Amicus Curiae Brief — Ohio v. Robinette

Supreme Court, U.S.

FILED

APR 30 1996

=: ‘ies

In the Supreme Court of the United States

OCTOBER TERM, 1995

STATE OF OHIO, PETITIONER

v.

ROBERT D. ROBINETTE

ON WRIT OF CERTIORARI

TO THE OHIO SUPREME COURT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

DREw S. Days, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

PAUL A. ENGELMAYER

Assistant to the Solicitor

General

JOSEPH C. WYDERKO

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

N

QUESTION PRESENTED

Whether the Fourth Amendment categorically re-

quires a police officer who has validly stopped a

motorist for a traffic violation to inform the motorist

that he is free to leave before any questioning of the

motorist about matters unrelated to the original traf-

fic stop may be found to be consensual.

(I)

TABLE OF CONTENTS

The point at which a motorist who has been sub-

ject to a traffic stop would feel free to leave turns

on all facts and circumstances surrounding the

encounter, not solely on whether a police officer

has advised the motorist that he is free to leave ......

A. The totality of the circumstances governs

determinations of when a Fourth Amendment

seizure has begun and when the seizure has

B. At the time that respondent was asked whether

he would consent to the search of his car, a rea-

sonable person would have understood that he

EE ee

TABLE OF AUTHORITIES

Cases:

Berkemer v. McCarty, 468 U.S. 420 (1984) ..........

13

14

& =

22, 23

California v. Hodari D., 499 U.S. 621 (1991) .. 14, 16, 25

Delaware v. Prouse, 440 U.S. 648 (1979) ..............

13, 14

Florida v. Bostick, 501 U.S. 429 (1991) ... 9, 10, 11, 15,

16, 17, 23, 25, 26

Florida v. Rodriguez, 469 U.S. 1 (1984) .................. 16

Florida v. Royer, 460 U.S. 491 (1983) ... 10, 15, 16, 17, 24

Horton v. California, 496 U.S. 128 (1990) ............... 23

INS v. Delgado, 466 U.S. 210 (1984) ................. 16, 17, 21

Maryland v. Macon, 472 U.S. 463 (1985) ................ 23

Michigan v. Chesternut, 486 U.S. 567(1988).. 12, 15, 16,

17, 22, 23

(III)

IV Vv

Cases—Continued: Page Constitution and statute: Page

Miranda v. Arizona, 384 U.S. 436 (1966) ......ccecc0.-«. 23 U.S. Const. Amend. IV .......... 1, 8, 10, 11, 13, 14, 17, 19, 23

New York v. Class, 475 U.S. 106 (1986) .............000. 13 Ohio Rev. Code Ann. § 2925.11(A) (Anderson 1993)... 3

Ohio v. Johnson, 467 U.S. 493 (1984) ............ccccceeeee 8

Ohio v. Roberts, 448 U.S. 56 (1980) ..............ccccceecees 8

Pennsylvania v. Mimms, 434 U.S. 106 (1977) ......... 13

Reid v. Georgia, 448 U.S. 438 (1980) .....................00 13

Reynoldsville Casket Co. v. Hyde, 1158. Ct. 1745

CREED consesnscesecsnaressnsensssmnemanmnnisuattenemetetamnsmens x

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .. 9, 20, 21

Scott v. United States, 436 U.S. 128 (1978) ............ 23

South Dakota v. Opperman, 428 U.S. 364 (1976) .... 14

Terry v. Ohio, 392 U.S. 1 (1968) ............... 10, 13, 15, 16

United States v. Brignoni-Ponce, 422 U.S. 873

ee 13

United States v. Cortez, 449 U.S. 411 (1981) ........... 13

United States v. Hensley, 469 U.S. 221 (1985) ......... 13

United States v. Lee, 73 F.3d 1034 (10th Cir.

eS 19

United States v. Mendenhall, 446 U.S. 544 (1980).. 15, 16,

21, 25, 26

United States v. Rivera, 906 F.2d 319 (7th Cir.

a 19

United States v. Robinson, 414 U.S. 218 (1973) ...... 13

United States v. Rodriguez, 69 F.3d 136 (7th Cir.

SEED cercesnserssrscessnssessnsnssssssemnnieneentinnttiiimennientins 19

United States v. Sandoval, 29 F.3d 537 (10th Cir.

Ee 18

United States v. Sharpe, 470 U.S. 675 (1985) ......... 13

United States v. Sokolow, 490 U.S. 1 (1989) ........ 13, 16

United States v. Turner, F.2d 956 (10th Cir.),

cert. denied, 502 U.S. 881 (1991) ..........ccccccceeeeeeeneees 18

United States v. Watson, 423 U.S. 411 (1976) ......... 21

United States v. Werking, 915 F.2d 1404 (10th Cir.

BEG) ..ccccececcsssseccessecscccessesscceosssnssecqsesscssonssesssnossseesse 18

In the Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-891

STATE OF OHIO, PETITIONER

Vv.

RoBeErRT D. ROBINETTE

ON WRIT OF CERTIORARI

TO THE OHIO SUPREME COURT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether the

Fourth Amendment categorically requires a police

officer who has validly stopped a motorist for a traffic

violation to inform the motorist that he is free to

leave before any questioning of the motorist about

matters unrelated to the original traffic stop may be

found to be consensual. The Court’s analysis and

resolution of that question is likely to affect the

admissibility of evidence in federal criminal prosecu-

tions. Accordingly, the United States has an interest

in the proper resolution of the question presented.

(1)

STATEMENT

1. On August 3, 1992, Deputy Sheriff Roger New-

some stopped respondent on Interstate Highway 70 in

Montgomery County, Ohio, for driving 69 miles per

hour through a construction zone that had a speed

limit of 45 miles per hour. In order not to slow traffic

unduly, Deputy Newsome’s practice was to issue an

oral warning, rather than a citation, to motorists

speeding in the construction zone. Deputy Newsome

also was a member of a highway drug interdiction

program. As part of that program, he routinely asked

permission to search the cars that he stopped for

speeding violations. Pet. App. 2-3; Suppression Hear-

ing Tr. 6-7, 14-17, 19.

When the deputy approached the stopped car, re-

spondent was in the driver’s seat and another individ-

ual was in the front passenger seat. Deputy New-

some asked respondent for his driver’s license, and

respondent gave it to the deputy. Deputy Newsome

took the driver’s license to his cruiser. After deter-

mining that respondent had no outstanding violations,

the deputy returned to respondent’s car. Deputy

Newsome asked respondent to get out of the car and

to step to the rear of the vehicle. Respondent did so.

While respondent stood between his car and the

deputy’s cruiser, the deputy returned to his cruiser

and turned on the cruiser’s video camera. Pet. App. 2;

Suppression Hearing Tr. 7-9, 12-14, 21-22.

When the video camera was activated, Deputy

Newsome returned to respondent. He orally warned

respondent about the speeding violation and handed

the driver’s license back to respondent. Deputy

Newsome then asked: “One question before you get

gone [sic]; are you carrying any illegal contraband in

3

your car? Any weapons of any kind, drugs, anything

like that?” Respondent answered “no.” The deputy

asked whether all the luggage in the car belonged to

respondent and his passenger, and respondent replied

that it did. Deputy Newsome then asked for permis-

sion to search the car. Respondent consented to the

search. As a safety precaution, the deputy asked

respondent and the passenger to stand in front of the

car while he searched it. Pet. App. 2-3; Suppression

Hearing Tr. 7-9, 15-17, 22-31.

Deputy Newsome found a small amount of mari-

juana in the car’s console. Before continuing the

search, the deputy placed respondent and the pas-

senger in the back seat of his cruiser. When he re-

sumed searching the car, Deputy Newsome found a

methylene dioxy methamphetamine (MDMA) pill in a

clear plastic film container. Deputy Newsome then

placed respondent under arrest. Pet. App. 3; Sup-

pression Hearing Tr. 10-11, 17-20. Based on his pos-

session of the MDMA pill, respondent was indicted for

drug abuse, in violation of Ohio Rev. Code Ann.

§ 2925.11(A) (Anderson 1993). Pet. App. 3.

2. Respondent filed a motion to suppress the

evidence found during the search of his car. At the

suppression hearing, respondent testified that he felt

that he was free to leave after the deputy gave him the

oral warning about the speeding violation and

returned his driver’s license to him. Suppression

Hearing Tr. 23, 27.' He also testified that he was

' On direct examination, respondent testified (Suppression

Hearing Tr. 23):

Q. And did [the deputy) indicate to you at that time

that he was giving you a warning and that you were

free to go?

4

“sort of shocked” when the deputy requested per-

mission to search the car, “automatically” answered

“ves,” and felt that he could not refuse the deputy’s

request. Pet. App. 3; Suppression Hearing Tr. 24, 29.

Respondent further testified that he had been stopped

for speeding in the past and that he had a bachelor of

science degree in botany. /d. at 30-31.

3. The trial court denied the motion to suppress.

Pet. App. 24-26. The pertinent question, it stated, “is

the validity of the consent given by [respondent].”

A. Yes, he did.

Q. And then at that time, I think, as the tape will

reflect, the officer asked you some questions about

did you have any weapons of any kind, drugs,

anything like that. Do you recall that question?

A. Yes.

What was running through your head at that time?

©

A. Uhm, surprised. I didn’t know what—where he was

coming from or what was going on or why he was

asking me the question.

Q. Did you in fact feel you were free to leave at that

point?

A. I thought I was.

Q. And did you attempt to leave at that point?

A. Uhm, I was beginning to. Yes.

On cross-examination, respondent similarly testified (id.

at 27):

Q. I believe you testified that Deputy Newsome re-

turned your driver’s license to you. And at that

point you felt that you were free to leave; is that

correct?

A. Yes.

5

Id. at 25. In resolving that question, the court was

“greatly aided by [the] video tape of the encounter.”

Ibid. Ordinarily, the court explained, the fact that

respondent had been in custody during the traffic stop

would be “of great significance” to the determination

whether his ensuing consent was valid. Jbid. Based

on the videotape, however, the court noted that, before

asking about the presence of contraband and seeking

consent to search, the officer had “made it clear to

[respondent] that the traffic matter was concluded.”

Ibid. The court also rejected respondent’s claim that

his consent necessarily had been invalid because he

had been unaware of his right to refuse the request

for consent to search his car. Rather, the court found

that “(t]he manner of inquiry, the phrasing of the

request and the position of the parties eliminates the

suggestion of overbearance by the officer.” Ibid. The

court held that those circumstances, “coupled with

[respondent’s] education and intelligence[,] cause this

court to find that [respondent’s] consent was valid and

not the product of duress or coercion.” Jd. at 25-26.

Respondent thereupon entered a no-contest plea and

was found guilty. Jd. at 17.

4. The district court of appeals reversed. Pet. App.

15-23. It held that “a reasonable person in [respon-

dent’s] position would not believe that the investiga-

tive stop had been concluded, and that he or she was

free to go, so long as the police officer was continuing

to ask investigative questions.” Jd. at 17-18. More-

over, the court held, “once a police officer has issued a

traffic citation or warning for a speeding violation, it

is unreasonable to detain the motorist further for the

purpose of obtaining consent to search for drugs or

alcohol, absent a reasonable and articulable suspicion

that the motorist is transporting either drugs or

6

alcohol.” Jd. at 18. “Because the search * * * re-

sulted from an unlawful detention,” the court con-

cluded, “the fact that [respondent], during the unlaw-

ful detention, may have consented to the search is

immaterial.” Ibid.

Judge Wolff dissented. Pet. App. 18-22. He argued

that, at the time that respondent consented to the

search, a reasonable person in respondent’s position

would have believed “that the investigative stop had

been concluded, and that he or she was free to go.” Id.

at 20. He noted that respondent had a college degree

and had testified that, after receiving his driver’s

license from the deputy, he had felt free to leave. Jd.

at 22. Judge Wolff thus agreed with the trial court

that respondent was not “detained” when he con-

sented to the search of the car. Whether a detention

has come to an end, Judge Wolff stated, should be

determined “on a case-by-case basis.” bid.

5. The Ohio Supreme Court affirmed. Pet. App. 1-

14. The four-justice majority held that the search of

respondent’s car “was invalid since it was the product

of an unlawful seizure.” Jd. at 4. The court explained

that, while the decision to stop respondent for speed-

ing had been justified, once Deputy Newsome re-

turned to respondent’s car after checking his license,

“every aspect of the speeding violation had been

investigated and resolved.” Jd. at 6. And, the court

held, “{[wJhen the motivation behind a police officer’s

continued detention of a person stopped for a traffic

violation is not related to the purpose of the original,

constitutional stop, and when that continued deten-

tion is not based on any articulable facts giving rise

to a suspicion of some separate illegal activity justify-

ing an extension of the detention, the continued

detention constitutes an illegal seizure.” Jbid. In

7

this case, the court held, the officer asked respondent

to exit his car solely for the purpose of questioning

him about matters unrelated to the speeding violation

and regarding which there was neither probable cause

nor reasonable suspicion to believe that a crime had

been committed. /d. at 6-7. Thus, “the detention of

[respondent] ceased being legal when Newsome asked

him to leave his vehicle.” Jd. at 7. And, because

respondent’s consent to search “clearly was the

result of his illegal detention, and was not the result

. 4 act of will on his part,” that consent was invalid.

id.

In so holding, the Ohio Supreme Court emphasized

that it was adopting “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.” Pet. App. 4;

see id. at 8. The court explained (id. at 8-9):

The transition between detention and a con-

sensual exchange can be so seamless that the un-

trained eye may not notice that it has occurred.

The undetectability of that transition may be used

by police officers to coerce citizens into answer-

ing questions that they need not answer, or to

allow a search of a vehicle that they are not

legally obligated to allow.

* * * * *

Most people believe that they are validly in a

police officer’s custody as long as the officer

continues to interrogate them. The police officer

retains the upper hand and the accouterments of

authority. That the officer lacks legal license to

continue to detain them is unknown to most citi-

8

zens, and a reasonable person would not feel free

to walk away as the officer continues to address

him.

Because “[{a] ‘consensual encounter’ immediately fol-

lowing a detention is likely to be imbued with the

authoritative aura of the detention,” the court held,

“citizens stopped for traffic offenses [must] be clearly

informed by the detaining officer when they are free

to go after a valid detention, before an officer attempts

to engage in a consensual interrogation.” Jd. at 9.

“Any attempt at consensual interrogation,” the court

stated, “must be preceded by the phrase ‘At this time

you legally are free to go’ or by words of similar

import.” Ibid.’

Justice Sweeney, joined by two other justices, dis-

sented. Pet. App. 10-14. He argued that the “unique”

bright-line test adopted by the majority was “con-

trary to well-established state and federal constitu-

tional law” and “vastly undercuts our law enforce-

ment’s ability to ferret out crime.” Jd. at 10. Justice

Sweeney noted that “the crucial test” in determining

whether a citizen’s encounter with a police officer is

consensual or is a Fourth Amendment seizure “has

always been ‘whether, taking into account all of the

circumstances surrounding the encounter, the police

conduct “would have communicated to a reasonable

person that he was not at liberty to ignore the police

presence and go about his business.”’” Jd. at 10-11

2 That principle is made clear in the syllabus of the Ohio

Supreme Court’s decision, see Pet. App. 1, which constitutes

“the authoritative basis for its decision.” Reynoldsville Casket

Co. v. Hyde, 115 S. Ct. 1745, 1748 (1995); Ohio v. Johnson, 467

U.S. 493, 497 n.7 (1984); Ohio v. Roberts, 448 U.S. 56, 61 n.3

(1980).

9

(quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)).

Contrary to the majority’s bright-line rule, Justice

Sweeney observed, “being informed of the right to

refuse a search is but one factor to be taken into

account when determining whether consent was

freely given; it is not the ‘sine qua non of an ef-

fective consent.’” Jd. at 12 (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 227 (1973)). And, he noted,

there is no basis for departing from that approach

in determining whether a person must be informed

of the right to leave the scene of a detention. Jbid.

Thus, “{wJhether the police officer uttered a warning

is a relevant consideration, but it does not end the

inquiry.” Ibid.

Applying the totality-of-the-circumstances test,

Justice Sweeney concluded that the encounter be-

tween respondent and the police officer became “an

ordinary consensual encounter” after the officer had

returned respondent’s driver’s license. Pet. App. 12.

He argued that “[respondent’s] consent should not be

invalidated solely because it followed a traffic stop and

simply because the police officer failed to warn

[respondent] that he was free to go.” Jbid. Rather,

“(t]he utterance of these ‘magic words’ is but one

factor for the fact-finder to consider when making the

determination as to whether consent was voluntarily

given.” Id. at 12-13. Justice Sweeney noted that

“({t)h[e] technique of requesting consent following an

initial valid detention is employed on a daily basis

throughout this nation to interdict the flow of drugs,”

and when the police inquiry is itself not coercive, a

citizen’s consent should not be invalidated. Jd. at 14.

10

SUMMARY OF ARGUMENT

The fundamental requirement of the Fourth

Amendment is that searches and seizures be rea-

sonable. As this Court has long recognized, however,

“not all personal intercourse between policemen and

citizens involves ‘seizures’ of persons. Only when the

officer, by means of physical force or show of author-

ity, has in some way restrained the liberty of a citizen

may we conclude that a ‘seizure’ has occurred.”

Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting

Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). Where an

individual is not seized, an officer is generally free to

ask questions of him, to ask to examine his identifica-

tion, and to request consent to search his property,

provided, of course, that in doing so the officer does

not “convey a message that compliance with [his]

requests is required.” Bostick, 501 U.S. at 435; id. at

437; Florida v. Royer, 460 U.S. 491, 498 (1983) (opinion

of White, J.) (“If there is no detention—no seizure

within the meaning of the Fourth Amendment—then

no constitutional rights have been infringed.”).

Respondent was unquestionably “seized” within

the meaning of the Fourth Amendment when Deputy

Newsome stopped his automobile for speeding. The

decisive question in this case is whether respondent

was still seized as of the moment when Deputy New-

some, having issued respondent a warning for the

traffic offense and returned his driver’s license, re-

quested and received respondent’s consent to search

the car. The Ohio Supreme Court held that respon-

dent was still seized at that point. And, because the

court held that Deputy Newsome lacked justification

to extend the seizure to pose questions unrelated to

the purpose of the traffic stop, it ruled that respon-

11

dent’s corisent had been the product of an unlawful

detention and hence violated the Fourth Amendment.

A. In holding that respondent was still seized at

that point, the Ohio Supreme Court erred. The court

based that holding on a new “bright-line test” (Pet.

App. 4, 8) under which a seizure of a motorist invaria-

bly persists until an officer instructs the motorist

that “‘[ajt this time you legally are free to go’ or

[uses] words of similar import” (id. at 9). This Court,

however, has consistently held that whether a per-

son has been seized turns on “whether, taking into

account all of the circumstances surrounding the en-

counter, the police conduct would have communicated

to a reasonable person that he was not at liberty to

ignore the police presence and go about his business.”

Bostick, 501 U.S. at 437 (internal quotation marks

omitted). The Court has accordingly rejected per

se rules that determine, as a categorical matter,

whether an individual has been seized.

An inquiry into the totality of the circumstances of

an encounter is similarly appropriate to determine

whether a seizure, once begun, has terminated. In

holding that an encounter between an officer and a

motorist following a traffic stop invariably con-

stitutes a seizure until the motorist is told he is free

to go, the Ohio Supreme Court relied on the fact that

“[t]he transition between detention and a consensual

exchange” ‘Pet. App. 8) may be difficult for a civilian

to discern. The same, however, is true of the reverse

situation in which an initially consensual encounter

develops into a seizure. Yet this Court has never held

that citizens are entitled to be notified before, or at

the time when, such a Fourth Amendment event has

commenced. Indeed, the requirement of mandatory

police notification imposed by the Ohio Supreme

12

Court conflicts with this Court's consistent refusal

to mandate prophylactic warnings to citizens in other

areas of interaction with police.

Also unpersuasive as a basis for a “bright-line test”

is the possibility that a consensual conversation that

follows a detention will “be imbued with the authori-

tative aura of the detention.” Pet. App. 9. In particu-

lar cases, that factor may prove significant in deter-

mining whether an individual continued to be seized

at a particular point. The totality of the circum-

stances test, however, fully accommodates considera-

tion of that factor, because, as this Court has empha-

sized, that test takes into account “not only * * *

the particular police conduct at issue, but also * * *

the setting in which the conduct occurs.” Michigan

v. Chesternut, 486 U.S. 567, 573 (1988). While an

officer’s statements to the motorist are relevant to

the determination whether a reasonable person would

feel free to terminate his encounter with the police,

talismanic reliance on whether an officer has ex-

pressly advised a motorist that detention has ended

ignores the fact that other circumstances may also

convey to the motorist that he is free to do so. Those

factors may include the fact that the officer has

returned the driver’s license and registration, the

officer’s manner and phrasing of inquiry, and the

position of the parties.

B. As the trial court held after reviewing the video-

tape of the encounter in this case, those factors dem-

onstrate that, at the time the officer asked respondent

whether he would consent to a search of his car, a

reasonable person would have understood that he was

free to terminate the encounter. Among other things,

Deputy Newsome had returned respondent’s license,

had completed the business of the traffic stop by

13

giving respondent a warning, did not demand that

respondent answer his several questions, and did not

engage in any show of authority. It was therefore

lawful for Deputy Newsome to ask respondent for

permission to search the car, and respondent’s con-

sent to that request was not the product of a Fourth

Amendment seizure.

ARGUMENT

THE POINT AT WHICH A MOTORIST WHO HAS BEEN

SUBJECT TO A TRAFFIC STOP WOULD FEEL FREE

TO LEAVE TURNS ON ALL FACTS AND CIRCUM-

STANCES SURROUNDING THE ENCOUNTER, NOT

SOLELY ON WHETHER A POLICE OFFICER HAS AD-

VISED THE MOTORIST THAT HE IS FREE TO LEAVE

A traffic stop may lawfully be initiated based on an

officer’s reasonable belief that a motorist may be in

violation of the traffic laws. The Ohio Supreme

% Such a traffic stop may be initiated upon a showing of

reasonable suspicion, based on specific and articulable facts, to

believe that an offense has been committed. See, e.g., United

States v. Sharpe, 470 U.S. 675, 682 (1985); United States v.

Hensley, 469 U.S. 221, 226 (1985); United States v. Cortez, 449

U.S. 411, 417-418 (1981); Delaware v. Prowse, 440 U.S. 648, 653-

654, 663 (1979); United States v. Brignoni-Ponce, 422 U.S. 873,

880-884 (1975); see also United States v. Sokolow, 490 U.S. 1, 7

(1989); Reid v. Georgia, 448 U.S. 438, 440 (1980) (per curiam);

Terry v. Ohio, 392 U.S. 1 (1968). Where an officer has observed

a traffic violation, the higher standard of probable cause is

met. See, e.g., New York v. Class, 475 U.S. 106, 117-118 (1986)

(stop of car for speeding and cracked windshield); id. at 125

(Brennan, J., concurring in part and dissenting in part);

Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (per curiam)

(stop of car bearing expired license tags); United States v.

Robinson, 414 U.S. 218, 220-221 (1973) (stop of car for driving

14

Court did not dispute that after completion of the stop

(including questioning reasonably related to its

justifications) a motorist may validly consent to

additional police questioning, or to a search of his

vehicle, provided that the encounter is consensual.’ It

held, however, that the Fourth Amendment imposes

a bright-line rule that no such encounter may be

deemed consensual unless the officer first informs

the motorist, in specific terms, that he is free to

leave. In our view, the court erred in adopting such a

per se rule. Just as the question whether a seizure

has begun is determined by examining the totality of

the circumstances, so also is the question whether a

seizure has ended.

A. The Totality Of The Circumstances Governs Deter-

minations Of When A Fourth Amendment Seizure

Has Begun And When The Seizure Has Ended

1. As the Court has explained, “a seizure does not

occur simply because a police officer approaches an

individual and asks a few questions. So long as a

reasonable person would feel free ‘to disregard the

police and go about his business,’ California v.

Hodari D., 499 U.S. 621, 628 (1991), the encounter is

consensual and no reasonable suspicion is required.

The encounter will not trigger Fourth Amendment

without a license); see also Prowse, 440 U.S. at 659; South

Dakota v. Opperman, 428 U.S. 364, 368 (1976).

4 Petitioner has not presented the question whether it is

reasonable briefly to extend a traffic stop whose business has

otherwise been completed to ask a motorist, as did Deputy

Newsome, whether he is carrying illegal drugs or firearms and

whether he would consent to a search of the car. Nor does this

case present the question whether it is reasonable to ask such

questions during a traffic stop whose business is ongoing.

15

scrutiny unless it loses its consensual nature.”

Florida v. Bostick, 501 U.S. 429, 434 (1991). Accord-

ingly, “law enforcement officers do not violate the

Fourth Amendment by merely approaching an in-

dividual on the street or in another public place, by

asking him if he is willing to answer some questions,

by putting questions to him if the person is willing to

listen, or by offering in evidence in a criminal pros-

ecution his voluntary answers to such questions.”

Ibid. (quoting Florida v. Royer, 460 U.S. 491, 497

(1983) (opinion of White, J.)). See United States v.

Mendenhall, 446 U.S. 544, 553 (1980) (opinion of

Stewart, J.) (there is “nothing in the Constitution

which prevents a policeman from addressing ques-

tions to anyone on the streets”) (quoting Terry v.

Ohio, 392 U.S. 1, 34 (1968) (White, J., concurring)).

This Court has addressed a number of situations

requiring a determination whether—and, if so, when

—a defendant has been seized during a discussion

with law enforcement officers. The test that it has

developed to distinguish seizures from consensual

encounters is whether, “in view of all of the circum-

stances surrounding the incident, a reasonable person

would have believed that he was not free to leave.”

Michigan v. Chesternut, 486 U.S. 567, 573 (1988)

(quoting Mendenhall, 446 U.S. at 554 (opinion of

Stewart, J.)). A seizure thus occurs at the point that

a reasonable person would think that he was not free

to terminate a conversation and go about his business.

Circumstances that “might indicate a seizure * * *

[include] the threatening presence of several officers,

the display of a weapon by an officer, some physi-

cal touching of the person of the citizen, or the use

of language or tone of voice indicating that compli-

ance with the officer’s request might be compelled.”

16

Mendenhall, 446 U.S. at 554 (opinion of Stewart, J.);

see United States v. Sokolow, 490 U.S. 1, 7 (1989)

(where DEA agents “grabbed [suspect] by the arm

and moved him back onto the sidewalk,” Court as-

sumed that a seizure had occurred); Terry, 392 U.S.

at 19 (where officer “took hold of [suspect] and patted

down the outer surfaces of his clothing,” seizure

occurred). But, “{iJn the absence of some such evi-

dence, otherwise inoffensive contact between a mem-

ber of the public and the police cannot, as a matter of

law, amount to a seizure of t’ >» person.” Mendenhall,

446 U.S. at 555 (opinion vi Stewart, J.); see also

Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984) (per

curiam).

In applying the test of whether a reasonable person

would feel free to leave, this Court has repeatedly

emphasized the need to examine all of the facts and

circumstances surrounding a citizen’s interaction

with police. See, e.g., Bostick, 501 U.S. at 436-437;

Hodari D., 499 U.S. at 627-628; Chesternut, 486 U.S.

at 573-574; Rodriguez, 469 U.S. at 5-6; INS v.

Delgado, 466 U.S. 210, 215 (1984); Royer, 460 U.S. at

502 (opinion of White, J.); id. at 514 (Blackmun, J.,

dissenting); Mendenhall, 446 U.S. at 555 (opinion of

Stewart, J.). In so doing, the Court has rejected per

se rules that would purport categorically to deter-

mine whether a citizen had been seized. In Bostick,

for example, the Court rejected the claim that police

questioning aboard a bus necessarily constitutes a

seizure. The Florida Supreme Court had held that,

because such questioning occurs in “cramped con-

fines” where the presence of police is unusually

intimidating, and because a passenger who wishes

to avoid police is necessarily forced to divert from

his travel schedule, questioning by drug-interdiction

17

police invariably constitutes a seizure requiring

Fourth Amendment justification. 501 U.S. at 435.

This Court, however, held that the correct inquiry

is “whether a reasonable person would feel free to

decline the officers’ requests or otherwise terminate

the encounter.” Bostick, 501 U.S. at 436. That in-

quiry, the Court held, is made “taking into account all

of the circumstances surrounding the encounter.” /d.

at 437 (quoting Chesternut, 486 U.S. at 569). And

while “[w)here the encounter takes place is one

factor, * * * it is not the only one.” /bid; see also id.

at 439. Thus, the Court held (id. at 439-440):

[Ijn order to determine whether a particular en-

counter constitutes a seizure, a court must con-

sider all the circumstances surrounding the en-

counter to determine whether the police conduct

would have communicated to a reasonable person

that the person was not free to decline the officers’

requests or otherwise terminate the encounter.

That rule applies to encounters that take place on

a city street or in an airport lobby, and it applies

equally to encounters on a bus.

Similarly, in Chesternut, the Court rejected a

“bright-line rule” adopted by the Michigan Supreme

Court that any “investigatory pursuit” of a motorist

constitutes a Fourth Amendment seizure. 486 U.S. at

572. Instead, the Court held, “any assessment as to

whether police conduct amounts to a seizure impli-

cating the Fourth Amendment must take into account

‘all of the circumstances surrounding the incident’ in

each individual case.” /bid. (quoting Delgado, 466

U.S. at 215). See Royer, 460 U.S. at 506-507 (opinion

of White, J.) (there is no “litmus-paper test for distin-

guishing a consensual encounter from a seizure,” as

18

“there will be endless variations in the facts and

circumstances, so much variation that it is unlikely

that the courts can reduce to a sentence or a para-

graph a rule that will provide unarguable answers”).

2. The Ohio Supreme Court adopted a bright-line

test requiring that no questioning following a traffic

stop may be found consensual unless the officer has

expressly informed the motorist that he is free to

leave. As the lower federal courts have consistent-

ly held, however, the determination of the point at

which a seizure has concluded should instead be made

in light of the totality of the circumstances of the

encounter between the citizen and the police. The

content and manner of any statements that an officer

makes to or in the presence of the motorist have

an important bearing upon whether a reasonable

motorist would believe that he was free to leave.”

Other factors, however, may also bear decisively on

that issue. Those factors include whether the officer

has returned the motorist’s identification documents;

whether the officer has completed the business of the

traffic stop by issuing a summons or giving a warning

to the motorist; whether the officer displays accou-

trements of authority; and the officer’s statements,

tone, position, and manner towards the motorist.*

5 See, e.g., United States v. Sandoval, 29 F.3d 537, 540-542

(10th Cir. 1994) (finding that seizure persisted where motor-

ist asked, “That’s it?,” and officer responded, “No, wait a

minute”).

8 See, e.g., United States v. Turner, 928 F.2d 956, 959 (10th

Cir.) (encounter between motorist and officer who had made

traffic stop became consensual after officer returned license

and registration and made no “coercive show of authority”),

cert. denied, 502 U.S. 881 (1991); United States v. Werking,

915 F.2d 1404, 1408-1409 (10th Cir. 1990) (encounter between

19

In holding that, regardless of the other circum-

stances of the encounter, an encounter between an

officer and a motorist following a traffic stop invaria-

bly constitutes a seizure until an officer expressly

advises the motorist that he is free to leave, the Ohio

Supreme Court relied on two considerations. First,

the court stated, absent express notification to the

motorist that the seizure has concluded, “(t]he transi-

tion between detention and a consensual exchange can

be so seamless that the untrained eye [of a motorist]

may not notice that it has occurred.” Pet. App. 8.

The same, however, is true of the familiar reverse

situation in which a police-citizen encounter that

began consensually develops into a Fourth Amend-

ment seizure. Yet this Court has never held that

citizens are entitled to be notified by the officer

whether, and when, such a Fourth Amendment event

has commenced.

On the contrary, the Ohio Supreme Court’s re-

quirement that a motorist be admonished that he is

motorist and officer who had made traffic stop “became an

ordinary consensual encounter” after officer returned driver’s

license and thereafter did not make an “overbearing show of

authority”); United States v. Rivera, 906 F.2d 319, 322-323 (7th

Cir. 1990) (traffic-stop seizure had concluded and become a

consensual encounter once trooper wrote warning, returned

identification documents, and told motorist “that was it”); see

also United States v. Lee, 73 F.3d 1034, 1040 (10th Cir. 1996)

(seizure held to continue where, as of point that officer

requested consent to search car, officer still held onto license

and registration papers); cf. United States v. Rodriguez, 69

F.3d 136, 141-142 (7th Cir. 1995) (in context of encounter with

airport traveler, mere voluntary production of travel docu-

ments does not constitute a seizure, although “the lengthy

retention of documents such as identification and airline tickets

is a factor in determining whether a stop has occurred”).

20

free to leave conflicts with this Court’s consistent

refusal to mandate prophylactic warnings to citizens

in other areas of interaction with police. In Schneck-

loth v. Bustamonte, 412 U.S. 218 (1973), for example,

the Court held that whether an indivilual’s “consent

to a search was in fact ‘voluntary’ or was the product

of duress or coercion, express or implied, is a ques-

tion of fact to be determined from the totality of all

the circumstances.” Jd. at 227. The Court thus re-

jected a propose’ per se rule that the government

establish that the individual knew that he has the

right to refuse consent: “While knowledge of the

right to refuse consent is one factor to be taken into

account, the government need not establish such

knowledge as the sine qua non of an effective

consent.” Ibid. The Court stated (id. at 231-232) that

lower courts had rightly repudiated the approach of

requiring a subject of a search to be advised of his

right to refuse to give consent:

[I]t would be thoroughly impractical to impose on

the normal consent search the detailed require-

ments of an effective warning. Consert searches

are part of the standard investigatory techniques

of law enforcement agencies. They normally oc-

cur on the highway, or in a person’s home or office,

and under informal and unstructured conditions.

The circumstances that prompt the initial request

to search may develop quickly or be a logical

extension of investigative police questioning. The

police may seek to investigate further suspicious

circumstances or to follow up leads developed in

questioning persons at the scene of a crime.

These situations are a far cry from the structured

atmosphere of a trial where, assisted by counsel if

21

he chooses, a defendant is informed of his trial

rights. Cf. Boykin v. Alabama, 395 U.S. 238, 243

[(1969)]. And, while surely a closer question, these

situations are still immeasurably far removed

from “custodial interrogation” where, in Miranda

v. Arizona, [384 U.S. 436 (1966)], we found that the

Constitution required certain now familiar warn-

ings as a prerequisite to police interrogation.

Similarly, in Delgado, the Court rejected the no-

tion that, before posing questions to a citizen, an

officer should advise the citizen of his right not to

respond. “While most citizens will respond to a police

request,” the Court noted, “the fact that people do so,

and do so without being told they are free not to

respond, hardly eliminates the consensual nature of

the response.” 466 U.S. at 216 (citing Schneckloth,

supra). See United States v. Watson, 423 U.S. 411,

424 (1976) (“(T]he absence of proof that [the defendant}

knew he could withhold his consent, though it may be

a factor in the overall judgment, is not to be given

controlling significance.”); Mendenhall, 446 U.S. at

555 (opinion of Stewart, J.) (conclusion that police did

not seize airport traveler “is not affected by the fact

that the respondent was not expressly told by the

agents that she was free to decline to cooperate with

their inquiry, for the voluntariness of her responses

does not depend upon her having been so informed”)

(citing Schneckloth, supra).

The Ohio Supreme Court also based its “bright-line

rule” on the “likel[ihood]” that a consensual encoun-

ter that immediately follows a traffic stop will “be

imbued with the authoritative aura of the deten-

tion.” Pet. App. 9. The court explained that “[m]Jost

people believe that they are validly in a police officer’s

22

custody as long as the officer continues to interro-

gate them.” Jbid. That factor does not, however,

justify a categorical requirement of formal notifica-

tion of the right to leave. Rather, it commends giving

weight, in the inquiry into whether a reasonable

person would have believed at a particular point that

he was free to leave, to the fact that an encounter had

its roots in a nonconsensual stop. The traditional

inquiry into “the coercive effect of police conduct,

taken as a whole,” Chesternut, 486 U.S. at 573,

accommodates consideration of that factor, because,

as this Court has explained, “what constitutes a

restraint on liberty prompting a person to conclude

that he is not free to ‘leave’ will vary, not only with

the particular police conduct at issue, but also with

the setting in which the conduct occurs,” ibid. Thus,

“the test is flexible enough to be applied to the whole

range of police conduct in an equally broad range of

settings.” Jd. at 574. Where other factors would

make clear to a reasonable motorist that he is free to

leave, there is no reason to deem the encounter a

continuing seizure solely because the officer has not

expressly articulated that fact.

Finally, while the Ohio Supreme Court confined its

“bright-line” requirement that there be an explicit

notification that a seizure has concluded to the con-

text of interrogations of motorists following traffic

stops (Pet. App. 4, 9), the arguments it advanced do

not logically limit themselves to that context. In-

stead, taken to its logical extreme, the court’s ap-

proach would oblige officers to make similar declara-

tions at the close of brief investigative detentions in

the manifold contexts in which they daily occur—

including streets, airports, bus and train stations, and

public conveyances. See Berkemer v. McCarty, 468

23

U.S. 420, 439-440 (1984) (noting that the “compara-

tively nonthreatening character” of traffic stops rela-

tive to formal arrests makes such stops akin to Terry

stops, and holding that the arrest-context require-

ment of Miranda warnings thus does not apply to

roadside questioning of a motorist).’ There is no jus-

tification for abandoning the long-standing totality-

of-the-circumstances test to impose such a burden-

some and mechanical requirement of formal notifica-

tion upon law enforcement officers.*

’ The Court in Berkemer noted that “[t}wo features of an

ordinary traffic stop mitigate the danger that a person

questioned will be induced ‘to speak where he would not

otherwise do so freely’” (468 U.S. at 437 (quoting Miranda v.

Arizona, 384 U.S. 436, 467 (1966))) and make roadside

questioning analogous to a Terry stop (id. at 439). First, “de-

tention of a motorist pursuant to a traffic stop is presumptively

temporary and brief.” /d. at 437. Second, the “circumstances

associated with the typical traffic stop,” including its exposure

to public view, “are not such that the motorist feels completely

at the mercy of the police.” Jd. at 438.

® The Ohio Supreme Court also appeared to base its holding

that respondent was seized on its perception that, in continuing

to question respondent after the business of the traffic stop had

been completed, Deputy Newsome acted out of a “motivation”

unrelated to “the purpose of the original, constitutional stop.”

Pet. App. 6. To the extent that the court’s analysis turned on

the officer’s subjective motivations, it was in error. As this

Court has held repeatedly, the reasonableness of police conduct

under the Fourth Amendment turns solely “on an objective

assessment of the officer’s actions in light of the facts and

circumstances confronting him at the time.” Maryland v.

Macon, 472 U.S. 463, 470-471 (1985) (quoting Scott v. United

States, 436 U.S. 128, 136 (1978)); Horton v. California, 496 U.S.

128, 138 (1990); see also Bostick, 501 U.S. at 439; Chesternut,

486 U.S. at 574. Compare Whren v. United States, No. 95-5841

(argued April 17, 1996) (presenting question whether motorist

may challenge reasonableness of traffic stop based on probable

24

B. At The Time That Respondent Was Asked Whether

He Would Consent To The Search Of His Car, A

Reasonable Person Would Have Understood That He

Was Free To Leave

Under the totality-of-the-circumstances test, it is

clear, as the trial court held (Pet. App. 24-26) that, at

the point that Deputy Newsome requested consent to

search respondent’s car, a reasonable person in re-

spondent’s situation would have understood that he

was free to leave. By that point, Deputy Newsome

had returned respondent’s driver’s license. He had

also completed the business of the traffic stop, having

orally warned respondent about the speeding violation

while giving no indication that any further enforce-

ment action would be taken. Compare cases cited at

note 6, supra; Royer, 460 U.S. at 504 n.9 (opinion of

White, J.) (“Royer’s ticket and identification re-

mained in the possession of the officers throughout

the encounter; the officers also seized and had pos-

session of his luggage. As a practical matter, Royer

could not leave the airport without them.”); id. at 504;

id. at 508 (Powell, J., concurring).

Nothing about the questions that the deputy put to

respondent after returning the license conveyed that

respondent was obliged to answer. Indeed, the deputy

indicated to respondent that even his questioning

would shortly cease. See Pet. App. 2-3 (“One question

before you get gone [sic]; are you carrying any illegal

contraband in your car? Any weapons of any kind,

drugs, anything like that?”). Deputy Newsome also

did not demand that respondent assent to a search of

the car, but instead “requested permission” to do so.

cause based on claim that officer acted out of “pretextual”

motives).

25

Id, at 24. Finally, as the trial court found (id. at

25), the videotape of the episode belied any suggestion

that respondent’s consent was “the product of duress

or coercion.” Rather, “[tJhe manner of inquiry, the

phrasing of the request and the position of the parties

eliminates the suggestion of overbearance by the

officer.” Ibid. Compare Hodari D., 499 U.S. at 625

(no seizure where suspect was subject to neither

application of physical force nor show of authority);

Mendenhall, 446 U.S. at 555 (opinion of Stewart, J.);

' see also Bostick, 501 U.S. at 434 (noting that Court

has “held repeatedly that mere police questioning

does not constitute a seizure”). Indeed, while the

pertinent inquiry is whether a reasonable person, not

the particular motorist, would have felt free to leave

in light of all of the circumstances, respondent him-

self acknowledged that, after the deputy returned the

driver’s license, he felt that he was “free to leave.”

Suppression Hearing Tr. 23, 27.

Under those circumstances, a finding that a rea-

sonable person would not have felt free to leave would

necessarily be based solely on the fact that the

deputy’s questions and request for consent to search

followed a traffic stop and were not preceded by an

express statement that respondent was free to leave.

See Pet. App. 12 (Sweeney, J., dissenting). As we have

explained, the absence of such a statement—while

germane to the issue whether a person, once seized,

continues to be seized—does not alone establish an

ongoing seizure. Nor does the fact that respondent

consented to the search, despite his knowledge that

his car possessed illegal drugs, suggest that his

consent was the product of coercive police conduct.’

Accordingly, the conclusion of the Ohio Supreme

Court that respondent remained seized at the time of

the deputy’s questions should be reversed.

CONCLUSION

The judgment of the Ohio Supreme Court should be

reversed.

Respectfully submitted.

Drew S. Days, III

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney

General

MICHAEL R. DREEBEN

Deputy Solicitor General

PAUL A. ENGELMAYER

Assistant to the Solicitor

General

JOSEPH C. WYDERKO

Attorney

APRIL 1996

® See Bostick, 501 U.S. at 437-438 (rejecting seizure argu-

ment based on claim that no reasonable person “would freely

consent to a search of luggage that he or she knows contains

drugs” and noting that “the ‘reasonable person’ test pre-

supposes an innocent person”); Mendenhall, 446 U.S. at 555

(opinion of Stewart, J.) (“We * * * reject the argument that

the only inference to be drawn from the fact that the respon-

dent acted in a manner so contrary to her self-interest is that

she was compelled to answer the agents’ questions.”).