45 A3D 670 - Murray v. State

RIDGELY, Justice,

¶1dissenting:

¶2The majority holds that the contraband must be suppressed based on the officers’ treatment of Murray, a passenger. The majority sidesteps the fact that the officers’ patdown and questioning of Murray did not result in the discovery of the evidence Murray sought to suppress. Rather, Owens, the driver, provided valid consent to search a bag she claimed as hers during a lawful detention for a speeding *679violation. Owens’ consent satisfies the requirements of the Fourth Amendment and Department of Correction Probation and Parole Procedure 7.19, as does Murray’s later, spontaneous admission that the bag was his and that it had drugs inside it. I would affirm the denial of Murray’s motion to suppress.

¶3Facts and Procedural History

¶4Detective Smith was on patrol in downtown Wilmington when he observed a Chrysler travel eight blocks at approximately forty-five or fifty miles per hour in a twenty-five mile-per-hour zone. Smith called for assisting units to respond because his vehicle was not equipped with emergency lights. Smith testified that, during that call, he reported a car leaving 30th Street and Jefferson Street at a high rate of speed. At the time, Officer Collins was driving with Wilmington Police Officer Hazzard, also as part of Operation Safe Streets. Collins testified that he and Haz-zard received a call from Smith reporting a vehicle leaving a possible drug activity area at a high rate of speed. Hazzard testified that Smith reported only a speeding violation. Collins and Hazzard caught up to the vehicle on Interstate 95 and pulled it over. The car had been traveling at approximately seventy miles per hour in a fifty-five mile-per-hour zone.

¶5Hazzard approached the Chrysler on the driver’s side and Collins approached on the passenger’s side. Murray was in the passenger’s seat, Kenyattia Graham was in the back seat, and Owens was in the driver’s seat. Collins asked everyone in the car for identification, which they provided. Collins then returned to the police vehicle to conduct a criminal history check on DELJIS, which disclosed that Murray was actively on Level II probation and that a capias was out on Graham. Collins estimated that only five to six minutes elapsed between the time he received the identification and the time he completed the background check.

¶6Collins returned to Owens’ car, and asked Murray to step out. Hazzard testified that Graham was also asked to step out of the vehicle. Collins then conducted a patdown of Murray, which did not produce any contraband or weapons. Collins also observed a bag that had been between Murray’s legs in the passenger seat. Collins asked Murray if the bookbag was his. Murray denied that it was. Collins then asked Owens if it was her bookbag. She said that it was. Collins testified to the following exchange with Owens:

Q. After she told you it was hers, what did you do?

A. I asked her if she wouldn’t mind if I took a look inside since it was in front of Mr. Murray’s legs in the car.

Q. And what did she say?

A. She said I could.

Q. Did you go to do that?

A. Yes.

Q. Did anything happen while you were going to open that book bag and take a look inside of it?

A. As I was attempting to grab it to check, Mr. Murray, who was standing outside the car, said: ‘Hold on. It’s mine. I have drugs inside.’51

¶7After Murray’s interjection, Collins searched the bag and found cocaine and heroin in it. Collins then called his supervisor and obtained approval to arrest Murray and perform an administrative search of Murray’s residence.

¶8Murray moved to suppress- the contraband found during the search. Viewing the testimony in the light most favorable to the State, the Superior Court denied the *680motion. The Superior Court concluded that the traffic stop was not complete at the time that Collins requested Owens’ consent to search, explaining that “[t]his is not a situation where at the end of the road I’ve given you your license and registration and insurance back, everything is fíne, and then I try to continue on the investigation in some manner.”52 The Superior Court then concluded that Owens provided valid consent to search. Thus, the search was proper in light of the driver’s consent, and also Murray’s admission.

¶9Analysis

¶10The majority concludes that the officers finished the traffic stop, and then continued to detain the car to investigate Murray and ask questions about the bag without reasonable suspicion of criminal activity. This continued detention, the majority holds, was unlawful and provides a basis for suppressing the contraband.

¶11Owens’ consent to search, not the pat-down and questioning of Murray, led to the discovery of contraband in this case. The record and the Superior Court’s findings, viewed in the light most favorable to the State, indicate that the traffic stop was not complete at the time that Owens provided consent. The record further supports that Owens’ consent was voluntary, and was not the product of the patdown and questioning of Murray. Because Owens provided a valid consent to search during the scope of a lawful traffic stop, the contraband was admissible at Murray’s trial.

¶12We held in Caldwell v. State that a traffic stop must be justified from the outset by a reasonable suspicion of criminal activity and that the investigation must be reasonably related in scope to the stop’s initial justification to comport with the Fourth Amendment.53 We further held that a traffic stop may be extended beyond the scope of its initial justification if “the driver voluntarily consents to further questioning or the officer uncovers facts that independently warrant additional investigation.” 54 After we decided Caldwell, however, the U.S. Supreme Court issued a series of opinions that provide further guidance on when an officer may pursue inquiries beyond the traffic stop’s initial purpose. In Muehler v. Mena, the Court held that officers can ask a lawfully detained person for consent to search — even if the officers have no basis for suspecting that person of criminal activity.55 In Arizona v. Johnson, the Court applied Muehler in the context of a traffic stop.56 There, the Court held: “An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquines do not measurably extend the duration of the stop.”57 Thus, under Johnson, questions unrelated to the initial justification for the stop do not per se require either reasonable articu-lable suspicion or consent to further questioning.58

¶13 *681In this case, it is undisputed that the officers had a lawful justification for the initial traffic stop of Owens’ vehicle, because they witnessed Owens commit a speeding violation. Collins’ questions about who owned the bag and his request for consent to search did not “measurably extend” the stop under Johnson so as to require independent reasonable suspicion or a voluntary consent to questioning. Collins asked one question each to Murray and Owens — whether he or she owned the bag — and then requested consent to search from Owens. Collins testified that it took five to six minutes to check their identification, and the record provides no basis to conclude that the patdown of Murray and the inquiries about the bag measurably extended the length of the stop beyond this time. Moreover, the Superior Court found that the stop was not complete at the time of the questioning.59 Owens was lawfully detained as part of the traffic stop when Collins asked for her consent.

¶14In response to Collins’ questions, Owens identified the bookbag as hers and consented to its search. The voluntariness of a party’s consent is a question of fact that is determined by an evaluation of the totality of the circumstances.60 Although relevant to the analysis, an officer’s failure to advise a lawfully-seized person that she is “free to go” does not, of itself, preclude the officer from obtaining a voluntary consent to search.61 Generally, consent obtained during a lawful detention with “no signs of coercion or duress” will be deemed voluntary.62 Here, the Superior Court credited Collins’ testimony as to his exchange with Owens, the driver, and concluded that Owens’ consent to search was voluntary. The Superior Court determined that Owens’ consent was valid after considering the totality of the circumstances.

¶15The majority states that “the question of whether Owens’ consent was voluntary is irrelevant, because the record clearly indicates Collins questioned her about the bag *682only after he illegally detained Murray, patted him down, and questioned him.” But, the mere fact that the officers began their inquiry with Murray does not, standing alone, render involuntary — or irrelevant — the consent Owens gave to a search of a bag she said was hers.

¶16Under the fruit of the poisonous tree doctrine, consent to search may be invalid if it follows an unlawful seizure of the person giving the consent.63 For the doctrine to apply, however, there must first be some causal connection between the unlawful search or seizure and the consent to search.64 Where some causal connection exists, the attenuation analysis set forth by the U.S. Supreme Court in Brown v. Illinois may still render the consent valid.65 The U.S. Supreme Court has also made clear that “attenuation analysis is only appropriate where, as a threshold matter, courts determine that the challenged evidence is in some sense the product of illegal governmental activity.”66

¶17Here, it is not necessary to reach the attenuation analysis because there is no prior illegality relating to Owens. She was neither searched nor unlawfully detained prior to the request for consent. Collins’ questioning of Owens about the bag was permissible, even though it was unrelated to the purpose of the traffic stop, under Johnson. Even if we were to assume that the patdown and questioning of Murray was unreasonable, the record supports the Superior Court’s conclusion that Owens consented voluntarily to the search of the bag, in the course of a lawful traffic stop for speeding.

¶18There is another reason the officer could proceed with the search. Before Collins opened the bag, which Owens said was hers, Murray interjected that it was his bag and contained drugs. Murray’s admission — which was not in response to any question asked of him — provided Collins with probable cause to search the bag.67 At this point there were conflicting claims of ownership, which the officer was not required to resolve. Whether the search was based upon Owens’ consent or Murray’s admission, the search was reasonable and did not violate Murray’s rights under the Fourth Amendment.

¶19The majority also relies on Department of Corrections Probation and Parole Procedure 7.19 as an independent basis for reversing the decision of the Superior Court. Under Procedure 7.19, probation officers may not detain an individual abroad “unless there are reasonable grounds to suspect that the person is committing, has committed or is about to commit a crime.” A traffic stop results in a seizure of the passengers as well as the *683driver,68 and that initial detention was not unlawful here because the vehicle was stopped for a speeding violation. Owens’ consent to search and Murray’s spontaneous admission supplied the probable cause necessary to search the bag. Procedure 7.19 does not provide greater protections than the Fourth Amendment, and does not provide an independent basis for reversal in this case.

¶20The Superior Court did not abuse its discretion in denying Murray’s motion to suppress. Because the majority concludes otherwise, I respectfully dissent.

¶21. Suppression Hearing Tr. at 41 (Del. Super. Jan. 21, 2011).

¶22. Id. at 87.

¶23. 780 A.2d 1037, 1045-46 (Del.2001).

¶24. See id. at 1047-48.

¶25. Muehler v. Mena, 544 U.S. 93, 100-01, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005).

¶26. Arizona v. Johnson, 555 U.S. 323, 333-34, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009).

¶27. Id. at 333, 129 S.Ct. 781 (emphasis added) (citing Mena, 544 U.S. at 100-01, 125 S.Ct. 1465).

¶28. Several federal court decisions after Muehlerand Johnsonalso instruct that inquiries unrelated to the traffic stop’s initial purpose are not per se unreasonable where the temporal extension of the stop is de minimis. See, e.g., United States v. Harrison, 606 F.3d 42, 45 (2d Cir.2010) (per curiam) (holding that ques-*681honing of driver and passengers about their travel plans did not give rise to unlawful detention where stop was initiated for lawful purpose and lasted mere five to six minutes); United States v. Taylor, 596 F.3d 373, 376 (7th Cir.2010) (holding that officers' request for consent to search vehicle during stop for seat-belt violation did not violate Fourth Amendment where there was no evidence that stop was unreasonably prolonged), cert. denied, — U.S. -, 130 S.Ct. 3485, 177 L.Ed.2d 1076 (2010); see also United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir.2007) (holding that, after Muehler, "[t]he correct Fourth Amendment inquiry (assuming the detention is legitimate) is whether an officer’s traffic stop questions ‘extended the time’ that a driver was detained, regardless of the questions’ content”). These courts have rejected the kind of bright-line, no-prolongation rule suggested by the majority opinion. U.S. v. Everett, 601 F.3d 484, 491 (6th Cir.2010) ("[T]he overwhelming weight of authority militates against a bright-line ‘no prolongation' rule.”). The majority also suggests that there is some meaningful distinction between the term “measurably” and "significantly” or "substantially” under Johnson. But, as the Sixth Circuit noted in an application of Johnson, another definition of the word "measurable” is "significant.” Id.(citing Webster's Third New International Dictionary Unabridged (1981) at 1399).

¶29. Suppression Hearing Tr. at 87 (Del.Super. Jan. 21, 2011) ("This is not a situation where at the end of the road I’ve given you your license and registration and insurance back, everything is fine, and then I try to continue on the investigation in some manner.”)

¶30. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Velasquez, 885 F.2d 1076, 1081-82 (3rd Cir.1989).

¶31. See Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).

¶32. See United States v. Mendez, 118 F.3d 1426, 1432 (10th Cir.1997); Bustamonte, 412 U.S. at 228, 93 S.Ct. 2041.

¶33. See Florida v. Royer, 460 U.S. 491, 507-08, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Green, 111 F.3d 515, 521 (7th Cir.1997).

¶34. See Wong Sun v. U.S., 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Lopez-Vazquez v. State, 956 A.2d 1280, 1291-93 (Del.2008).

¶35. Lopez-Vazquez, 956 A.2d at 1293 (citing Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)).

¶36. New York v. Harris, 495 U.S. 14, 19, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990). See also United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 1251, 63 L.Ed.2d 537 (1980).

¶37.State v. Maxwell, 624 A.2d 926, 930 (Del.1993) (stating that probable cause requires only facts which suggest, when viewed under totality of the circumstances, "that there is a fair probability that the defendant has committed a crime”). Moreover, a probation officer only needs "reasonable suspicion” of illegal conduct to conduct a warrantless search of a known probationer. See Jacklin v. State, 2011 WL 809684, at *2, 16 A.3d 938 (Del. Mar. 8, 2011) (TABLE).

¶38. See Brendlin v. California, 551 U.S. 249, 256-58, 127 S.Ct. 2400, 168 L.Ed.2d 132 (U.S.2007); Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (holding that, during lawful traffic stop, officer may order passenger to exit car without reasonable suspicion of safety risk).