate’s office after all this paper work and stuff was done.” Green reiterated that, while at the scene, he did not believe he was free to leave, nor did the officer tell him that he could go.
In argument, the prosecutor said: “Consent was given. It was never withdrawn. The search was valid.” The prosecutor also said: “The question here is very simple: Was the encounter after the license, registration and ticket was given back to the Defendant consensual in nature[?].” Further, the State asserted: “So, the issue is, if Your Honor believes consent was given and that’s totally a question of credibility, if you believe that consent was given, the second issue and those are the only two issues is: Was it ever withdrawn and the answer is, there are no facts to support that it was withdrawn .... ”
The prosecutor also sought to distinguish
Ferris v. State,
... Ferns talked about a number of factors. The first one, the two most important: Was he told he was free to leave? The officer tells you he told him he was free to leave. The second factor, the most important is: Removal of the Defendant from the vehicle. Here, consent was given while the Defendant’s in the vehicle. He’s got all his items back. The Defendant is in the driver’s seat with the ability to take *371 off at the point when consent is asked. Very, very different from Ferris. There isn’t any passengers, there’s no separation from the passengers. He doesn’t get him out of the car at all until after consent is given. At the time when consent is given there’s only one officer. Again, he’s told he’s free to go and he clearly could have at that point. It’s not the officer’s problem and the cases are clear. The officer has no responsibility to tell him that he has a right to refuse. It’s a factor to be considered whether a reasonable person would believe they are free to go but, he has no responsibility to do that____ Once the consent is given, then the question is, the only question is, was it ever withdrawn?
The prosecutor continued:
By [appellant’s] own testimony ... he says ... do you want me to open the trunk. He never says, hey, I want to leave. He never says, give me back, even if you believe his testimony, give me back my license and registration. I want to go. I’m tired of waiting. There’s none of that.... [I]t’s not the Court’s fault, the State’s fault, Deputy Meil’s fault that the Defendant didn’t say, I want to go. Had he, Deputy Meil testified that had he said it, he would have let him go. The point is, and Your Honor is faced with this situation all the time, which is, why, why would this person have given, granted consent? ... You hear it all the time and the answer is it happens all the time. People, for whatever reason, think that the officer is bluffing. Who know[s]? The point is, it happens all the time.
The defense attorney countered that appellant never consented to the search. He said:
[0]nce ... the initial reason for the traffic stop is satisfied ... the officer is actually under a duty to let, to expedicially [sic] issue the citation and allow the defendant to leave the scene. Now, the State’s version is, well we had consent. And so, I believe that consent is a major part of this issue because what happens is is that Mr. Green is asked out of the vehicle. He’s searched and all under the pretext that Mr. Green has given his consent to 1. be asked questions *372 and 2. to have his vehicle searched, all of which he denies and I think that if you believe his testimony or not, I think that ends it.
Alternatively, the defense lawyer argued that, even if the court did not credit Green’s testimony, the search was still illegal. He stated, in part:
If you don’t believe. Mr. Green’s denial of ... the consent to [search] the vehicle, I believe that still another seizure of Mr. Green occurs. Regardless of whether or not you believe this initial consent occurs and this is what I, kind of the main part of the thrust of my argument is this. Once the officer has Mr. Green get out of the vehicle, pats him down, does the search, looks in the vehicle which he admitted, which he testified that he did. He looked in the vehicle, looked under the seats and then came back. Once he tells [M]r. Green, I’m going to call for back up ... I believe that’s when the second seizure occurs and therefore, Mr. Green is not free to leave. And what you need to look at are the totality of the circumstances concerning that....
After outlining the similarities between the underlying case and Ferns, the defense attorney continued:
The problem that occurs is when they have to wait the fifteen to twenty minutes for Corporal Riggleman to arrive. And in fact, it was a long period to wait because even Deputy Meil testified that he had to call and check on the status of the back up unit that was supposed to come ... to the scene.... I believe that the search occurred when the deputy looked in the vehicle---- I believe that another seizure then occurs when he says, no, you have to stay here. We’re going to wait for my back up unit. And Your Honor, I think you can ... infer ... that a reasonable person is not going to feel that they are able to leave the scene when an officer has made them get out of the car, patted them down, searched the contents of their vehicle, told them that they are calling for a back up unit.... I don’t believe that a reasonable person could infer that whether or not you believe Mr. Green was given the citation and the license ... *373 I don’t think that the Court can make a finding that a reasonable person felt that they could get back in that vehicle, stop the search and leave the scene. They are waiting for another officer____ Corporal Riggleman said, “My job was to make sure that----,” and you heard that testimony and that’s unrebutted. Corporal Riggleman was there to make sure Mr. Green didn’t leave.
[E]ven if you believe that the consent was given, my argument is this, is that he was seized again once the officer makes him stay and wait for the trooper to arrive on the scene. There’s a seizure. He’s not free to go. There was no ... reasonable articulable suspicion to believe that any type of criminal activity was afoot at that time and therefore, the seizure was unreasonable and therefore the search is invalid and I’m going to ask you to suppress the search....
Thereafter, the court orally denied the suppression motion. We quote almost the entire opinion, not only for what it says, but also for what it omits:
The interesting question in this case as in so many other[s] is one involving which version one is going to believe because until one has the facts, it’s very difficult to try to figure out the law that’s going to apply especially in this very slippery area. Things are pretty close together up to a point but then the officer says that he returned the license and registration together with the warning and told the Defendant that the could leave. [T]hen [the deputy] asked if he could ask [appellant] if he could ask him some questions and the Defendant indicated that he could, these questions that were prompted by what was said to the officer over his official police channel and that being that the Defendant was dangerous and that he had some connection with controlled dangerous substances. Now, the Defendant categorically denies this and has a story which almost at every turn establishes a scenario in which the search would have been illegal.... The situation where drugs or any *374 contraband is found after a consent search to the rational person is wholly irrational and almost impels one on the basis of logic to conclude that there could not have possibly been a consent search. That is to say, if a person obviously knew that the things were there, why would they give them consent. Anyone who has had any contact with the criminal law knows that that’s one of the great unanswered questions .... But, I do know that this kind of consent is given. I also know that one has to deal with it very, very carefully because there’s still the situation that there was not real consent or that the consent was in some way coerced either not directly or circumstantially. In this case, the one telling feature as I started to say is that as the Defendant is running through his narrative rather glibely [sic], he candidly indicates that he ... invited ... unasked, the police to search the trunk of the car. Now, if he were in a hostile situation, and he had not consented in the first place, if he was, as he said, mildly irate but mildly concerned because he couldn’t understand why the search was taking place after he had said, as he says, for a minor traffic stop, why in heaven’s name would he have done that? The only real answer to that is that he did not because he had agreed to the search in the first place. That conclusion is reinforced in my mind when I see the Defendant who, as the officer pointed out in his testimony, is physically very prepossessing and was significantly larger in both height and build than the, the police officer. Moreover, he is not, as his testimony indicated, a bashful type.... [I]t’s impossible for me to believe that the situation could have occurred as [Green says] it did and at the same time he offered to use the trunk. So therefore, I’m compelled to conclude and I find as a fact that consent was actually given. That being the case, the State’s Attorney is correct that if there was some reason for the Defendant, that consent was given, it was never withdrawn. And again, one little shard of information, it came right from the Defendant, at the end or near the end of this entire (inaudible) when logically, the way he was telling it, the police were almost finished or *375 finished, he suggests prolonging it, if nothing else, by inviting them to search the trunk. He, I think, was quite aware that he could leave. He didn’t seem to be terribly threatened by the situation and he seemed to be very interested in assisting the police in what they were doing. Posturing it may have been but it nevertheless occurred and he admits it occurred. So therefore, I do not think that there was any illegal search in this case and the motion is denied.
DISCUSSION
I.
Appellant contends that the court erred in denying his motion to suppress the drugs found in his car. His argument is essentially twofold. First, citing
Ferris,
The State responds that “Green[’s] second encounter with the police was voluntary” because the traffic stop had ended and appellant was not “seized” when the deputy asked him to consent to the search. In the State’s view, “Green’s consent to search was valid because: (1) it was given during a consensual encounter and (2) Green did not withdraw that consent.” *376 Although the State concedes that it had the burden to prove, by a preponderance of the evidence, that appellant voluntarily consented to the search, it contends that it was not obligated to show that appellant had actual knowledge of the right to withhold consent to search.
The State shoulders the ultimate burden of proving that evidence seized without a warrant should not be suppressed.
See State v.
Bell,
Nonetheless, we must make our own independent constitutional appraisal as to second level findings, such as whether a search was lawful or a defendant voluntarily consented to a police entry.
Ornelas v. United States,
Appellant complains,
inter alia,
that the court below did not consider the factors identified in
Ferris,
II.
The Fourth Amendment protects against unreasonable searches and seizures.
United States v. Mendenhall,
As we noted, appellant argues that he was subjected to a prolonged, illegal second detention. In contrast, the State claims that the traffic stop came to an end and a second encounter began, consensual in character. During the second encounter, according to the State, appellant was not seized and he voluntarily consented to the search.
A seizure can occur by means of physical force or by a “show of authority,” coupled with submission to that authority.
California v. Hodari D.,
The test to determine whether a particular encounter constituted a seizure or, instead, a consensual occurrence, generally turns on whether a reasonable person would have felt free to “decline the officers’ requests or otherwise terminate the encounter.”
Florida v. Bostick,
To determine whether a reasonable person would have felt free to terminate an encounter in a particular situation, “a court must apply the totality-of-the-circumstances approach, with no single factor dictating whether a seizure has occurred.”
Ferris,
III.
This case is one of many involving a vehicle search that follows a lawful, routine traffic stop. Such cases often present “difficult analytical questions for courts... . ”
Commonwealth v. Strickler,
In Ferris, a trooper was operating a stationary radar gun at about 1:00 a.m. on Interstate 70 in Washington County, when he clocked the defendant’s car traveling 92 m.p.h. in a 65 m.p.h. zone. The trooper activated his emergency equipment, stopped the car, exited the cruiser, and approached the defendant, who occupied the driver’s seat; a passenger sat in the front passenger seat. The trooper asked the defendant, whose eyes were bloodshot, for his license and registration, which the defendant provided. Then, the trooper returned to his vehicle and verified that the defendant’s papers were valid. As the trooper was writing a speeding ticket, he noticed that the driver and the passenger were moving around and frequently looking over their shoulders at him.
About this time, a second police car arrived. The trooper spoke to the second officer, who also noticed the two men moving around in their seats. The trooper then approached the driver’s side door of the car while the second officer approached the passenger side. Although the trooper gave the defendant the citation and returned his license and registration, he did not advise the defendant that he was free to leave. Instead, he asked the defendant if “he would mind stepping to the back of his vehicle to answer a couple of questions.”
Ferris,
*381
The trial court denied the suppression motion, stating,
inter alia,
that the defendant answered the questions “without intimidation, voluntarily....”
Id.
at 366,
The Court concluded that “the traffic stop essentially came to an end upon the trooper’s delivery of the citation, and return of the driver’s license and registration,” when the officer “completed all his duties pertaining to the traffic stop itself.”
Id.
at 373,
[t]he officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention. See Royer,460 U.S. at 500 ,103 S.Ct. at 1325-26 . Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot. United States v. Sandoval,29 F.3d 537 , 540 (10th Cir.1994).
Consequently, the Court proceeded to address the “more difficult question” of whether the officer’s questioning of Ferris after his documents were returned and the citation was issued amounted to a detention or seizure under the Fourth Amendment or, instead, “a ‘consensual
encounter...Id.
at 373,
Nevertheless, the Court agreed with Ferris that what occurred after the completion of the traffic stop constituted a seizure, not a consensual encounter.
Id.
at 374,
With respect to the question of whether a reasonable person in Ferris’s situation would have felt “ ‘free to disregard the police presence and go about his business,’ ”
id.
at 376,
Noting that the inquiry is “highly fact-specific,”
id.
at 377,
“First and foremost,” the Court pointed to the initial traffic stop, which the Court said “enhanced the coercive nature of the situation____”
Id.
at 378,
Concerning the trooper’s failure to advise Ferris that he was free to leave, the Court observed that a defendant’s knowledge of the right to withhold consent is a factor in analyzing “the voluntariness, and thus constitutional validity of a defendant’s purported consent.”
Ferris,
Finally, we note the geographic and temporal environment of the encounter: late at night on the side of a presumably desolate, rural interstate highway. The time and location of the encounter would have been unsettling to *384 a reasonable person in Ferris’s position. Consequently, the physical environment of the encounter between Trooper Smith and Ferris heightened the coerciveness of the encounter.
Based on the “cumulative effect of these circumstances,”
id.
at 379,
The pre-existing detention of Ferris, properly sustained by the probable cause for .the speeding violation, combined with the other factors we have identified, leads to the conclusion that a reasonable person in Ferris’s position would believe that continued submission to Trooper Smith was required. Although in this case Trooper Smith returned Ferris’s driver’s license and registration, that fact alone is not dispositive of whether the trooper’s conduct was coercive. The moment at which a traffic stop concludes is often a difficult legal question, not readily discernible by a layperson. It is not sound to categorically impute to all drivers the constructive knowledge as to the precise moment at which, objectively, an initially lawful traffic stop terminates, i.e., the time at which the driver may depart. The trooper’s immediate transition into the inquiry was so seamless that a reasonable motorist would not have believed that the initial, valid seizure had concluded.
Id.
at 379,
Concluding that Ferris “was seized, for a second time, when he was 'asked ,to exit his car,”
id.
at 384,
We emphasize that, although, standing' alone, no single circumstance would have transformed the encounter into a Fourth Amendment seizure, the collective coerciveness of *385 the totality of those circumstances rose to the level of a show of authority such that a reasonable person in Ferris’s position would not have felt free to terminate the encounter with Trooper Smith at the moment the trooper asked him “if he would mind stepping to the back of his vehicle.” Accordingly, we hold that Trooper Smith, having lawfully detained Ferris pursuant to a valid traffic stop, seized him within the meaning of the Fourth Amendment when, immediately after completing the traffic stop, he asked Ferris to get out of his car and began to question him about possible criminal activity unrelated to that which gave rise to the initial, completed traffic stop.
Id.
Because the trooper’s continued detention exceeded the scope of the initial traffic stop, and constituted a second seizure for which there was no voluntary consent, the Court recognized that the second stop had to be supported by reasonable, articulable suspicion in order to be lawful.
Ferris,
This Court’s decision in
Charity,
Although the trial judge found the frisk consensual, as the State had argued, the Court determined that the consent was invalid, because it was obtained from the defendant during an
*386
illegal second detention.
Charity,
If the consent were sought and given during a period of unconstitutional detention ... that factor alone, absent attenuation between the initial taint and the presumptively poisoned fruit, would be dispositive that the consent was not voluntary. Wong Sun v. United States,371 U.S. 471 ,83 S.Ct. 407 ,9 L.Ed.2d 441 (1963).
We have held that the appellant was being unconstitutionally detained at the time [the police officer] asked him to consent to a pat-down. That unconstitutional detention began when he was asked to get out of his vehicle in the 'rain and move to its rear. It continued as he was questioned by [the officer] as to where he had been and where he was going. It continued as [the officer] left him standing in the rain and went off to question the passenger as to where he had been and where he was going. It continued as [the officer] returned and sought the appellant’s consent to the pat-down as. a necessary precondition for the appellant to be allowed to get out of the rain and to sit in the police cruiser. There was no attenuation between the tainted detention and the ostensible consent. The consent was the “fruit of the poisoned tree.”
Id.
at 634,
The Court also relied on the observations in
Ferns
regarding “the coercive effect” of “certain police actions ... on the stopped motorist....”
Id.
at 636,
Writing for this Court in
Carter v. State,
We are further guided by
Pryor v. State,
Whitehead v. State,
The detention in Whren that the Supreme Court approved was brief, and the arrest for violation of the narcotics laws instantaneously followed the stop. We think it would be a mistake to read Whren as allowing law enforcement officers to detain on the pretext of issuing a traffic citation or warning, and then deliberately to engage in activities not related to the enforcement of the traffic code in order to *388 determine whether there are sufficient indicia of some illegal activity. Stopping a car for speeding does not confer the right to abandon or never begin to take action related to the traffic laws and, instead, to attempt to secure a waiver of Fourth Amendment rights from a citizen whose only offense to that point is to have been selected from among many who have been detected violating a traffic regulation. An interpretation of Whren that is consistent with Snow and Munafo requires the police to issue the citation or warning efficiently and expeditiously with a minimum of intrusion, only that which is required to carry forth the legitimate, although pretextual, purpose for the stop. We are condemning not the stop itself but the detention after the pretextual stop that was for the purpose of determining whether the trooper could acquire sufficient probable cause or a waiver that would permit him to search the car for illegal narcotics.
Id.
at 506-07,
Munafo,
[T]he purpose of a traffic stop is to issue a citation or warning. Once that purpose has been satisfied, the continued detention of a vehicle and its occupant(s) constitutes a second stop, and must be independently justified by reasonable suspicion.
Id.
at 670,
*389 IV.
Appellant vigorously denied having consented to the vehicle search, but the suppression court found as a fact that appellant consented and never withdrew that consent. In making its first level factual findings, the judge did not expressly determine whether the deputy’s conduct amounted to a second detention, nor did it discuss the factors identified in Ferris. Rather, it merely credited the deputy’s version of events as to consent, noting that Green was significantly larger than the officer, he was not “bashful,” and felt so unthreatened by the officer’s conduct during the initial car search that he suggested “prolonging” the search “by inviting” the deputy to search the trunk.
Although we accept the circuit court’s first level finding that the appellant “consented” to the search, we must independently determine the voluntariness of that consent, in light of the character of the encounter that culminated in that consent. The threshold question is whether the continued encounter after the completion of the traffic stop constituted a suspicionless seizure under Fourth Amendment law or, instead, a consensual encounter. A consent to search procured during an illegal detention is invalid as the product of the illegal seizure—the so called fruit of the poisonous tree.
See Royer,
The State and appellant discuss the issues in the context of two encounters: the traffic stop and the prolonged period after the traffic stop. Appellant argues that, even though he was found to have consented to the search, he did not consent to a search to be conducted about thirty minutes later. In other words, he claims that the delay in conducting the search vitiated his consent. In contrast, the State argues that appellant’s consent remained in effect throughout the time that appellant and the deputy waited for the arrival of the back-up unit, because appellant failed to expressly revoke his consent.
*390 To be sure, this case presents a clear point of demarcation at which the traffic stop came to an end and the next police encounter began. The encounter that followed the traffic stop can be considered as if it were one long encounter, as the parties have suggested. Analytically, however, we shall divide the post-traffic stop encounter into two discrete components. In doing so, we shall refer to a total of three encounters and two car searches. The second encounter followed on the heels of the traffic stop, as the parties recognize. That encounter included the first car search. The third encounter began after the deputy frisked appellant and completed his initial search of the vehicle.
The legality of the second stop is arguably a close question. We need not resolve whether it was a lawful consensual encounter, however, because we regard the third detention as illegal, and it was during that detention that the second car search occurred.
In reaching our conclusion that the third detention and second car search were illegal, we have considered the totality of all the circumstances, from the beginning of the traffic stop until the second vehicle search. In doing so, we rely on Ferns and its progeny; Ferns analyzed the legality of the detention beginning with the initial traffic stop. In our view, a reasonable person in Green’s situation would not have believed that he was free to terminate the third encounter, during which the second car search occurred. We explain.
The traffic stop terminated just after 7:30 p.m., when the deputy claimed that he returned appellant’s license and registration and tendered the warning to him. At that point, the purpose of the traffic stop was satisfied.
See Charity,
*391
The State does not claim that the stop was prolonged based on reasonable, articulable suspicion of wrongdoing by appellant, as embodied in
Terry v. Ohio,
With respect to the Deputy’s request at the end of the traffic stop to question appellant, Green said, “sure.” He again responded “sure” as to the request to search. But, a defendant’s utterance of consensual words does not necessarily render a statement voluntary for Fourth Amendment purposes. The statement must be considered in light of the circumstances. In Ferns, for example, the defendant was asked if he would mind stepping to the back of the car to answer questions, and the defendant said he “didn’t mind.” That statement is akin to Green’s responses of “sure.” Yet, as we explained at length, the Court in Ferns did not consider the defendant’s statement as voluntary.
The State maintains that when the deputy asked Green to answer questions, this did not amount to improper conduct. It notes that when an officer poses questions to an individual, it does not necessarily amount to a seizure. In general, we agree.
See Drayton,
- U.S. -,
Further, the deputy did not tell Green that he could decline to answer the deputy’s questions, refuse to submit to the frisk, withhold consent to the first or second vehicle search, or leave the scene, rather than continue to wait for the arrival of a back-up unit. An officer’s failure to advise of the right to refuse consent is a relevant factor in the voluntariness analysis, although it is not determinative.
Ohio v. Robinette,
The deputy testified that, as soon as Green consented to the frisk and the car search, he called for back-up. Once the back-up hnit was called, a reasonable person in Green’s situation would not have believed he could terminate the encounter. Moreover, while waiting for the back-up, the deputy inspected Green’s vehicle. The deputy testified: “I visually checked the open areas in plain view.” As we see it, even if appellant had voluntarily consented to a car search, the consent applied to the search that promptly followed the consent.' When that search was completed, the second encounter carné to an end; appellant never consented to a continued encounter or to a second car séarch. Nor did Green agrée to a search that depended upon the arrival of a back-up unit. Indeed, there was no evidence that Green consented to *393 wait some fifteen or twenty minutes for the arrival of the back-up unit, so that a more comprehensive vehicle search could be performed.
The State has not provided us with any authority to suggest that the consent provided by appellant at the end of the routine traffic stop was open ended, with no temporal limitations. There was no evidence, as we said, that appellant agreed to such a protracted detention.
See Maine v. Faulkner,
In
Gray, supra,
The Delaware court reasoned that the defendant voluntarily-executed a written consent to search that was limited to the watch, and the police did not exceed the limited scope of the consent. Moreover, the court noted that the police did not proceed to Philadelphia immediately upon obtaining a consent, because they knew the watch was safe. Additionally, the defendant saw the watch as it was turned over to the Delaware police and never objected. The limited nature of the search, conducted in strict accordance with the scope of the consent, led the court to uphold it. Id. at 222.
Other factors, in accordance with the factors considered in Ferns, are also relevant here, under our totality of circumstances analysis. For example, although the deputy never told appellant that he was under investigation for criminal misconduct, calling for back-up would generally signal to a reasonable person that the continuation of the encounter is not really a matter of choice. Significantly, Corporal Riggleman’s acknowledgment in his testimony that he was at the scene to make sure Green did not flee belies the State’s assertion that appellant remained at the scene voluntarily, or that appellant was' free to terminate the encounter.
We also note that the deputy asked appellant to step out of the vehicle. Certainly, the deputy was entitled to order appellant out of the car as an incident of the traffic stop.
Maryland v. Wilson,
The conditions at the time of the stop are also important. Although the events in this case did not occur in the early morning hours, as in Ferris, there is no question that it was dark when the stop occurred. Indeed, the deputy expressed concern for his own safety because of the conditions. Meil specifically said he was “worried,” and called for back up, in part because of the “area and location” of the stop and because it was “extremely dark out.” As we see it, those factors are equally relevant in assessing whether appellant would reasonably have believed he was free to terminate the encounter.
The trial court considered it significant that Green asked Meil whether the deputy wanted to look in the trunk. Appellant’s inquiry came during the period that we have referred to as the second encounter. We do not consider that inquiry dispositive as to the voluntariness of the consent during the third encounter. In any event, Green’s inquiry was consistent with the cooperative conduct that he displayed, but does not signify that he believed he was free to terminate the encounter. Indeed, appellant’s inquiry, a sign of his cooperation, may even have been a product of the coercive circumstances. Cf
. Drayton,
— U.S. at -,
The circuit court’s reliance on appellant’s size is equally unpersuasive as to voluntariness. The record is not clear as to the comparative sizes of appellant and the trooper. What is clear, however, is that it was the trooper who was armed, although his weapon was not drawn.
*396
Our research has uncovered a recent New Jersey decision concerning a traffic stop and consent search that is illuminating in the context of this case. In
New Jersey v. Carty,
In reaching its conclusion, the court criticized as “problematic,” id. at 909, the “standardless” way in which “consent” searches are made of persons who are lawfully stopped for minor traffic violations. Id. at 908. The court remarked that “[r]oadside consent searches are ... akin to an investigatory stop that does not involve a detention,” id. at 908, observing that such stops have “traditionally ... required reasonable and articulable suspicion.” Id. Moreover, the court indicated its concern as to the frequency with which requests to consent to a car search are “likely to be complied with.” Id. at 912. Indeed, it recognized that many people subjected to such requests believe they have no choice but to consent. Id. at 910.
Although the
Carty
decision is premised on New Jersey constitutional law, the court noted that the “reasonable and articulable suspicion standard is a well-established constitutional requirement under the Fourth Amendment____”
Id.
at 914. In its view, “[c]onsent that is the product of official intimidation or harassment is not consent at all.”
Id.
at 911 (quoting
Florida v. Bostick,
Several other jurisdictions have reached similar results.
See,
e.g.,
United States v. Valadez,
CONCLUSION
In our view, the legality of the prolonged detention, without any reasonable suspicion of wrongdoing on the part of Green, must be considered in light of the strict time constraints that govern a routine traffic stop. We are unable to say, based on the totality of all the circumstances, that appellant voluntarily consented to the third encounter or the second vehicle search.
*398 At the most, Green’s consent would have been limited to the second encounter, which was the period encompassing the questioning, frisk, and first car search. That consent, by Meil’s own testimony, was given before the deputy called for back-up. Once the back-up unit was called, the stakes were clearly raised, and a reasonable person would not have believed he or she could terminate the encounter. Nor is there any evidence that appellant’s consent embraced the period of approximately fifteen to twenty minutes after the first car search, while Green and the deputy awaited the arrival of the back-up unit, or a total period of about thirty minutes, from the end of the traffic stop to the commencement of the second car search.
We conclude that the second vehicle search occurred well beyond the period of any consent that appellant may have given. In other words, appellant did not consent to a search that occurred about thirty minutes after the end of the traffic stop. Therefore, the extended detention was unlawful, and the search exceeded the temporal scope of appellant’s consent. Because the second car search occurred during an illegal detention, the court erred in denying the suppression motion.
JUDGMENTS VACATED. CASE REMANDED TO THE CIRCUIT COURT FOR QUEEN ANNE’S COUNTY FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY QUEEN ANNE’S COUNTY.
Dissenting Opinion by EYLER, JAMES R., J.
As does the majority, I accept the trial court’s resolution of the credibility issues. This includes the finding that appellant consented to the search in question.
With respect to this Court’s independent constitutional appraisal, I agree with the majority that there was a valid traffic stop which was completed when the officer issued a warning citation and returned appellant’s driver’s license and vehicle registration. In my view, however, there was no subsequent seizure but rather a consensual encounter.
See U.S. v. Drayton,
— U.S.-,
In the case before us, there was one officer; appellant was advised that he was free to go after his documents had been returned to him; and appellant consented while he was in his vehicle, before the officer called for backup, thus consenting prior to any action by the officer. There was no coercive behavior, and the consent was never withdrawn.
I would affirm.