Commentary on May the Police Ask for Consent to Search at the Conclusion of a Traffic Stop?

by H. Troy Nicks, J.D., Instructor, Central Virginia Criminal Justice Academy, Email: troy.nicks@lynchburgva.gov

Here are a few thoughts regarding Professor Call’s analysis of current case law covering extended traffic stops.

     As I acknowledge during discussion with police recruits in my 4^th Amendment-related classes, it’s frustrating for officers to operate under the complex rules the Courts have established concerning police procedure. That is, until we put ourselves in the Courts’ position, of having to define the fine line between living in a police state versus a society that respects individuals’ rights. That job of definition is made ever more difficult in the context of evolving technology, changing social mores and ideological and political controversies.

     Prominent police training resources urge officers to exploit opportunities created by courts’ approval of pretext stops. I agree with Prof. Call’s suggestion that it’s a legal fiction to say that the average citizen would feel free to just drive off if an officer says, “You’re free to go, but first I’d like to ask you a few questions…” It seems that the pretext stop doctrine in reality is endorsement of low-level profiling. If that’s indeed what’s involved, a more logical (and candid) approach would be for the Courts to define a new genre of reasonable seizure – one based on articulation of something less than reasonable suspicion (but which could not rely on any class-prohibited factors) and which would permit only the briefest additional constraints on a citizen’s liberty. (Yes, I know, thus adding yet another level of complexity.)

      Some officers will say, who cares if the judge throws out evidence of some pills or an illegal firearm? But that isn’t the whole story. What if a detention escalates to a fight and the officer then finds himself a defendant in a civil suit resulting from a seriously injured citizen? Or, given the same fight scenario but it’s the officer herself who’s seriously injured? Worse yet, the citizen charged with assaulting the officer may be able to successfully defend because the officer’s action’s leading to the fight were unlawful.

     Those potential negative outcomes are the price to be paid if the Courts create or fail to clarify muddy waters which leave room for police tactics that “push the envelope”. Otherwise, smart officers can continue to be successful by operating clearly within the principal boundaries of judicial guidance.