dissenting:
We all know that two wrongs do not make a right. Here, the majority concludes that under the “totality of the circumstances,” four rights make a wrong. 353 Ill. App. 3d at 333.
As the majority points out, after Deputy Eller asked defendant to step to the rear of her car, he advised her that he was issuing a warning ticket and then, as he handed her the ticket, her driver’s license and the car rental papers, he asked for permission to search her car. She gave permission. The deputy then asked her to sign a consent to search form. The defendant refused. The deputy then asked whether he still had her oral permission to search the car, and defendant once again orally consented to the search.
The only issue really is whether LaPoint’s consent to search the vehicle was voluntary or, as the majority finds, somehow coerced. The majority uses phrases such as: “he injected his request for consent into the seamless transition between mandatory and ‘consensual’ interaction” and “[a]t the very moment when such freedom arose in theory, Eller posed a diversionary question about searching the vehicle.” (Emphasis added.) 353 Ill. App. 3d at 333. While this is wonderful prose that gives the deputy’s actions a sinister flavor, I confess that I have no idea what it means.
Federal and state constitutions serve to protect an individual only from unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. The Illinois Supreme Court has consistently held that a search and seizure analysis is the same under the fourth amendment (U.S. Const., amend. IV) or the Illinois Constitution (Ill. Const. 1970, art. I, § 6). See Gonzalez, 204 Ill. 2d at 224, 789 N.E.2d at 264. While the fourth amendment does proscribe unreasonable searches and seizures, “it does not proscribe voluntary cooperation.” Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 401, 111 S. Ct. 2382, 2389 (1991). Consent is valid when it is voluntary, meaning that is freely given without duress or coercion. People v. Robinson, 322 Ill. App. 3d 169 (2001).
The United States Supreme Court has held that simply asking questions of a citizen is not a violation of the fourth amendment when the citizen is willing to listen. United States v. Drayton, 536 U.S. 194, 153 L. Ed. 2d 242, 122 S. Ct. 2105 (2002). Police may also generally request consent to search, even when officers have no basis for suspecting criminal activity. Florida v. Bostick, 501 U.S. 429, 434-35, 115 L. Ed. 2d 389, 398, 111 S. Ct. 2382, 2386 (1991).
The majority holds that defendant could not have felt free to refuse cooperation and depart. Yet, there was no evidence of coercion by the police officer. Examples of circumstances that might indicate a person was not free to leave include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877 (1980). Further, the deputy did not threaten (1) to arrest the defendant, (2) to further detain the defendant while awaiting a canine, or (3) to impound the vehicle if consent was refused. See People v. Sesmas, 227 Ill. App. 3d 1040, 1046-47, 591 N.E.2d 918 (1992); People v. DeLisle, 104 Ill. App. 3d 297, 432 N.E.2d 954 (1982) (holding that consent may be involuntary where defendant must choose between consenting and being arrested).
In Ohio v. Robinette, the Supreme Court stated that once a motor vehicle has lawfully been detained for a traffic violation, police officers may order a driver to get out of the vehicle without violating the fourth amendment’s proscription against unreasonable searches and seizures. Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996). Any motive the deputy may have had for removing the defendant from her vehicle is of no consequence to the fourth amendment analysis. Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 97-98, 116 S. Ct. 1769, 1774 (1996). Despite the Supreme Court’s holdings, the majority suggests that removing the motorist from the driver’s seat, although a totally constitutional act as announced in Robinette, had “separat[ed] [LaPoint] from her mode of departure” and makes any consent thereafter obtained involuntary. 353 Ill. App. 3d at 333.
The majority also takes notice of the fact that Eller did not advise the defendant that she was free to leave the traffic stop and also that she need not grant consent. There is no obligation on the officer to advise that the traffic stop is over and the motorist is free to leave prior to requesting permission to search. Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996). Neither is the officer required to advise a citizen of the right to refuse consent. Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996). The majority acknowledges Ohio v. Robinette and then ignores it. The operative facts in this case are virtually identical to those in Robinette and there the Supreme Court found no constitutional violation.
The only remaining issue relating to voluntariness that the majority addresses is the length of time between the completion of the traffic stop and the deputy’s request for consent. The majority’s conclusions, laid out alongside the Illinois Supreme Court’s decision in People v. Brownlee, 186 Ill. 2d 501 (1999), leave police with virtually no opportunity to ever obtain consent to search a vehicle on a traffic stop. The Brownlee court acknowledged “that an officer is always free to request permission to search.” 186 Ill. 2d at 515. The court, however, found the problem was not the officer’s requested permission to search the car, but “that the officers unconstitutionally detained the car and its occupants [for two minutes] before requesting permission to search the car and after the conclusion of the traffic stop.” (Emphasis omitted.) 186 Ill. 2d at 515. Here, the majority claims that the request for voluntary consent to search the vehicle was constitutionally offensive because the deputy first requested permission to search at the instant the traffic stop was completed.
If two minutes is too long, and a few seconds is not long enough, we have effectively stripped the police of Illinois of one of their most effective tools in ferreting out criminal activity. In fact, since this case is decided under the United States Constitution, the majority’s decision applies to police everywhere. See Ohio v. Robinette, 519 U.S. at 43, 136 L. Ed. 2d at 357, 117 S. Ct. at 423 (Ginsberg, J., concurring.)
On the facts of the case, there is little question as to the voluntariness of consent. Upon a request by Deputy Eller, LaPoint gave verbal consent. In fact, after defendant refused to sign a written consent to search, Eller asked whether he still had defendant’s oral consent to search. This question implied that defendant had the same right to refuse oral consent as she had to refuse to give written consent. There is no evidence of any threat or suggestion the Eller would search with or without the consent.
In conclusion: (1) a police officer may order a driver to get out of the vehicle under circumstances virtually identical to those here (Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996)); (2) there is no obligation on the officer to advise that the traffic stop is over and the motorist is free to leave prior to requesting permission to search (Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996)); (3) an officer is not required to advise a citizen of his right to refuse consent (Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996)); and (4) a police officer may not unreasonably detain a motorist after the conclusion of a traffic stop before requesting authority to search (People v. Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556 (1999)). The police officer’s actions here were in compliance with each of the above-listed rules of law. I respectfully dissent.