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The court reviewed the Superior Court's denial of a motion to suppress stemming from a traffic stop. Because the officer lacked reasonable suspicion, the court reversed the trial judge's denial of the motion to suppress drugs discovered in defendant's bag. Defendant's continued detention constituted an impermissible seizure, and the questioning itself violated even the limited rights possessed by a probationer. Accordingly, the court reversed the judgment.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
No. 240, 2011
Court Below: Superior Court
of the State of Delaware
in and for New Castle County
Cr. ID No. 1010000692
Submitted: April 17, 2012
Decided: May 14, 2012
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS, and
RIDGELY, Justices constituting the Court en Banc.
Upon appeal from the Superior Court. REVERSED.
Nicole M. Walker, Office of the Public Defender, Wilmington, Delaware for
Morgan T. Zurn, Department of Justice, Wilmington, Delaware for appellee.
STEELE, Chief Justice, for the majority:
Three officers completed a traffic stop along with the ancillary, permissible
inquiries. Then, a probation officer continued to question one of the car’s
passengers, a probationer, even though the officer testified he had no reasonable
suspicion of criminal activity. An officer who pulls a car over for speeding does
not thereby gain free rein to ask as many questions, for as long a time, as he might
wish. Further investigation requires further justification. Because the officer
lacked reasonable suspicion, we reverse the trial judge’s denial of a motion to
suppress the drugs discovered in Murray’s bag. Murray’s continued detention
constituted an impermissible seizure, and the questioning itself violated even the
limited rights possessed by a probationer.
Detective Samuel Smith, driving an unmarked car, approached the
intersection of 30th Street and Jefferson Street. Smith saw two men who were
talking turn their heads quickly toward his car, they “became nervous,” and one of
them walked away and the other climbed into a car. Although Smith later testified
that people in the neighborhood commonly recognized his car and called out to one
another to announce the presence of a police officer, he noticed no one so call out
on that day. Smith did not see any hand-to-hand transaction, nor did he see the
person who entered the car carry anything. In short, Smith saw a person look at
him and then get in a car. Smith rounded the block, and testified that the car had
sped off. Because Smith’s car lacked emergency lights, he called on the radio for
On I-95, a car driven by Wilmington Police Officer Matthew Hazzard, and
also containing Probation Officer Daniel Collins, located a car resembling the one
described on the radio. After following the car to verify that it was speeding,
Hazzard pulled over the car. Smith soon arrived on the scene.
Smith approached the driver and obtained the identity of the driver,
Jacqueline Owens, and the backseat passenger, Kenyattia Graham. Probation
Officer Collins approached the passenger’s side and obtained Glen Murray’s
identification. While testifying, Smith admitted the three were, by that time,
focused on investigating drug activity:
Q. And at that point when you compelled them to give information,
you were investigating what at that time?
A. Drug-related activity, what I believed to be drug-related activity.
Q. You were investigating drug-related activity based solely on the
fact they were in an area you knew to be a high-crime area,
Q. Despite the fact you had not seen any drug activity, correct?
Q. You are yet still investigating drug activity?
Violation of Probation Tr. at 22 (Del. Super. Nov. 10, 2010).
This purpose does not surprise; all three officers participated in Operation Safe
Streets. Collins ran the three names through DELJIS, and learned that Owens
owned the car, Murray was on Level II probation, and the backseat passenger,
Graham, had an outstanding capias. After the DELJIS search, the officers gave
Owens a verbal reprimand instead of a ticket. Although the officers knew Graham
had an outstanding capias, but they did not ask him to step out, pat him down, or
arrest him. Instead, in keeping with the motivation for the stop, Collins continued
looking for drugs.
Collins returned to Owens’ car, and “[d]ue to the fact Mr. Murray was on
Level II probation, [Collins] asked him to step out of the car so [he] could perform
a pat down” to see if he had anything illegal.2 Collins testified: “[Murray] was on
probation. We were doing a check, basically, to see if there is anything illegal,
officer safety. He was leaving a drug area. He is on probation for drugs.”3 But
Collins admitted he had no reason to think Murray was dangerous.4 Collins did not
find anything during the pat down, and he did not restrain Murray or put him in
Suppression Hearing Tr. at 39 (Del. Super. Jan. 21, 2011).
Id. at 38.
Q. For officer safety would mean that he is likely to possess, maybe, a weapon or
something. So you had no idea that there was any issue of officer safety when
you pulled him out, would you agree with me?
Prob. Tr. at 38.
handcuffs. Collins then asked Murray if a bag on the front floor of the car, on
Murray’s side, belonged to him, even though Collins admitted he had no reason to
believe the car contained anything illegal:
Q. Anything in that pat-down that led you to believe that there may be
drugs in the car?
Q. Anything you observed from the moment you saw them to the time
in which you did the pat-down that led you to believe that there
was any drug activity?
Q. And after the pat-down, you still had no reason to believe there
was any drug activity?
Q. So you decided, “I’m going to continue searching?”
Q. Searching for what?
A. Anything illegal.
Q. When you asked about the bag, did you have any reason to believe
that drugs would be in the bag?
Q. And when you asked Ms. Owens for permission to search the bag,
did you have any reason to believe that drugs would be in the bag?
Q. Did you have any reason to believe that there would be illegal
activity in the car when you asked to search?
A. No. At the time, no.5
STANDARD OF REVIEW
We review the Superior Court’s denial of a motion to suppress for abuse of
discretion, but review questions of law de novo.6
Suppr. Tr. at 45-47.
After police officers finish a traffic stop, they cannot continue to detain a car
for the purpose of asking questions without reasonable suspicion of criminal
The permissible duration of a traffic stop depends on the reason the police
officer pulls the car over. “The duration and execution of a traffic stop is
necessarily limited by the initial purpose of the stop.”7 This rule grows out of the
United States Supreme Court’s explanation of a broader Fourth Amendment
principle: “An investigatory detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop.”8 As this Court said in Caldwell,
“[A]ny investigation of the vehicle or its occupants beyond that required to
complete the purpose of the traffic stop constitutes a separate seizure that must be
supported by independent facts sufficient to justify the additional intrusion.”9
Courts conduct a full inquiry into the facts to determine whether the officer
conducted his investigation reasonably:
Loper v. State, 8 A.3d 1169, 1172 (Del. 2010) (citing Sierra v. State, 958 A.2d 825, 828 (Del.
2008); Woody v. State, 765 A.2d 1257, 1261 (Del. 2001)).
Caldwell v. State, 780 A.2d 1037, 1047 (Del. 2001).
Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325 (1983).
Caldwell, 780 A.2d at 1047 (collecting cases from Maryland and Colorado supporting this
Even where the traffic stop is not formally terminated by the issuance
of a citation or warning, “the legitimating raison d’etre [of the stop
may] evaporate if its pursuit is unreasonably attenuated or allowed to
lapse into a state of suspended animation.” Whether a given detention
is “unreasonably attenuated” necessarily involves a fact-intensive
inquiry in each case.10
In this case, the police pulled a car over on the basis that it was speeding. As
one of the officers testified, the purpose of the stop was to investigate drug activity,
but under the Fourth Amendment of the United States Constitution, the police may
of course pull over a vehicle for breaking the law, even if the officers harbor a
different subjective motivation.11 The officer’s power to detain the car evaporated
after the officers ended the investigation that provided the objective justification
for the stop. At that time, the officers had no authority to continue detaining the
car, and, admittedly, no reason to suspect that Murray possessed contraband.
Not only did none of the officers have reasonable suspicion that Murray had
drugs, but they also lacked reasonable suspicion that any person in the car had
drugs. We have held a person’s decision to leave an area upon sighting police is
not, in itself, suspicious.12 In addition, our precedent distinguishes between
graduated levels of flight evidence. A person’s unprovoked flight from uniformed
Id. At 1047.
See Whren v. U.S., 517 U.S. 806, 813, 116 S.Ct. 1769, 1774 (1996) (“We think these cases
foreclose any argument that the constitutional reasonableness of traffic stops depends on the
actual motivations of the individual officers involved.”).
See Cummings v. State, 765 A.2d 945, 949 (Del. 2001).
officers may, together with other factors, give police a reasonable suspicion of
criminal activity.13 But ambiguous furtive gestures, such as the claim that two men
appeared nervous, do not.14 Ambiguous furtive gestures include “ducking back and
forth, [while] looking back at [an officer in an unmarked car].”15
This case, then, involves baseless police investigation after the conclusion of
a traffic stop. The dissent nevertheless defends this continuing investigation,
describing it as a de minimis intrusion. The first problem with this conception is
that the relevant United States Supreme Court precedent focuses on whether police
extended the traffic stop’s duration “measurably,” not on whether police extend the
stop “significantly” or “substantially.” In Arizona v. Johnson, the Court said that
“[a]n officer’s inquiries into matters unrelated to the justification for the traffic
stop do not convert the encounter into something other than a lawful seizure, so
long as those inquiries do not measurably extend the duration of a traffic stop.”16
In Johnson, the Court permitted an officer who suspected criminal activity on the
strength of gang clothing, tattoos, and the presence of a police scanner radio to
perform a protective patdown at the start of a traffic stop. That is, the ‘unrelated
matters,’ in Johnson, were not matters that the officer dealt with after the traffic
See Woody v. State, 765 A.2d 1257, 1262-66 (Del. 2001).
Id. at 1215, 1218.
Arizona v. Johnson, 555 U.S. 323, 333-34, 129 S.Ct. 781, 788 (2009).
stop, but measures taken for self-protection at the very start of the traffic stop.
None of the officers in this case spotted items in the car that provided a reasonable
basis to think the car’s occupants posed a threat, nor did they conduct protective
patdowns at the start of the encounter.
Even if Johnson established a broadly applicable test permitting the police to
investigate as they wish in every traffic stop so long as they do not “measurably
extend” the stop, police actions here fail that test. For something to be measurable,
it need not be large; the Court could have used the terms ‘significantly’ or
‘substantially’ if they intended to proscribe only an extension of a comparatively
large period of time. But the United States Supreme Court attaches importance to
the question of whether the additional investigation lengthened the stop at all. In
Muehler v. Mena, a case relied on by Johnson, the Court took pains to point out
that the officers did not need reasonable suspicion to continue questioning
precisely because “the Court of Appeals did not hold that the detention was
prolonged by the questioning.”17
This case resembles a case decided by the Ohio Supreme Court, State v.
In Robinette I, a drug interdiction officer stopped Robinette for
speeding, checked his license, asked him to step out of his car, turned on the
Muehler v. Mena, 544 U.S. 93, 101, 125 S.Ct. 1465, 1471 (2005).
State v. Robinette, 653 N.E.2d 695 (Ohio 1995).
cruiser’s video camera, and then gave him a verbal warning.19 The officer returned
Robinette’s license and told him he was free to go.20 Robinette “felt” he was free to
go, but the officer asked him if he had contraband in the car.21 Specifically, the
officer said: “One question before you get gone: are you carrying any illegal
contraband in your car? Any weapons of any kind, drugs, anything like that?”22
Robinette denied having anything illegal, but the officer asked to search his car.23
Robinette nodded his head in consent to the search because he did not believe he
had liberty to withhold it.24 The officer found a small amount of marijuana and a
methamphetamine pill.25 The Ohio Supreme Court found Robinette’s consent
given involuntarily because the officer failed to inform Robinette he could leave
before the officer requested leave to search.26
See id. at 764.
Id. at 770.
Id. at 764, 770.
Id. (emphasis added).
Id. at 770; but see id. at 774 (Sweeney, J., dissenting).
Id. at 764 (majority opinion).
Id. at 697 (“We also use this case to establish a bright-line test, requiring police officers to
inform motorists that their legal detention has concluded before the police officer may engage in
any consensual interrogation.”).
After the Ohio Supreme Court first ruled on the case, the United States
Supreme Court considered it.27 Our nation’s Court with final word on the U.S.
Constitution remanded the case, stating that Ohio went too far by suggesting the
search could only be voluntary, after a traffic stop, if the police officer first told
Robinette he was free to go.
Instead, the Supreme Court stated that the
voluntariness of the search can only be determined by a factual inquiry into all of
the circumstances, and remanded the case for consideration based on that legal
On remand, the Ohio Supreme Court held the officer illegally seized
Robinette. The officer’s command to step out of the car was objectively justified
for officer safety in a routine traffic stop, but the stop’s justification ended when
the officer returned Robinette’s license.29 Ohio’s Supreme Court did not suggest
the officer violated Robinette’s rights by asking if Robinette had contraband.30 The
Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417 (1996) (Robinette II).
Id. at 40 (“The Fourth Amendment test for a valid consent to search is that the consent be
voluntary, and “[v]oluntariness is a question of fact to be determined from all the circumstances.
The Supreme Court of Ohio having held otherwise, its judgment is reversed, and the case is
remanded for further proceedings not inconsistent with this opinion”).
State v. Robinette, 685 N.E.2d 762, 767 (citing Pennsylvania v. Mimms, 434 U.S. 106, 111
(1977)) (Robinette III).
Id. at 767-68 (citing Florida v. Royer, 460 U.S. 491 (1983); Brown v. Texas, 443 U.S. 47
(1979)). In Florida v. Royer, the Court held that questioning a person on the street or in a public
place who was not in custody was not a “seizure” triggering Fourth Amendment protection. Id.
(discussing Royer). In Brown v. Texas, the Court held a sobriety checkpoint was not an
public policy of suppressing illegal drug traffic justified the minimal intrusion of
extending Robinette’s seizure.31 But, after asking Robinette whether he had
contraband, the officer did not gain articulable suspicion to justify further
extending Robinette’s seizure by asking to search his car.32 The Court summarized
the rule as follows:
When a police officer’s objective justification to continue detention of
a person stopped for a traffic violation for the purpose of searching the
person’s vehicle is not related to the purpose of the original stop, and
when that continued detention is not based on any articulable facts
giving rise to a suspicion of some illegal activity justifying an
extension of the detention, the continued detention to conduct a search
constitutes an illegal seizure.33
Because the stop’s justification and purpose ended when the officer returned
Robinette’s license, and the officer did not gain articulable suspicion while
extending the stop in the public interest, the Court held the officer illegally seized
Robinette when he asked for consent to search his car.34
Although the officer told Robinette he was “free to go,” and Robinette “felt
free to leave,” the officer prefaced the first question with “before you get gone,”
unreasonable seizure if the intrusion was minimal and the seizure served the public interest. Id.
Id. at 768. The Robinette III Court cited Royer for the proposition that suppressing illegal drug
traffic was a public interest. Id.
Id. at 768-69 (citing Terry v. Ohio, 392 U.S. 1, 21 (1968); Henry v. United States, 361 U.S. 98,
Id. at 763, 768.
Id. at 768.
which implied he was not free to leave.35 The officer had a superior position of
authority and could have arrested Robinette if he did not cooperate.36 In this
context, Robinette “just automatically said yes” to the search because he did not
believe he could refuse the officer.37 He “merely submitted to ‘a claim of lawful
authority’ rather than consenting as a voluntary act of free will.”38 Because
Robinette’s consent did not validate the illegal seizure, the search was illegal.39
In this case, Collins began an investigation of Murray because Murray was
on probation that was separate and apart from the speeding stop.
statement that the bag contained drugs does not preclude a finding that searching
him and the car violated Murray’s Fourth Amendment rights. When a person is
illegally detained before he purports to give consent, his consent may not be
sufficient to cleanse the illegal detention’s taint.40 The fact that a different person
attempted to intervene does not change the analysis; in either case it is the officer’s
act of asking the question that violates the citizen’s rights.
Id. (quoting excerpts from a transcript).
Id. at 771.
Id. at 770-71 (quoting excerpts from a transcript).
Id. at 771 (citing Royer, 460 U.S. at 497, for the proposition that submission is not sufficient
Id. at 768-69, 771-72.
See Caldwell, 780 A.2d at 1052 n.40 (citing cases in which a person gave consent, but the
consent was insufficient to cleanse the illegal detention’s taint).
In this case, the record contains absolutely no evidence that Murray
consented to his detention, pat down, or questioning.41 In fact, it contains no
evidence that Collins asked for Murray’s consent to pull him out of the car. The
question of whether Owens’ consent was voluntary is irrelevant, because the
record clearly indicates Collins questioned her about the bag only after he illegally
detained Murray, patted him down, and questioned him. The Ohio Supreme Court
warned, in Robinette III:
The transition between detention and a consensual exchange can be so
seamless that the untrained eye may not notice that it has occurred.
The undetectability of that transition may be used by police officers to
coerce citizens into answering questions that they need not answer, or
to allow a search of a vehicle that they are not legally obligated to
In this case, however, the transition was blunt: Collins asked Murray to step out of
the car so Collins could pat him down. This case should be easier to decide than
Robinette. In Robinette, the officer told Robinette he was free to go before he
began questioning him, and Robinette admitted that he felt free to go.43 By
contrast, Collins ordered Murray to step out of the car and patted him down before
asking about the bag.
See Caldwell, 780 A.2d at 1047; see id. at 1052 (citing cases in which a person gave consent,
but the consent was insufficient to cleanse the illegal detention’s taint).
See Robinette III, 685 N.E.2d at 770-71 (internal quotation marks omitted).
See id. at 770.
A separate, independent argument justifies reversal.
Probation and Parole Procedure 7.19, and our precedent in Sierra v. State and
Culver v. State, probation officers must have a reasonable suspicion of illegal
activity to seize or search a probationer. Therefore, our law does not permit
suspicionless probationer searches. The officers here repeatedly admitted they had
no reason to suspect Murray was involved in illegal activity, admitted they did not
have an officer safety concern, and explicitly asserted they could conduct a
suspicionless probationer search. Therefore, when Collins asked Murray to step
out of the car, he violated Murray’s Fourth Amendment rights.
A probation officer must have a reasonable suspicion or reasonable grounds
to justify an administrative search of a residence or car.44 Nevertheless, this Court
considers probation officers to have acted reasonably so long as they substantially
comply with Delaware Department of Corrections regulations.45
See Pendleton v. State, 990 A.2d 417, 419-20 (Del. 2010) (affirming a conviction in the
context of a residential search); Sierra v. State, 958 A.2d 825, 828-29 (Del. 2008) (reversing a
conviction because a probation officer lacked reasonable suspicion to justify an administrative
search of a residence); Culver v. State, 956 A.2d 5, 10-15 (Del. 2008) (reversing; residential
search); Donald v. State, 903 A.2d 315, 318-19 (Del. 2006) (affirming; residential search); Fuller
v. State, 844 A.2d 290, 292 (Del. 2004) (per curiam) (affirming; car search).
Pendleton, 990 A.2d at 420; Fuller, 844 A.2d at 292-93.
The DOC regulation applicable to probation officers’ detentions and
searches is Probation and Parole Procedure 7.19.46 Under Procedure 7.19,
probation officers may detain any positively identified probationer to determine the
nature of his activity and whether he is complying with the conditions of probation.
A “detention” means temporarily depriving a person of his freedom to depart the
area based on reasonable suspicion.47 But they “may not detain any other
individual abroad unless there are reasonable grounds to suspect that the person is
committing, has committed or is about to commit a crime.”
Therefore, Delaware case law and administrative law do not permit
suspicionless probationer searches, even though probationers sign waivers as a
condition of probation.48 In Sierra v. State and Culver v. State, we invalidated
probation officers’ searches when, considering Procedure 7.19, the officers did not
have reasonable suspicion from informant tips.49 Unlike Culver, in which the
majority and dissent disputed whether independent grounds existed for reasonable
DEPARTMENT OF CORRECTION, BUREAU OF COMMUNITY CORRECTIONS, PROBATION AND
PAROLE, PROCEDURE 7.19, Arrests, Searches and Arrest-Search Checklist; see Culver, 956 A.2d
at 10-11 (listing specific procedures); accord Sierra, 958 A.2d at 828-29 (same). The
Department wrote Procedure 7.19 under the authority granted by 11 Del. C. § 4321.
See 11 Del. C. § 1902.
Sierra, 958 A.2d at 829.
See Sierra, 958 A.2d at 832; Culver, 956 A.2d at 15.
suspicion, as explained supra, the officers in this case did not have any grounds to
infer a reasonable suspicion against Murray for drug activity.50
The Superior Court’s judgment denying the motion to suppress is reversed.
Compare Culver, 956 A.2d at 9, 14-15, with id. at 17-19.
RIDGELY, Justice, dissenting:
The 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 violation. 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.
Facts and Procedural History
Detective 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 Hazzard 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.
Hazzard 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
Collins 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?
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
After 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.
Murray 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
motion. 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 fine, and then I try to continue on the
Suppression Hearing Tr. at 41 (Del. Super. Jan. 21, 2011).
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.
The 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.
Owens’ consent to search, not the patdown 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
We 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
Id. at 87.
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 inquiries 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 articulable suspicion or consent to further questioning.58
780 A.2d 1037, 1045–46 (Del. 2001).
See id. at 1047–48.
Muehler v. Mena, 544 U.S. 93, 100–01, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005).
Arizona v. Johnson, 555 U.S. 323, 333–34, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009).
Id. at 333 (emphasis added) (citing Mena, 544 U.S. at 100–01).
Several federal court decisions after Muehler and Johnson also instruct that inquiries unrelated
to the traffic stop’s initial purpose are not per se unreasonable where the temporal extension of
In 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
the stop is de minimis. See, e.g., United States v. Harrison, 606 F.3d 42, 45 (2d Cir. 2010) (per
curiam) (holding that questioning 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 seatbelt 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).
questioning.59 Owens was lawfully detained as part of the traffic stop when
Collins asked for her consent.
In 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 majority states that “the question of whether Owens’ consent was
voluntary is irrelevant, because the record clearly indicates Collins questioned her
about the bag only after he illegally detained Murray, patted him down, and
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.”)
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).
See Ohio v. Robinette, 519 U.S. 33, 39–40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996).
See United States v. Mendez, 118 F.3d 1426, 1432 (10th Cir. 1997); Bustamonte, 412 U.S. at
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.
Under 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
Here, 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
See Florida v. Royer, 460 U.S. 491, 507–08, 130 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality
opinion); United States v. Green, 111 F.3d 515, 521 (7th Cir. 1997).
See Wong Sun v. U.S., 371 U.S. 471, 487–88 (1963); Lopez-Vazquez v. State, 956 A.2d 1280,
1291–93 (Del. 2008).
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)).
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).
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.
There 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.
The 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
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)
a seizure of the passengers as well as the driver,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.
The Superior Court did not abuse its discretion in denying Murray’s motion
to suppress. Because the majority concludes otherwise, I respectfully dissent.
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).