State v. Sherman

A passenger is not automatically seized during a traffic stop and the determination of his seizure is whether there was a significant “show of authority” by the police. Moreover, while voluntary consent given by the defendant is an important consideration, it does not cure any unlawful conduct committed by the police. The voluntary consent should be reviewed alongside “the nature of the unlawful [police] conduct, including its purpose and flagrancy, the temporal proximity between the unlawful conduct and consent, and the presence of intervening or mitigating circumstances.”

Defendant appealed his conviction of unlawful possession of methamphetamine arguing that though he was lawfully stopped by police, the stop was unlawfully extended and, subsequently, the evidence obtained was the product of an unlawful seizure. Defendant was a passenger of a car initially pulled over in an investigation of possible car prowling. The investigation of the car prowl ended, yet officers continued to converse with Defendant, ultimately gaining his consent for a search of his person which produced a small baggie of methamphetamine. Officers testified that Defendant was free to leave the scene after their initial suspicion of criminal activity for the car prowl had abated but Defendant was never told that he was free to leave. Moreover, a continual show of authority existed even after Defendant was free to leave, where probing questions were asked and three patrol cars were on scene, with at least one vehicle’s overhead lights still activated. This Court concluded that a reasonable person would not feel free to leave and that the search was therefore unlawfully extended. This Court also concluded that there was no probable cause to extend the stop and that the evidence found on Defendant should have been suppressed as requested. Reversed and remanded.