We’ve seen it a million times (or so it seems). The Police spot a car whose passengers they suspect may be carrying drugs or guns. The Police want to stop and search it. But they lack reasonable suspicion or probable cause to believe that the passengers are engaged in any specific criminal activity. So, instead, the Police will first stop the car for a purported traffic violation, then, following the stop, try to come up with a valid reason to search it.
In a typical pre-textual traffic stop, the Police will first question the driver and passengers, and run their criminal backgrounds. After several minutes – and if no incriminating evidence jumps out at them – the Police then hand the driver a ticket or warning, and tell him he’s free to go. But not really. Because, seconds after informing the driver he may leave, the Police re-engage him; ask him if there’s any drugs or guns in the car; and, eventually, try to procure his consent to a car search.
Until recently, the Police and prosecuting authorities were generally successful in upholding these tactics on the basis that the driver ‘voluntarily’ consented to the search. That should end with the Superior Court’s important decision in Commonwealth v. TAM THANH NGYUEN, 2015 WL 1883050, -- A.3d --, (April 27, 2015).
In NGYUEN, a Pennsylvania State Police Trooper stopped a car for a traffic violation. The Trooper accomplished the purpose of the traffic stop, in that he issued the driver a warning, and informed him that he was free to leave. Thereafter, the driver – who had been asked to exit his car prior to receiving the warning – turned around, walked away from the Trooper, and headed back toward his vehicle. However, before the driver made it back into his car, the Trooper re-initiated contact, and interrogated him. The Trooper eventually also requested, and obtained, consent to search. Following the consent, the Police found drugs, and the front seat passenger was charged with misdemeanor and felony drug possession. Before trial, the defendant moved to suppress the evidence, but the trial court denied the Motion. The defendant appealed, and the Superior Court reversed.
Notably, the Court found that, following the resolution of the reason for the initial traffic stop, the driver was the subject of a second seizure. Because that seizure was unsupported by reasonable suspicion, the seizure was improper. Because the driver was unlawfully seized when he gave consent, the consent was invalid.
In short, NGYUEN is a well-reasoned opinion that is likely to be relevant authority in many suppression hearings to come.