State v. Berrios

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 3, 2007 Session

STATE OF TENNESSEE v. ERIC BERRIOS

Appeal by permission from the Court of Criminal Appeals
Criminal Court for Shelby County
No. 04–03042 Paula Skahan, Judge

No. W2005-01179-SC-R11-CD - Filed August 17, 2007

The defendant, Eric Berrios, was charged with one count of possession with intent to sell or deliver
more than three hundred grams of cocaine. After the trial court granted the defendant’s motion to
suppress the cocaine seized during the traffic stop, the State was granted an interlocutory appeal
pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure. The Court of Criminal Appeals
affirmed the suppression of the evidence. We granted the State’s application for permission to
appeal to determine whether the officer’s actions amounted to an unconstitutional seizure and, if so,
whether the defendant’s consent to search the vehicle was sufficiently attenuated from that illegal
act. Because the seizure violated constitutional safeguards and because the consent to search was
not sufficiently attenuated from the violation, we affirm the suppression of the evidence. The
judgment of the Court of Criminal Appeals is, therefore, affirmed.

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed

GARY R. WADE, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and
JANICE M. HOLDER and CORNELIA A. CLARK, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Mark
A. Fulks, Assistant Attorney General; William L. Gibbons, District Attorney General; and Valerie
Smith, Assistant District Attorney General, for the appellant, State of Tennessee.

William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellee, Eric Berrios.

OPINION

On February 25, 2004, Officer Kelly Nichols of the West Tennessee Drug Task Force
observed Eric Berrios (“the Defendant”) driving fifty-three miles per hour in a construction zone on
Interstate 40 in Shelby County. The posted speed limit for the area was forty-five miles per hour.
When Officer Nichols activated his emergency equipment, the Defendant stopped his vehicle on the
shoulder of the highway. The officer then approached the vehicle on the driver’s side, asked the
Defendant for his license and vehicle registration, and directed him out of the vehicle. After
glancing at the license and registration, Officer Nichols frisked the Defendant and led him to the
backseat of the patrol car. The Defendant was questioned and ultimately agreed to the officer’s
request for consent to search the vehicle. A large amount of cocaine was hidden in the fender area
of the vehicle.

Factual and Procedural Background

At the hearing on the motion to suppress, Officer Nichols, testifying for the State, stated that
he directed the Defendant outside of the vehicle for safety reasons. He explained that “police
officers working on highways happen to be more likely to be run over by vehicles than shot and
killed by a suspect.” Later in his direct testimony, he added that the cold and rainy weather was
another reason to place the Defendant in the patrol car. Officer Nichols performed a pat-down search
for weapons before putting the Defendant in the patrol car but found none. At the hearing, he
pointed out that it was his practice to frisk every person he placed in the back of his vehicle.

While inside the patrol car, the Defendant was asked a number of questions about his
automobile, his travel plans, and his business. Officer Nichols also telephoned the United States
Customs Service to verify the validity of the Defendant’s driver’s license and registration and to
determine whether the vehicle had recently crossed the border from Mexico. While awaiting the
results of his inquiry, the officer asked for and received consent to search the vehicle.

As he looked under the hood of the vehicle, Officer Nichols discovered that the bolts holding
the fender in place had been removed and replaced. After unsuccessfully attempting to remove the
fender, he called for Sergeant Mike McCord to assist in the search, explaining that Sergeant McCord
“had a narcotics detecting canine and also . . . had experience in searching vehicles.” The dog
alerted to the front fender area, and the two officers drilled into the fender, discovering more than
three hundred grams of cocaine hidden in the firewall of the fender.

During cross-examination, Officer Nichols conceded that the Defendant was cooperative
during the stop. He also acknowledged that he had seen nothing in the interior of the car that caused
him to fear for his safety or led him to suspect any criminal activity other than speeding. The officer
admitted that he did not believe that the Defendant was either armed or dangerous. Upon further
questioning, Officer Nichols explained that because the Defendant appeared nervous during the
initial encounter, his purpose in placing the Defendant in the back of the patrol car was to determine
whether the anxiety level of the Defendant would increase.

At the conclusion of the hearing, the trial court took the motion under advisement and later
issued a written memorandum and order granting the motion to suppress. The trial court concluded
that because the Defendant was driving in excess of the speed limit, the initial stop “was not
unreasonable” but also ruled that detaining the Defendant in the police vehicle and asking questions

-2-
“unrelated to speeding” or “officer safety” violated constitutional limits. Further findings by the trial
court as summarized by the Court of Criminal Appeals, were as follows:

[The officer] did not initiate the computer check on the [D]efendant’s license and
registration until approximately two minutes after placing the [D]efendant in the back
of the squad car and four minutes after initiating the traffic stop. After the call to
U.S. Customs, [the officer] continued for four minutes to ask questions unrelated to
the speeding offense.

[The officer’s] questions exceeded both the duration and subject matter of the stop.

Contrary to the state’s argument, the [D]efendant’s responses to the officer’s
questions were an insufficient basis for extending the detention.

The only possible indicator of criminal activity . . . was the [D]efendant’s
nervousness. Nervousness alone is seldom sufficient for finding reasonable
suspicion, and although it could suffice under certain circumstances, those
circumstances are not present in this case.

From numerous viewings of the video tape of the traffic stop, the court cannot
[ac]credit [the officer’s] testimony that the [D]efendant appeared nervous at the
beginning of the stop and that the nervousness escalated. Nothing about the
[D]efendant’s appearance on camera suggested that he was nervous enough to raise
a reasonable suspicion of criminal activity . . . .

Any nervousness that the [D]efendant did exhibit was likely a result of being locked
in the backseat of a police car while Nichols retained his driver’s license. The
[D]efendant not only did not feel free to leave, but he was physically unable to do so
....

In a supplemental order, the trial court also ruled that even though the Defendant voluntarily
consented to the vehicle search, the consent was not sufficiently attenuated from the unlawful
detention so as to allow the admission of the illegal drugs. The Court of Criminal Appeals affirmed
the order of suppression, concluding that the officer’s conduct, patting down the Defendant and
placing him in the back of the patrol car, amounted to an illegal “frisk and sit.” The intermediate
court also ruled that the consent to search was not sufficiently attenuated from the illegal conduct.

In this appeal, the State contends that both the trial court and the Court of Criminal Appeals
erred by suppressing the cocaine discovered in the vehicle. In the alternative, the State asserts that
the consent to search was voluntary and so unrelated to the unlawful seizure as to permit the
admission of the evidence.

-3-
 Standard of Review

The standard of review applicable to suppression issues is well established. When the trial
court makes findings of fact at the conclusion of a suppression hearing, the findings are binding upon
this Court unless the evidence in the record preponderates against them. State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). “Questions of credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the
trier of fact.” Id. “The party prevailing in the trial court is entitled to the strongest legitimate view
of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences
that may be drawn from that evidence.” Id. Our review of a trial court’s application of law to the
facts is de novo, with no presumption of correctness. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.
2001) (citing State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d
626, 629 (Tenn. 1997)). When the trial court’s findings of fact are based entirely on evidence that
does not involve issues of witness credibility, however, appellate courts are as capable as trial courts
of reviewing the evidence and drawing conclusions and the trial court’s findings of fact are subject
to de novo review. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).

Analysis

Both the state and federal constitutions offer protection from unreasonable searches and
seizures; the general rule is that a warrantless search or seizure is presumed unreasonable and any
evidence discovered subject to suppression. See U.S. Const. amend. IV (“The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated . . . .”); Tenn. Const. art. I, § 7 (“That the people shall be secure in their persons,
houses, papers and possessions, from unreasonable searches and seizures . . . .”). “[T]he most basic
constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior
approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only
to a few specifically established and well delineated exceptions.’” Coolidge v. New Hampshire, 403
U.S. 443, 454-55 (1971) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); see also State
v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997). This Court has recognized three categories of police
interventions with private citizens: a full scale arrest, which requires probable cause; a brief
investigatory detention, requiring reasonable suspicion of wrong-doing; and a brief police-citizen
encounter, requiring no objective justification. State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000).
“While arrests and investigatory stops are seizures implicating constitutional protections, consensual
encounters are not.” State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006). “[A] seizure does not
occur simply because a police officer approaches an individual and asks a few questions.” Florida
v. Bostick, 501 U.S. 429, 434 (1991). Exceptions to the warrant requirement include searches
incident to arrest, plain view, hot pursuit, exigent circumstances, and others, such as the consent to
search. See State v. Cox, 171 S.W.2d 174, 179 (Tenn. 2005). “The Fourth Amendment applies to
all seizures of the person, including seizures that involve only a brief detention short of traditional
arrest.” United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975) (citing Davis v. Mississippi, 394
U.S. 721 (1969); Terry v. Ohio, 392 U.S. 1, 16-19 (1968)). Reasonableness is the “touchstone of
the Fourth Amendment.” Florida v. Jimeno, 500 U.S. 248, 250 (1991) (citing Katz, 389 U.S. at

-4-
360); see also Skinner v. Ry. Labor Executives’ Assn., 489 U.S. 602, 619 (1989); State v.
Scarborough, 201 S.W.3d 607, 616 (Tenn. 2006). These constitutional protections are designed to
“‘safeguard the privacy and security of individuals against arbitrary invasions of government
officials.’” State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998) (quoting Camara v. Mun. Court, 367
U.S. 523, 528 (1967)).

This Court has previously held that our state constitution offers more protection than the
corresponding provisions of the Fourth Amendment. See, e.g., State v. Jacumin, 778 S.W.2d 430,
436 (Tenn. 1989); State v. Lakin, 588 S.W.2d 544, 549 (Tenn. 1979). As under the federal
constitution, evidence obtained as a result of a warrantless search or seizure “is subject to
suppression unless the State demonstrates that the search or seizure was conducted pursuant to one
of the narrowly defined exceptions to the warrant requirement.” Yeargan, 958 S.W.2d at 629. The
State bears the burden of proof when a search or seizure is conducted without a warrant. Id.

I. The Initial Stop

An automobile stop constitutes a “seizure” within the meaning of both the Fourth
Amendment to the United States Constitution, see Mich. Dep’t of State Police v. Sitz, 496 U.S. 444,
450 (1990); Delaware v. Prouse, 440 U.S. 648, 653 (1979), and article I, section 7 of the Tennessee
Constitution, see State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).1 As a general rule, if the police
have probable cause to believe a traffic violation has occurred, the stop is constitutionally reasonable.
Whren v. United States, 517 U.S. 806, 810 (1996). In this case, the State concedes that the
Defendant was seized when the officer initiated the traffic stop. Similarly, the Defendant concedes
that the officer had probable cause based upon his excessive speed to conduct the traffic stop.

Because the Defendant was driving eight miles per hour over the posted limit, Officer
Nichols had probable cause to initiate a traffic stop. In consequence, he was authorized pursuant to
Tennessee Code Annotated section 55-10-207 to issue a traffic citation. See Tenn. Code Ann. § 55-
10-207(a)(1) (2004) (“Whenever a person is arrested for a violation of any provision of . . . chapter
8 . . . of this title . . . , punishable as a misdemeanor, . . . the arresting officer shall issue a traffic
citation to such person in lieu of arrest, continued custody and the taking of the arrested person
before a magistrate.”). Although there is no federal constitutional prohibition against an arrest for
a minor traffic offense, see Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (holding that
the Fourth Amendment permits custodial arrest on the basis of probable cause that an individual has
committed even a minor traffic violation), our statute precluded the officer from doing so in this
case, see Tenn. Code Ann. § 55-10-207(a)(1) (2004). In State v. Walker, 12 S.W.3d 460 (Tenn.
2000), this Court concluded that Tennessee’s “cite and release” statute, Tennessee Code Annotated
section 40-7-118, created a “a presumptive right to be cited and released for the commission of a
misdemeanor.” Id. at 464. Full custodial arrest is permitted only when one of the statutory

1
“The correct spelling of the defendant’s name is ‘Pulley’; however, it is cited by West Publishing Company
as ‘Pully.’” Yeargan, 958 S.W.2d at 636 n.5 (Reid, J., concurring).

-5-
exceptions is met. Tennessee Code Annotated section 55-10-207 makes reference to the “cite and
release” statute and provides that the same exceptions apply. See Tenn. Code Ann. § 55-10-207(f)
(2004). None of the statutory exceptions, however, are present in this instance.

As indicated, the initial stop of the Defendant’s vehicle was constitutionally permissible. The
United States Supreme Court has held, however, that “[i]t is nevertheless clear that a seizure that is
lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably
infringes interests protected by the Constitution.” Illinois v. Caballes, 543 U.S. 405, 407 (2005)
(citing United States v. Jacobsen, 466 U.S. 109, 124 (1984)). Moreover, a well-recognized authority
on the Fourth Amendment has addressed the “routine traffic stop” as follows:

Given that police can easily come by a factual basis for a traffic stop, that
such stops are often motivated by drug-enforcement purposes, and that there exists
virtually no basis for questioning the initiation of such a stop because of its pretextual
or arbitrary nature, it is apparent that the permissible dimensions of a lawful traffic
stop are matters of some importance.

Wayne R. LaFave, The “Routine Traffic Stop” From Start to Finish: Too Much “Routine,” Not
Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1862 (2004).

II. Pat-down of the Defendant and Placement in the Patrol Car

After the Defendant gave the officer his driver’s license and registration, the officer asked
the Defendant to step out of his vehicle. The officer explained that he did so for his own safety, a
constitutionally justifiable purpose. See Pennsylvania v. Mimms, 434 U.S. 106, 109-11 (1977)
(holding that an officer may, as a matter of course, ask that a driver step out of the vehicle during a
traffic stop). As he complied with the request, the Defendant asked permission to remove his jacket
from the car. The officer responded by saying, “I’m going to let you have a seat back here.” He then
patted down the Defendant and placed him in the secured area of the patrol car. At that point, the
Defendant was no longer free to leave, a fact the officer acknowledged during the suppression
hearing. Further, the Defendant could not have opened the back door from the inside.

The officer, who did not ask for a computer check on the license and registration before
placing the Defendant in the back of the patrol car, provided a variety of explanations for placing the
Defendant there. Initially, he contended that he had done so for safety reasons. Later, he added,
“[P]lus it was also raining.” He ultimately admitted, however, that he used the detention as an
investigatory tool. He explained that he wanted to determine whether the Defendant’s anxiety level
increased when he was placed in the police vehicle.

The United States Supreme Court has observed that “[t]he permissibility of a particular law
enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment
interests against its promotion of legitimate governmental interests.” Prouse, 440 U.S. at 654. The
Court has also held that “an investigative detention must be temporary and last no longer than is
necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed

-6-
should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion
in a short period of time.” Florida v. Royer, 460 U.S. at 500. In State v. Cox, 171 S.W.3d 174
(Tenn. 2005), this Court adopted the rationale of the U.S. Supreme Court in Royer, making the
following observations:

The duration of [a traffic] stop, however, must be “temporary and last no longer than
necessary to effectuate the purpose of the stop.” “The proper inquiry is whether
during the detention the police diligently pursued a means of investigation that was
likely to confirm or dispel their suspicions quickly.” A traffic stop may be deemed
“unreasonable,” if the “‘time, manner or scope of the investigation exceeds the
proper parameters.’”

Id. at 179-80 (citations omitted).

The United States Supreme Court has ruled that an officer may order the occupants out of
the vehicle during a traffic stop:

Against this important interest [of officer safety] we are asked to weigh the
intrusion into the driver’s personal liberty occasioned not by the initial stop of the
vehicle, which was admittedly justified, but by the order to get out of the car. We
think this additional intrusion can only be described as de minimis. The driver is
being asked to expose to view very little more of his person than is already exposed.
The police have already lawfully decided that the driver shall be briefly detained; the
only question is whether he shall spend that period sitting in the driver’s seat of his
car or standing alongside it. Not only is the insistence of the police on the latter
choice not a “serious intrusion upon the sanctity of the person,” but it hardly rises to
the level of a “‘petty indignity.’” What is at most a mere inconvenience cannot
prevail when balanced against legitimate concerns for the officer’s safety.

Mimms, 434 U.S. at 111 (citation omitted). On the other hand, the placement of a driver into the
backseat of a patrol car cannot be described as “de minimus” or a “mere inconvenience.” A process
involving a frisk and placement into the back of a locked patrol car is more akin to a full-scale arrest
than the brief detention generally incident to an ordinary traffic stop. After a traffic violation, a
driver can generally expect “to spend a short period of time answering questions and waiting while
the officer checks his license and registration, that he may then be given a citation, but that in the end
he most likely will be allowed to continue on his way.” Berkemer v. McCarty, 468 U.S. 420, 437
(1984). “The government’s general interest in criminal investigation, without more, is generally
insufficient to outweigh the individual interest in ending the detention.” United States v. Holt, 264
F.3d 1215, 1221 (10th Cir. 2001).

Other jurisdictions considering the issue have permitted the “frisk and sit” for officer
convenience if placement in the patrol car is the least intrusive means of avoiding a dangerous

-7-
condition outside the vehicle. For example, in State v. Lozada, 748 N.E.2d 520 (Ohio 2001), the
Ohio Supreme Court held as follows:

[D]uring a routine traffic stop, it is reasonable for an officer to search the driver for
weapons before placing the driver in a patrol car, if placing the driver in the patrol
car during the investigation prevents officers or the driver from being subjected to a
dangerous condition and placing the driver in the patrol car is the least intrusive
means to avoid the dangerous condition.

748 N.E.2d at 526. In Wilson v. State, 745 N.E.2d 789 (Ind. 2001), the Indiana Supreme Court
observed that it could “envision various particularized circumstances (including, for example and
without limitation, inclement weather, the lack of available lighting for paperwork, the need to
access equipment with the detained motorist, etc.) that may make it reasonably necessary for police
to require a stopped motorist to enter a police vehicle,” but nevertheless concluded that “[a]n officer
is not using the least intrusive means to investigate a traffic stop if, without a particularized
justification making it reasonably necessary, he places a person into his patrol vehicle and thereby
subjects the person to a pat-down search.” Id. at 793. Similarly, the Minnesota Supreme Court has
ruled that “a reasonable basis must exist” for an officer to ask a driver to wait in the patrol car during
a routine traffic stop. See State v. Varnado, 582 N.W.2d 886, 891 n.4 (Minn. 1998).

As to the frisk, the United States Supreme Court has granted “narrowly drawn authority to
permit a reasonable search for weapons for the protection of the police officer, where he has reason
to believe that he is dealing with an armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime.” Terry, 392 U.S. at 27. The Court has ruled that
there is no justification for an exception to the warrant requirement for a search incident to a traffic
stop, observing that “[t]he threat to officer safety from issuing a traffic citation, however, is a good
deal less than in the case of a custodial arrest.” Knowles v. Iowa, 525 U.S. 113, 117 (1998). The
Court concluded that the interest of officer safety was sufficiently protected in a traffic stop setting
through the search power permitted under Terry. See id. at 117-18; see also LaFave, 102 Mich. L.
Rev. at 1869 (for a discussion of this doctrine). That is to say, an officer may conduct a pat-down
for weapons if he has reasonable suspicion that the driver may be armed. Knowles, 525 U.S. at 117-
18.

As stated, Officer Nichols had probable cause to stop the Defendant’s vehicle and issue a
citation for speeding. He did not, however, write a citation and admittedly intended from the outset
to ask for consent to search the vehicle. Without any suspicion that the Defendant was armed or
dangerous, the officer frisked the Defendant and placed him in the back of the patrol car before
checking the validity of his driver’s license or vehicle registration. Despite the State’s insistence that
the officer placed the Defendant in the patrol car to shield him from the rain and cold, the record
establishes that the officer placed the Defendant in the patrol car primarily to determine whether he
became more nervous. Moreover, the videotape of the traffic stop, which also includes several other
traffic stops conducted by Officer Nichols over the course of the three-day period, refutes the
explanation offered by the State. In six of those detentions, all of which occurred at roughly the

-8-
same location on Interstate 40, the driver was asked to step outside the vehicle. Of those six, four
were frisked and placed into the backseat of the patrol car. Only the Defendant’s stop involved
inclement weather. That the officer conducted a “frisk and sit” in those instances regardless of the
weather or the time of day supports our conclusion that the extended detention in this case lacked
a reasonable basis.

While in this case Officer Nichols’ intuition and persistence frustrated the illegal activities
of the Defendant, a fact that would otherwise merit praise, our approval of this particular “frisk and
sit” would deviate from generations of law in this area. The Supreme Court has warned that
“illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight
deviations from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 635 (1886).2
Moreover, those jurisdictions that permit a detention like this during a routine traffic stop do not
allow a pat-down for weapons in the absence of reasonable suspicion. See, e.g., Lozada, 748 N.E.2d
at 524 (“[D]uring a routine traffic stop, it is unreasonable for an officer to search the driver for
weapons before placing him or her in a patrol car, if the sole reason for placing the driver in the
patrol car during the investigation is for the convenience of the officer.”). Other jurisdictions have
concluded that a pat-down for weapons is permissible before placing a person into a patrol car so
long as there was a reasonable basis for the placement. As stated by one New York court, “Although
a police officer may reasonably pat down a person before he places him in the back of a police
vehicle, the legitimacy of that procedure depends on the legitimacy of placing him in the police car
in the first place.” People v. Kinsella, 527 N.Y.S.2d 899, 899 (N.Y. App. Div. 1988).

Officer Nichols lacked a reasonable basis for placing the Defendant into the secured area of
his patrol car and also lacked an independent basis for the frisk. The Court of Criminal Appeals so
held, regardless of whether the duration and scope of the subsequent interrogation exceeded
constitutional limits. In our view, that is the proper analysis.

III. Consent to Search

In the alternative, the State argues that even if the “frisk and sit” was improper, the Court of
Criminal Appeals erred by concluding that the Defendant’s consent to search his vehicle was not
sufficiently attenuated from the constitutional impropriety. The State also argues that our decision
in State v. Garcia, 123 S.W.3d 335 (Tenn. 2003), should be overruled because it conflicts with the
landmark decision of the United States Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218
(1973).

Whether an individual voluntarily consents to a search is a question of fact to be determined
from the totality of the circumstances. See Schneckloth, 412 U.S. at 227; Cox, 171 S.W.3d at 184.

2
Examples of when it might be reasonable to place a driver in the secured area of a patrol car are: where a
dangerous crowd threatens the officer and driver, see Lozada, 748 N.E.2d at 524; during inclement weather, see State
v. Mertz, 362 N.W.2d 410, 413 (N.D. 1985); and failure to produce a driver’s license during a traffic stop as required
by state law, see State v. Evans, 618 N.E.2d 162, 167 (Ohio 1993).

-9-
The consent must be “‘unequivocal, specific, intelligently given, and uncontaminated by duress or
coercion.’” State v. Simpson, 968 S.W.2d 776, 784 (Tenn.1998) (quoting State v. Brown, 836
S.W.2d 530, 547 (Tenn.1992)). “The pertinent question is this: whether the [individual’s] act of
consenting is the product of an essentially free and unconstrained choice. If the [individual’s] will
was overborne and his or her capacity for self-determination critically impaired, due process is
offended.” Cox, 171 S.W.3d at 185 (citing Schneckloth, 412 U.S. at 225-26).

In Garcia, this Court observed that “‘a consent to search that is preceded by an illegal seizure
is not ‘fruit of the poisonous tree’ if the consent is both: 1) voluntary, and 2) not an exploitation of
the prior illegality.’” Garcia, 123 S.W.3d at 346 (citing Wayne LaFave, 3 Search and Seizure §
8.2(d) at 656 (3d ed. 1996)). We utilized the factors established in Brown v. Illinois, 422 U.S. 590,
603-04 (1975), for determining whether a voluntary confession was sufficiently attenuated from an
unlawful seizure. Those factors are “1) the temporal proximity of the illegal seizure and consent;
2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official
misconduct.” Garcia, 123 S.W.3d at 346. This Court acknowledged that “‘[a] brief time lapse
between a Fourth Amendment violation and consent often indicates exploitation [of the prior illegal
police action] because the effects of the misconduct have not had time to dissipate.’” Id. (quoting
State v. Hansen, 63 P.3d 650, 666 (Utah 2002)). By the application of these factors to the illegal
“frisk and sit” procedure, the Court of Criminal Appeals ruled that the Defendant’s consent to search
was not sufficiently attenuated from the intrusive act. We agree.

In Schneckloth, the Court stated that “the Fourth and Fourteenth Amendments require that
a consent not be coerced, by explicit or implicit means, by implied threat or covert force.” 412 U.S.
at 228. While in Garcia this Court acknowledged that “the Brown factors were designed to aid
courts in determining whether a confession was obtained by exploitation of an illegal arrest,” we
concluded that “these factors may also be used by courts to evaluate whether the causal connection
between an unlawful seizure and a subsequent consent has been broken, i.e. whether the primary
taint of an unlawful seizure has been sufficiently attenuated from the voluntary consent.” Garcia,
123 S.W.3d at 346. Our ruling in Garcia upholds the principle that when consent to search is not
sufficiently attenuated from an unlawful seizure, it is presumptively the product of coercion.

In this case, the Defendant consented to the search of his vehicle while he was unlawfully
detained in the secured area of the officer’s patrol car. The trial judge, who saw and heard the
witnesses firsthand, determined that the consent was the direct result of the unconstitutional
detention. There was no temporal separation between the illegal act and the consent. Further, there
were no intervening circumstances separating the two events. Finally, in this instance, “the purpose
and flagrancy of the official misconduct” weighs marginally in favor of the Defendant. As in Garcia,
a drug interdiction officer rather than a traffic officer conducted the stop. The detection of illegal
drugs rather than the enforcement of the traffic laws was the apparent purpose of the detention. See
Garcia, 123 S.W.3d at 347-48 (“Kohl’s status as a member of the drug task force adds to the
likelihood that her prolonged and unreasonable detention of the defendant was for the sole purpose
of obtaining consent to search his vehicle.”). In our view, the Defendant’s consent to the vehicle
search was the end product of his unlawful detention.

-10-
 CONCLUSION
In these specific circumstances, the arresting officer violated the state and federal
constitutions by frisking the Defendant and placing him in the secured area of his patrol car.
Because the consent to search was not adequately attenuated from the unlawful detention, the
judgments of the trial court and Court of Criminal Appeals suppressing the evidence seized during
the search of the Defendant’s vehicle are affirmed.

Because the Defendant is indigent, costs of the appeal are taxed to the State.

___________________________________
GARY R. WADE, JUSTICE

-11-