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

by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail:

See the next article in this issue for a commentary on this article.

               In the final issue of THE VIRGINIA POLICE LEGAL BULLETIN,[1] I wrote an article on a decision of the U.S. Supreme Court, Rodriquez v. United States (2015),[2] holding that the police could not prolong a traffic stop to enable a dog trained to detect drugs to walk around a vehicle that had been stopped.  Once the purpose of the traffic stop has been concluded, the Court said, there remains no constitutional justification for the continued detention of the person who had been stopped.

               One of the questions I posed toward the end of that article is whether Rodriquez means that the police may not, as a practical matter, obtain consent to search incident to a traffic stop.  The argument advanced in that article was that if the police asked for consent to search prior to completion of the traffic stop, the consent should be viewed as involuntary (and therefore unconstitutional under Schneckloth v. Bustamonte[3]).  On the other hand, if the officer making the traffic stop waits until after the traffic stop has been concluded to ask for consent to search, the traffic stop could be viewed as having been improperly extended under Rodriquez.  This article examines the case law that has developed in Virginia and the 4th Circuit Court of Appeals that is relevant to this issue.

               The analysis suggests that the police may constitutionally seek consent to search a vehicle after the conclusion of a traffic stop so long as they are careful to handle the conclusion of the traffic stop in such a way as to make it clear to a reasonable person that the traffic stop has ended before asking for consent to search.  The article begins with a discussion of the definition of a seizure of a person.  Then the reported cases from the Virginia appellate courts and the 4th Circuit Court of Appeals are analyzed.  The next section of the article examines the unreported decisions of the Virginia Court of Appeals.  The article concludes with an assessment of the implications of these cases for Virginia law enforcement officers and a critique of the law created by these cases.

What Constitutes a Seizure Under the Fourth Amendment?

               The Fourth Amendment prohibits unreasonable searches and seizures.  When the police detain an individual, they have seized that person.  The U.S. Supreme Court has established a relatively clear-cut definition of the seizure of a person under the Fourth Amendment.  The first Supreme Court case addressing the seizure definition in a meaningful way was United States v. Mendenhall.[4]  Although only two Justices (Stewart and Rehnquist) addressed the seizure issue, they used language that has influenced the seizure definition ever since.  They indicated that a person has not been seized under the Fourth Amendment unless, under the circumstances, “a reasonable person would have believed that he was not free to go.”

               Eleven years later, in California v. Hodari D.,[5] the Court made it clear that the show of authority requirement for a seizure enunciated by Justices Stewart and Rehnquist in Mendenhall was not enough.  In Hodari D., the police had approached a group of men on the street and told them they wanted to talk with them.  Hodari D. took off running and discarded an object (later determined to be a rock of crack cocaine) while the police were chasing him.  Shortly thereafter, the police caught up to Hodari D. and tackled him.

               The issue was determining when the police had seized him (since it was questionable whether the police had sufficient cause to detain him when they first approached the group of men).  The Court concluded that the show of authority made by the police when they told the group of men that they wanted to talk with them was insufficient alone for a seizure.  In addition, there had to be either submission to that show of authority or the exercise by the police of physical control over the suspect.  In Hodari D., the Court held that a seizure did not take place until the police tackled Hodari D.[6]  Thus, there is no seizure under the Fourth Amendment unless there is a sufficient show of authority by the police, combined with either submission to that show of authority by the suspect or physical control of the suspect by the police.

               As definitions of constitutional terms go, the Court’s definition of seizure is relatively straightforward.  In the traffic stop/consent to search cases, the issue is seldom whether the suspect was seized.  The issue instead is whether the seizure has ended and the encounter between the suspect and the officer who stopped him is now consensual in nature.

Reported Virginia and 4th Circuit Cases on Consent Searches Pursuant to Traffic Stops

               There are three Virginia appellate court cases and two decisions from the 4th Circuit Court of Appeals dealing with the issue of whether consent to search a vehicle came after an improper prolonging of a traffic stop.  The first Virginia case, Dickerson v. Commonwealth,[7] was decided prior to Rodriquez.  A deputy sheriff in that case had conducted field sobriety tests with Dickerson at the rear of Dickerson’s car.  After deciding not to cite him for any alcohol-related offenses, the deputy told Dickerson he was free to go and followed Dickerson to the driver’s side of Dickerson’s car.

                As Dickerson was about to get back into his car, the deputy asked him if there was anything in the car he should know about, such as drugs.  Dickerson said there was not, but in response to a direct question, he admitted that he smoked marijuana, although not when he was driving.  He then gave the deputy an ashtray with “roaches” in it.  The Virginia Supreme Court concluded that because Dickerson had been told that he was free to go and was in the process of entering his car when the deputy asked him about whether there was anything in the car he should know about, “a reasonable person would have felt free ‘to disregard the police and go about his business.’”  Thus, this was a consensual encounter.

               The court was careful to distinguish this case from Reittinger v. Commonwealth, a very important Virginia Supreme Court seizure case decided three years earlier.[8]  In Reittinger, Deputy Sheriff Bolen stopped a van because the van had "only one operable headlight."  The deputy decided to give Reittinger a verbal warning because Reittinger showed him a new headlight that he was going to install.  Deputy Bolen then told Reittinger that he was "free to go."

               Immediately thereafter, however, Deputy Bolen asked Reittinger whether he had any illegal weapons or drugs in the vehicle.  Reittinger stated that he did not.  Deputy Bolen then asked Reittinger for permission to search the van and asked him two more times while Reittinger appeared to consult with passengers in the van.  Without answering the deputy, Reittinger got out of the van. Deputy Bolen saw a "large bulge" in Reittinger's right pants pocket, conducted a "pat down" search of Reittinger, and felt something hard in the pocket.  Fearing that the object might be a weapon, Deputy Bolen ordered Reittinger to empty his pocket.  Reittinger removed a smoking pipe containing marijuana residue.  The Virginia Supreme Court held that at the time Reittinger exited his vehicle, a reasonable person would have concluded that the repeated requests for consent to search meant that they were not free to go.  Therefore, Reittinger was seized.

               The Dickerson court distinguished Reittinger on the basis that Reittinger “never took any action to leave or indicated in any way that he was going to leave, even after being told he was free to go.”  After being told he was free to go, Dickerson moved from the rear of his vehicle to the driver’s side door and opened the door, suggesting that he (and a reasonable person) felt free to leave.

               The second reported Virginia case, Harris v. Commonwealth,[9] was decided the same day as Dickerson.[10]  Harris was stopped because his truck had a broken license plate light.  He was unable to produce a valid driver’s license and gave the officer who stopped him a Social Security card instead.  After the officer confirmed by radio that Harris did have a current driver’s license, he decided not to charge him.  The officer returned the Social Security card to Harris but did not tell him he was not going to be cited or that he was free to go.  Instead, the officer asked for consent to search Harris’ truck and found some stolen items in the vehicle.

               The Virginia Supreme Court concluded that “we believe that a reasonable person would not have known that the investigation of the traffic offense had terminated [at the time Harris was asked for consent to search] and, thus, would not have felt free to disregard the officer's questions or have felt free to leave.”  Therefore, Harris was still seized, and since the officer had no basis for continuing to detain him, his consent to search was invalid.

                The third reported Virginia case of relevance came from the Virginia Court of Appeals in 2015, after Rodriquez was decided.  In Matthews v. Commonwealth,[11] Matthews was stopped for having a dangling object hanging from his rear view mirror.  The court held that the officer in this case extended the traffic stop unconstitutionally, under Rodriquez, because he asked about Matthews’ criminal history, asked him if his tattoos were prison tattoos, and called for a K-9 unit.  Thus, “Matthews’ detention exceeded the time reasonably necessary to address the dangling object traffic violation.”

               In Arizona v. Johnson,[12] the U.S. Supreme Court had suggested that a traffic stop could be briefly extended, so long as the extension did not “measurably” prolong the traffic stop.  In Matthews, the Virginia Court of Appeals made it clear that Rodriquez eliminated the “de minus delay” rule that Johnson had been viewed as creating.  However, the court did not apply the exclusionary rule in this case, because Matthews was stopped prior to the release of the Rodriquez case.  In the court’s view, the officer who stopped Matthews acted in good faith reliance on the Johnson rule.  The Matthews case is significant not only because it held that the officers’ actions in that case had extended the traffic stop unconstitutionally, but also because it made it clear that even a “de minimus” extension of the traffic stop is impermissible after Rodriquez.

                The first of the two 4th Circuit cases, United States v. Hill,[13] is a very pro-police case.  It involved a 20-minute traffic stop of a vehicle that was “slightly exceeding the posted speed limit” and crossed a double yellow line.  Hill was a passenger in the car who was unable to produce identification.  However, one of the officers knew his name anyway.  The names of both the driver and Hill were run through the DMV and NCIC databases.  In addition, their names were run through PISTOL, another database operated by Richmond that “tracks every person who had had prior contacts with the police in Richmond.”  One of the officers testified that PISTOL “can be a lengthy process” when the name run through the system is a common name, as was the case here.

                Hill objected to the fact that, although there were two officers in the police car that stopped the car in which he was riding, one of the officers spent his time chatting with Hill and the driver rather than helping with the tasks of running the records checks and writing the summonses.  (During this “chat,” the officer asked Hill and the driver three times whether they had drugs or firearms in the car, resulting in Hill eventually responding that he had a firearm on his person).  Hill also objected to the officers making a call for a K-9 unit and running the PISTOL search.

               The majority in this case agreed with Matthews that Rodriquez prohibits even a de minimus extension of the traffic stop.  Nevertheless, they held that the officers were permitted to run the PISTOL check and have one officer remain with the car’s occupants in order to insure the officers’ safety.  They also held that the request for the K-9 unit did not extend the traffic stop (without significant explanation, unfortunately).  In addition, the majority made a specific finding that “we are not confronted here with an officer’s decision to execute a traffic stop in a deliberately slow or inefficient manner.”

                The dissenting judge, Senior Circuit Judge Davis, in a rather brief opinion, took the position that since Hill was merely a passenger in the car, “every minute Officer Taylor spent seeking to confirm Hill’s identity unreasonably prolonged the traffic stop.”  Judge Davis made clear his feelings that “[t]his was no mere traffic stop.  Rather it was a narcotics and firearms investigation, undertaken in the absence of reasonable suspicion (to say nothing of probable cause) that a narcotics or firearms violation was taking place.”  The majority did not directly respond to Judge Davis’ argument.

               In the second 4th Circuit case, United States v. Bowman,[14] a state trooper stopped Bowman’s vehicle for driving 10 miles over the speed limit and “weaving over the fog line.”[15]  This was very likely a pretext stop, because the trooper had received a DEA tip about a red Lexus that might be transporting drugs – a tip that provided an insufficient basis for stopping this car.  While Bowman was still in the trooper’s car, the officer issued Bowman a warning, returned his license, and shook his hand.  He then asked Bowman if he could speak with him further, and Bowman agreed.

                About 40 seconds later, the trooper told Bowman he was going to go back to Bowman’s car (which had a passenger) and told Bowman to “just hang tight right there, okay.”  The court concluded that what may have been a consensual encounter (after the trooper shook Bowman’s hand) became a seizure when the trooper told Bowman to “hang tight” and reasonable suspicion to justify that seizure was lacking.  Therefore, the traffic stop of Bowman was impermissibly extended in violation of Rodriquez.  As a result, the evidence obtained from a canine sniff that occurred after the “hang tight” comment was inadmissible.

Relevant Unpublished Virginia Court of Appeals Cases

               The Virginia Court of Appeals has decided six cases by memorandum opinion since Rodriquez that deal explicitly with the issue of whether a traffic stop was extended improperly.  Memorandum decisions are “not designated for publication.”  Rule 5:1(f) of the Rules of the Virginia Supreme Court indicates that the citation of such opinions is “permitted as informative, but shall not be received as binding authority.”  Electronic legal databases, such as Nexis-Uni (formerly Lexis-Nexis) and Westlaw, include these opinions, making them readily accessible to legal researchers.  Nevertheless, this policy places these opinions in a kind of legal purgatory.  It can be argued that unpublished opinions are not reasoned as carefully as published opinions because judges know that these cases do not carry the same weight as published opinions.  Nevertheless, they can certainly be instructive, so they have been included in the analysis in this article.

               One of these six opinions involved a relatively easy case.  In Johnson v. Commonwealth,[16] Johnson was stopped for driving with a defective headlight.  While the officer was doing a records check, he summoned a K-9 unit.  The court determined that 10 minutes after the stop began, the officer had concluded his traffic offense issues.  The stop lasted another 9 minutes for the K-9 walk-around.  The court held that this impermissibly extended the traffic stop, under Rodriquez.

               In another relatively straightforward case, Commonwealth v. Law,[17] the Court of Appeals held that there was no extension of a traffic stop because the officer had returned all of Law’s documents and issued him a warning before asking for consent to search his car.  “No evidence was shown to indicate that McCarty, the sole officer on the scene, engaged in aggressive or coercive behavior during his entire interaction with [Law].”  Once Law was informed of the resolution of his case, the court said, a reasonable person would have understood that they were free to go.

                In Morris v. Commonwealth,[18] Morris was stopped because a records check revealed that his car had been impounded.  After he was stopped, Morris produced a receipt indicating that he had properly picked up the vehicle.  Nevertheless, the patrol officer decided to check on whether the vehicle was still supposed to be impounded.  While the officer was doing that, another officer (already on the scene) said he was going to walk a drug dog around the vehicle.  While they were bringing the dog to the vehicle, Morris drove off (and apparently threw a bag of drugs out of the vehicle at a point where he was not visible to the pursuing officers).

                The court held that the initial traffic stop had not been impermissibly extended under Rodriquez because the officer was still “determining the proper status of [Morris’] vehicle …. [and] was still in possession of [Morris’] license, registration, and receipt and trying to complete the mission of the stop when [Morris] fled.”  Unfortunately, the court does not directly address Morris’ argument that when he produced a receipt for the vehicle from the impoundment lot, the stop should have ended.  Instead, the court gave the benefit of any doubt to the police in this case.

                In Harrod v. Commonwealth, Officer Walzak made an appropriate traffic stop of Harrod and then did three things that Harrod argued resulted in an impermissible extension of the stop.  First, the officer called for backup.  Second, he called for a K-9 officer.  Third, while he was talking to Harrod about his license being expired, he also asked whether there was anything illegal in the vehicle.  The court held that calling for backup was appropriate for officer safety.  It also held that calling for the K-9 officer did not extend the stop because Walzak did it while “he was … acting diligently in pursuing the purpose of the stop.”  

                 The problem with this latter conclusion is that the post-Rodriquez cases discussed above are clear that any action not related to resolution of the traffic stop or required for officer safety constitutes an impermissible extension of the traffic stop.  The court concedes this point, but resolves this question by simply stating that “[t]he trial court never made any factual finding that would support the conclusion that Officer Walzak was not acting diligently in pursuing the purpose of the stop.”

                Unfortunately, the court did not address Harrod’s contention that asking about whether there was anything illegal in the car also extended the traffic stop impermissibly.  Thus, the court did not deal effectively with the strong defense argument that asking for a K-9 officer and asking whether there was anything illegal in the car extended the traffic stop in violation of Rodriquez.

               That leaves the two most interesting of the post-Rodriquez unpublished Court of Appeals cases, decided a week apart in January of 2018.  In the first case, Commonwealth v. Rivera,[19] Rivera was stopped for having a defective license plate light.  A records check disclosed that his license was suspended.  While the officer was continuing to process the traffic case, a K-9 unit arrived.  Before issuing a summons, the officer talked with other officers on the scene about Rivera’s criminal record and also explained to Rivera what the dog was going to do.  The court indicated that the discussion about Rivera’s criminal record was not problematic under Rodriquez because police officers have a right to insure their safety during a lawful stop, and this discussion related to officer safety.  However, the brief discussion about the dog walk-around prolonged the traffic stop in violation of Rodriquez.  That interaction “was not in furtherance of the purposes of the traffic stop or the accompanying concern of officer safety.”

               In Rivera, the court found it significant that the talk about the dog walk-around prolonged the traffic stop, even though in Harrod, the court seemed unconcerned that the officer asked for a K-9 unit and asked whether there was anything illegal in Harrod’s car.  Therefore, Rivera appears at first glance to be a pro-defense ruling.  However, the court also said in Rivera that when the officers “approached the defendant with the summons and the dog, rather than handing him the completed summons and obtaining his signature, they informed him that the dog would do an open-air sniff around his car and explained the procedure.”  The implication seems to be that if the officers had presented Rivera the summons and then explained the dog walk-around procedure, there would not have been a Rodriquez violation because a reasonable person would have felt free to leave after being handed a summons.  If that is true, Rivera is not as pro-defense as it might appear at first.

               The last of the unpublished Court of Appeals cases (and the most important, in my opinion) is Commonwealth v. Yen.[20]  An officer stopped Yen for running a red light.  He detected the odor of alcohol, so he conducted a field sobriety check of Yen, which Yen passed.  The officer told Yen that the DUI evaluation was over.  The officer could not recall if he told Yen that he was free to go.  He then asked Yen for consent to search the car.  The issue was whether Yen was seized at that point.

               The court concluded that the two critical cases were Harris and Dickerson.  It saw many similarities between the two cases.  The primary difference, according the court, was that in Dickerson, the officer had told him he was free to go, but in Harris the officer did not say this.  Nevertheless, the court held that the seizure of Yen ended when the officer completed the field sobriety tests and told Yen “that the evaluation for DUI was over.”  The language used by the court here is critical.  “To hold otherwise would require an officer to inform a citizen explicitly and expressly that, not only had the initial investigation come to an end, but that the citizen was free to go.  Although such a bright line rule would be far easier to apply and may better reflect how a citizen might normally interact with a police officer in these situations, such a resolution is foreclosed by the United States Supreme Court’s decision in Robinette, which explicitly and expressly rejected just such an approach.”

               The allusion to Robinette is significant and merits discussion.  In Ohio v. Robinette,[21] Robinette was stopped for speeding.  The officer gave Robinette a verbal warning, returned his driver’s license, and asked for (and received) consent to search his car.  The U.S. Supreme Court held that a failure to inform a driver at the conclusion of a traffic stop that he is free to go does not render a subsequent consent to search involuntary.

               The court in Yen appears to be saying that an encounter between the police and a person stopped may be consensual (and not a continuation of the detention precipitated by the traffic stop) without the officer informing the person that they are free to go.  Many people read the Robinette decision as saying the same thing.  Indeed, the Court said in Robinette explicitly said it was deciding the detention issue.  “We believe the issue as to the continuing legality of the detention is a ‘predicate to an intelligent resolution’ of the question presented [by this case], and therefore ‘fairly included therein….’ The parties have briefed this issue, and we proceed to decide it.”

               As indicated in my 2015 Bulletin[22] article, however, the Court did not actually decide that issue, in spite of the fact that it said it was.  Instead, the Court clearly shifted its focus to whether the consent to search was voluntary (and not to whether the consent was the product of an unconstitutional continuing detention of Robinette).  

               This observation has been made by others.  For example, George Dery has indicated that “[d]espite such grand declarations, the Court never did address the issue of ‘the continuing legality’ of [the officer’s] detention of Robinette while seeking consent and performing his search.”[23]

               Perhaps more significantly, the same observation appears in Wayne Lafave’s treatise Search and Seizure, which is unquestionably the leading academic authority on the subject.[24]  LaFave contends that the Supreme Court was “snookered by the state of Ohio” into avoiding the issue of when a detention becomes a consensual exchange after a traffic stop.  As a result, the U.S. Supreme Court “managed to avoid entirely the important issue the state court had taken on: whether a traffic offender somehow becomes ‘unseized’ upon return of his license notwithstanding a continuation (albeit on a different subject) of police discussion with the stopped driver.”[25]

                Thus, a strong argument, at least, can be made that the court in Yen is incorrect in its assessment that Robinette forecloses a requirement that an officer inform a person who has been stopped that he is free to go in order for the encounter that follows to be considered consensual.


               Where do these cases leave a Virginia law enforcement officer who seeks consent to search following a traffic stop?  It is clear that Virginia cases permit this tactic, under certain circumstances.  Initially, it bears mentioning again that it is unlikely that the consent will be valid if it is requested prior to completion of the traffic stop.  The request for consent will likely be seen as either extending the traffic stop impermissibly under Rodriquez or possibly viewed as making the consent involuntary (because the person stopped will feel compelled to give consent in order to maximize the likelihood of a favorable resolution of the traffic offense).

               Therefore, the consent to search should come after the conclusion of the traffic stop.  The key is that the traffic stop must be concluded in such a fashion that a reasonable person under the circumstances would conclude that they are free to terminate the encounter and leave.  It is not necessary that the person stopped be informed specifically that he is free to go, although that would make the prosecution’s case on this point easier to prove.  Returning an operator’s license to the driver is probably necessary, and anything else that the officer can do (such as saying “I guess we’re done here” or perhaps shaking the driver’s hand) to make it clear to a reasonable person that the traffic stop is concluded will be helpful.

               Asking questions of the person stopped, as well as passengers in the vehicle, that are not related to traffic stop, such as criminal histories and the significance of tattoos, greatly increase the likelihood that a court will conclude that the traffic stop was impermissibly extended.  Calling for a K-9 officer raises a similar risk.  On the other hand, an officer may check on the registration of the vehicle stopped, run a criminal records check on the driver, and take other reasonable actions to insure the officer’s safety.

               Insuring officer safety may also permit asking for the identification of passengers in the vehicle and running a criminal records check on those persons as well.  The case law approving this procedure is large and consistent[26] and includes a decision from the 4th Circuit Court of Appeals.[27]  However, these cases were decided prior to Rodriquez.  The 1st Circuit Court of Appeals addressed this issue after Rodriquez was decided and also concluded that this procedure is not prohibited by Rodriquez.[28]  

               An argument can be made, of course, that delaying the resolution of the traffic case to run a records check of passengers, in addition to the driver, impermissibly extends the traffic stop.  However, the cases cited above approve of the passenger records checks as essential to officer safety, so it seems unlikely that these courts will reevaluate these cases in the aftermath of Rodriquez.

A Critique

               These cases that permit obtaining consent to search at the conclusion of a traffic stop have their critics.  The concern in some quarters is that some law enforcement officers are stopping vehicles for minor traffic offenses in the hope that they can obtain consent to search the vehicles.[29]  The lack of clarity as to when a traffic stop has ended and a consensual exchange has begun arguably creates a feeling among much of the public that they have little choice but to remain with an officer and consent to a search when a traffic stop has concluded.

               The Ohio Supreme Court articulated this concern well in the Robinette case:[30]  “Most people believe that they are validly in a police officer’s custody as long as the officer continues to interrogate them.  The police officer retains the upper hand and the accouterments of authority.  That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him.”  This concern led that court to adopt a rule that consent to search after a traffic stop would be fruit of an unconstitutional seizure of the person stopped (and therefore invalid) unless the officer clearly informed the person that he was free to go (or words to that effect).

               As indicated earlier, the Supreme Court’s resolution of Robinette does not preclude adoption of the Ohio Supreme Court’s rule, in spite of what the Virginia Court of Appeals said in the Yen case.  Adoption of a rule requiring officers to indicate that a person was free to leave would be one obvious way to address the concern that some law enforcement officers are abusing their discretion to make pretextual traffic stops.

               However, there is an even more radical approach that courts could take, and one that I advocate.  Under this approach, once the officer has completed a traffic stop, any further discussion between the officer and the person stopped would be an unconstitutional seizure, regardless of what the officer says to the person.  The rationale for this approach is that once the traffic stop has ended, there is no basis (as articulated in Rodriquez) for continuing to detain the person stopped.

               What’s more, most people would not perceive that their detention has ended even if the officer has informed them that they are free to go.  For example, when I ask students in my constitutional rights classes what they think would happen if they were told by an officer that they were free to go, but then drove off while the officer continued to talk to them, the most common response is that they think the officer would follow them and pull them over again.  This is the prevailing view even though it seems unlikely that many, if any, officers would actually behave this way.  The latter point is essentially irrelevant, though, because the key issue is what a reasonable person thinks the officer would do in this circumstance.

               Of course, the objection to this approach is that it deprives the police of an effective tool in their crime-fighting tool-bag.  No doubt this is true.  However, the primary task of the courts under the Fourth Amendment is to draw the line between where police power ends and individual privacy begins.  For me, at least, once a traffic stop is concluded, police power should yield to the right of people to be left alone by the government.


[1] Jack Call, “Rodriquez v. United States (United States Supreme Court): Terry Stops May Not Be Extended to Accommodate a Canine Sniff,” August 2015 (

[2] 135 S.Ct. 1609.

[3] 412 U.S. 218 (1973).

[4] 446 U.S. 544 (1980).

[5] 499 U.S. 621 (1991).

[6] In Florida v. Bostick, 501 U.S. 429 (1991), the Court refined its Mendenhall definition of show of authority to indicate that the question is whether the actions of the police would have caused a reasonable person to think they were “not free to decline the officers’ requests or otherwise terminate the encounter.”  In spite of this refinement of the Mendenhall definition of show of authority, it is common to see court opinions utilizing the Mendenhall “free to leave” language instead.

[7] 582 S.E.2d 195 (2003).

[8] 532 S.E.2d 25 (2000).

[9] 581 S.E.2d 206 (2003).

[10] Even though both Dickerson and Harris involved the issue of whether a traffic stop was extended improperly, the opinion in Dickerson does not mention the Harris decision, and the opinion in Harris does not mention the Dickerson opinion.

[11] 778 S.E.2d 122 (Va. Ct. App. 2015).

[12] 555 U.S. 323 (2009).

[13] 852 F.3d 377 (4th Circ., 2017).

[14] 884 F.3d 200 (4th Circ., 2018).

[15] The fog line is the solid white line painted at the edge of a road, to alert a driver that they are drifting too far to the right hand side of the road.

[16] 2016 Va. App. LEXIS 311 (Va. Ct. App., 2016).

[17] 2018 Va. App. LEXIS 237 (Va. Ct. App., 2018).

[18] 2016 Va. App. LEXIS 332 (Va. Ct. App., 2016).

[19] 2018 Va. App. LEXIS 19 (Va. Ct. App., 2018).

[20] 2018 Va. App. LEXIS 11 (Va. Ct. App., 2018).

[21] 519 U.S. 33 (1996).

[22] Supra, note 1.

[23] George Dery III, “Is Asking for Consent to Search Necessary to Effectuate the Purpose of a Traffic Stop?  The Court in Rodriquez v. United States Rejects ‘Mission’ Creep,” George Mason University Civil Rights Journal, Vol. 26, No. 3 (2016).  See also, George Dery III, “When Will This Traffic Stop End: The United States Supreme Court’s Dodge of Every Detained Motorist’s Central Concern – Ohio v. Robinette,” Florida State University Law Review, Vol. 25, p. 519 (1998).

[24] The Supreme Court confirms this by its frequent references to the treatise in its opinions.

[25] Wayne Lafave, Search and Seizure, Section 9.3(g) (West Publishing, 2019).

[26] See, for example, U.S. v. Purcell, 235 F.3d 1274 (11th Circ., 2001); U.S. v. Rodriquez-Hernandez, 353 F.3d 632 (8th Circ., 2003); U.S. v. Rice, 483 F.3d 1079 (10th Circ., 2007); U.S. v. Diaz-Castaneda, 494 F.3d 1146 (9th Circ., 2007).

[27] U.S. v Soriano-Jarquin, 492 F.3d 495 (4th Circ., 2007).

[28] U.S. v. Clark, 879 F.3d 1 (1st Circ., 2018).  Unfortunately, this case is not as carefully reasoned as one would like.  Its reference to Rodriquez is very brief, and the opinion seems cite with approval the Johnson language about not doing anything to “measurably extend the duration of the stop,” language that, as we have seen, Virginia courts view Rodriquez as repudiating.

[29] The U.S. Supreme Court has unequivocally approved of pretext stops and arrests.  The Court has indicated that it will not examine the motives of the officer making a seizure of someone so long as there was a constitutional basis for the seizure.  Whren v. U.S., 517 U.S. 806 (1996).

[30] The Ohio Supreme Court ruled in favor of Robinette.