State of Iowa v. Bounmy Bounmy ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 15-2225
Filed February 8, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BOUNMY BOUNMY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, Gary E. Wenell
(trial and sentencing) and Jeffrey L. Poulson (motion to suppress), Judges.
A defendant challenges the traffic stop leading to her convictions for
possession of a controlled substance and failure to affix a drug tax stamp.
REVERSED AND REMANDED.
Rees C. Douglas, Sioux City, for appellant.
Thomas J. Miller, Attorney General, and Elisabeth S. Reynoldson,
Assistant Attorney General, for appellee.
Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
2
TABOR, Judge.
Bounmy Bounmy appeals her convictions for possession of
methamphetamine and failure to affix a drug tax stamp. She disputes the district
court’s denial of her motion to suppress on four grounds: (1) the traffic stop
lacked probable cause, (2) the stop was impermissibly pretextual, (3) the deputy
unlawfully expanded the scope of the stop, and (4) the deputy did not obtain valid
consent for the additional investigation. From our de novo review, we conclude
the State did not meet its burden of showing individualized suspicion to justify
prolonging the stop beyond its traffic-related mission—either to ask additional
questions or to “escort” the passenger to the patrol car before conducting a dog
sniff. Because the outcome here is controlled by In re Pardee, 872 N.W.2d 384,
391 (Iowa 2015),1 we reverse the denial of Bounmy’s motion to suppress and
remand for further proceedings.
I. Facts and Prior Proceedings
In the early hours of April 21, 2015, Deputy Sheriff Matt Struve received a
phone call from fellow Plymouth County Deputy Scott Dorhout, who had fielded a
request from an O’Brien County deputy to keep a lookout for a vehicle travelling
southbound toward Sioux City. The car was “coming from a known drug house”
in O’Brien County, according to the lookout request. Deputy Struve, who was
part of the K-9 unit, joined Deputy Dorhout at an interchange on Highway 60/75
so the two could watch for that car and relay any information they acquired about
its occupants to the O’Brien County Sheriff’s Office.
1
The district court issued its suppression rulings in June 2015. Our supreme court did
not issue its opinion in Pardee until December 11, 2015. Accordingly, the district court
did not have the benefit of reading Pardee when analyzing the suppression motion.
3
Eventually, the deputies spotted a tan Honda Accord, which they believed
fit the description2 from O’Brien County, and began to follow it. At first, the
Accord was travelling well below the posted common speed limit—fifty-five miles
per hour in a sixty-five-mile-per-hour zone. But when the Accord passed through
Hinton, the deputies determined the driver was speeding. Deputy Struve
explained:
[T]he speed limit drops to [fifty-five], [forty-five], [thirty-five]. In the
[forty-five] mile per hour zone, I observed the vehicle going [forty-
five] miles per hour. In the [thirty-five] mile per hour zone, I
observed the vehicle[] going about [thirty-nine] miles per hour and
then dropped down to [thirty-eight] miles per hour. At that time I
proceeded to stop the vehicle.
As Deputy Struve approached the car, he saw a male driver, a male passenger
in the front seat, and a female passenger in the back seat. He requested the
driver’s license, vehicle registration, and proof of insurance, which the driver
provided after Bounmy, who was the backseat passenger, told the driver where
the documents were kept.
The deputy then took the driver back to the patrol car to write a warning
for the speeding violation and to ask questions of the driver, a practice the deputy
routinely employed when conducting a traffic stop. Deputy Struve also ran a
check on the vehicle’s registration and a check for outstanding warrants on the
driver. In response to Deputy Struve’s questions, the driver said he and the
passengers had left Sioux City for a hospital “in the Spencer area” around
midnight and were headed back to Sioux City, taking the same route home. But
the driver didn’t know the name of the person they had been visiting or “exactly
2
Our record does not disclose how detailed a vehicle description the Plymouth County
deputies received from O’Brien County.
4
where the hospital was.” Nor did the driver know the last name of the passenger
sitting next to him in the Accord. During their conversation, Deputy Struve
noticed the driver had some difficulty speaking English, but he believed the driver
was generally able to understand.3
After Deputy Struve and the driver returned to the Accord, the deputy had
a conversation with Bounmy. He did so because sometimes the passengers in a
vehicle will give “inconsistent stories.” Deputy Struve found Bounmy’s story
varied slightly from what the driver had told him. Bounmy estimated they left
Sioux City around 10:30 that night, she said they visited locations in addition to
the Spencer hospital, and she described getting lost in Sanborn, a town in
O’Brien County, on their way home. Bounmy told Deputy Struve they were
travelling back home that night because the driver worked in the morning, but
when the deputy asked her what time he had to work, she said he didn’t work
until the afternoon.
Around this time, Deputy Struve issued a speed warning to the driver and
told him he was free to leave. But then the deputy asked if the driver “would
mind sticking around for a few additional questions.” Apparently
misunderstanding Deputy Struve’s question, the driver responded he didn’t have
any additional questions. Deputy Struve clarified: “No, no. I have some
questions for you. Would you mind sticking around and answering a few more
questions?” According to the deputy, the driver told him he understood and
agreed to continue speaking to him.4
3
The record shows the driver and Bounmy are native Laotian speakers.
4
The driver did not testify at the suppression hearing or at trial.
5
At the suppression hearing, Deputy Struve synthesized his suspicions
developed during the traffic stop:
A. I was suspicious there was criminal activity due to the
fact that the driver didn’t know the passenger’s last name. Knew
the first name, didn’t know the last name. The direction of travel,
the times that they had left, nothing was adding up to the times they
should have been at the hospital and came back home from the
hospital. The time he had to work the next day was actually not in
the morning. It was in the afternoon. And there—there was time in
there where I could sense some nervousness.
Q. How about the fact that you’d been told by other law
enforcement officers this vehicle had just left a drug house? A.
And the fact that I’d been notified by O’Brien County.
Q. Any suspicion of a particular controlled substance you
thought was involved in this stop? A. At this point I . . . did not
know what was involved within the stop.
Deputy Struve directed everyone to exit the Accord so he could conduct a
dog sniff for narcotics. According to the deputy, when he asked the driver “if he
would mind if I walked my dog around the vehicle,” the driver “became very
nervous and started kind of stumbling. He couldn’t really understand what I was
trying to say anymore.” Deputy Struve then asked Bounmy to assist in
communicating with the driver. When the deputy asked Bounmy—who had been
“friendly” and “willing to answer questions” up until that point—if there was
anything illegal in the vehicle, “[s]he became nervous” and was “escorted to
Deputy Dorhout’s car.”
As Bounmy was “being escorted,” Deputy Struve saw her make “a quick
movement . . . out of the corner of my eye. And when I turned around, I noticed
that there was a baggie of white crystal-like substance . . . on the ground which I
had not seen prior to her being right there.” A field test indicated the substance
was methamphetamine. When questioned about the baggie, Bounmy initially
6
denied it was hers, stating “she was an old lady and . . . does not do that.” But
moments later she claimed ownership of the methamphetamine. Then Deputy
Struve walked his dog around the Accord, but the dog did not alert. He searched
the car and found a glass pipe in the back where Bounmy had been seated.
Deputy Struve arrested Bounmy. At the jail, a corrections officer recovered an
additional package of methamphetamine from Bounmy’s bra.
The State charged Bounmy by trial information with two counts of
possession of a controlled substance, in violation of Iowa Code section
124.401(5) (2015), two counts of failure to affix a drug tax stamp while being a
habitual felon, in violation of Iowa Code sections 453B.3 and 453B.12, and one
count of possession of contraband while being a habitual felon, in violation of
Iowa Code section 719.7. Bounmy filed a motion to suppress the evidence
obtained as a result of the traffic stop; the motion alleged the deputy did not
obtain consent for a dog sniff.
Following a hearing, the district court overruled Bounmy’s motion,
reasoning: “[T]he stop was not unreasonable as the driver was speeding. During
the traffic stop, a baggie containing contraband was found next to the defendant,
as such there was no search.” In response to Bounmy’s motion to enlarge, the
court elaborated:
As the traffic stop was valid, it was not pretextual. . . .
Deputy Struve testified that after writing a warning, he
advised the driver that he was free to go and asked if he would be
willing to answer additional questions. At this point, the driver
expressed difficulty understanding English and requested
[Bounmy], who was a passenger in the backseat, and who had
better English skills, to come to the car to assist him. In connection
with [Bounmy] coming to the patrol car, the illegal drugs were found
in plain view. Under the facts of this case, the officer did not
7
unlawfully expand [Bounmy’s] seizure for investigation unrelated to
the purpose of the stop. . . .
The Court finds that the driver requested [Bounmy’s]
assistance for purposes of translating the conversation with the
officer. The Court finds that this constitutes free and voluntary
consent.
The matter proceeded to a bench trial, and the court found Bounmy guilty
of one count of possession of a controlled substance and one count of failure to
affix a drug tax stamp. Bounmy now appeals.
II. Scope and Standard of Review
Bounmy argues the district court should have granted her motion to
suppress on federal and state constitutional grounds. Accordingly, our review is
de novo. See State v. Baldon, 829 N.W.2d 785, 789 (Iowa 2013). We
independently evaluate the totality of the circumstances as demonstrated by the
entire record. See id. We consider both the evidence presented at the
suppression hearing as well as the evidence presented at trial. See State v.
Carter, 696 N.W.2d 31, 36 (Iowa 2005). “[W]e give deference to the factual
findings of the district court due to its opportunity to evaluate the credibility of the
witnesses but are not bound by such findings.” State v. Lane, 726 N.W.2d 371,
377 (Iowa 2007).
III. Analysis
A. Was the traffic stop supported by probable cause?
Citing State v. Tague, 676 N.W.2d 197, 203–04 (Iowa 2004), Bounmy
argues the “single incident” of speeding observed by Deputy Struve was not
sufficient to constitute probable cause for the traffic stop.5 She contends: “[The]
5
Bounmy does not challenge the accuracy of Deputy Struve’s speed determination.
8
driver was bringing the vehicle’s speed down and had previously held the speed
down consistently. There were no other concerns about the vehicle or about the
driving.”
We find Deputy Struve had probable cause to stop the Accord based on
the speed violation. Probable cause occurs when the totality of the
circumstances as viewed by a reasonable person would lead that person to
believe: (1) a crime has been or is being committed and (2) the arrestee
committed or is committing it. Tague, 676 N.W.2d at 201. “When a peace officer
observes a violation of our traffic laws, however minor, the officer has probable
cause to stop a motorist.” Id.; see also State v. Predka, 555 N.W.2d 202, 206
(Iowa 1996) (finding officer who observed defendant driving five miles over the
speed limit had probable cause to stop).
Bounmy reads Tague too broadly. In Tague, the court found a driver’s
“single incident of crossing the edge line [of the road] for a brief moment . . . did
not give the police probable cause to stop Tague for a traffic violation under
section 321.306.” 676 N.W.2d at 204. But this finding was based upon the
court’s interpretation of Iowa Code section 321.306 (2001), which provided: “A
vehicle shall be driven as nearly as practical entirely within a single lane and
shall not be moved from such lane until the driver has first ascertained that such
movement can be made with safety.” Id. at 203. The court reasoned a violation
of this statute “does not occur unless the driver changes lanes before the driver
ascertains that he or she could make such movement with safety” and concluded
that because the movement over the line was brief, the roadway was devoid of
other traffic, and the officer did not observe the vehicle making any other erratic
9
movements, the State did not prove Tague violated section 321.306. See id. at
203–04.
By contrast, Deputy Struve did observe a traffic violation—a vehicle
travelling four miles per hour over the speed limit. Under Iowa Code section
321.285(7) (2015), a person who drives at an “excessive speed in violation of a
speed limit commits a simple misdemeanor.” While section 321.306 allows a
driver to move outside of a lane when it is safe to do so, section 321.285(7)
provides a driver no comparable discretion to travel above the posted speed limit.
Accordingly, the Accord’s speed gave Deputy Struve probable cause to initiate a
traffic stop.
B. Was the traffic stop impermissibly pretextual?
Bounmy next argues the stop was pretextual. She compares the deputies’
subjective reason for following the Accord (possible drug possession) with the
articulated reason for the stop (speeding). Bounmy asserts the objective reason
is suspect since the vehicle “was decelerating to comply with a speed limit.” She
acknowledges a pretextual stop is permissible under the Federal Constitution,
see Whren v. United States, 517 U.S. 806, 812–16 (1996), but, citing authority
from Washington and New Mexico, urges us to ban pretextual stops under the
Iowa Constitution. The State contends we should continue to adhere to the
objective federal approach and argues the alternative forwarded by Bounmy
would be fraught with “evidentiary and practical problems.”
10
Recognizing her argument seeks a change in Iowa’s approach to
pretextual stops, Bounmy asked the supreme court to retain her appeal.6 But the
supreme court transferred the case to us. “We are not at liberty to overturn Iowa
Supreme Court precedent.” State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct.
App. 1990). We are bound by Kreps, where the court held the test for traffic
stops is objective. 650 N.W.2d at 641; see also Harrison, 846 N.W.2d at 366
(majority opinion) (citing Kreps with approval).
C. Did the deputy impermissibly prolong the stop?
Having determined Deputy Struve was justified in stopping the Accord
based on the driver exceeding the speed limit, we turn to Bounmy’s claim that the
drug evidence should have been suppressed because the deputy unreasonably
prolonged the traffic stop in violation of the Fourth Amendment. We examine the
deputy’s authority for the continued seizure of passenger Bounmy under the
framework set out in Rodriguez v. United States, 135 S. Ct. 1609, 1614–16
(2015) and Pardee, 872 N.W.2d at 391.
Rodriguez holds “the tolerable duration of police inquiries in the traffic-stop
context is determined by the seizure’s ‘mission’—to address the traffic violation
that warranted the stop and attend to related safety concerns.” 135 S. Ct. at
1614 (citation omitted). Beyond deciding whether to issue a citation, an officer
6
At oral argument, Bounmy’s counsel asserted the validity of pretextual stops under the
Iowa Constitution is an open question. See State v. Harrison, 846 N.W.2d 362, 371
(Iowa 2014) (Appel, J., dissenting) (“This issue of whether Whren is good law under the
Iowa Constitution when a traffic stop is based on pretext, however, was not raised by
Harrison and we do not address it today.”). Although our supreme court has not
specifically considered whether to depart from Whren under article I, section 8 of our
state constitution, the court has previously applied an objective approach to determine
the validity of a traffic stop under the search-and-seizure clauses of both constitutions.
See State v. Kreps, 650 N.W.2d 636, 640–41 (Iowa 2002) (stating the court “usually
deem[s] the two provisions to be identical in scope, import, and purpose”).
11
may make “ordinary inquiries” incident to the traffic stop, including checking the
driver’s license, determining whether the driver has outstanding warrants, and
inspecting the car’s registration and proof of insurance. Id. at 1615. Unrelated
investigations may be tolerated by the Fourth Amendment only if they do not
lengthen the roadside detention. Id. at 1614. The Rodriguez court decided a
dog sniff was not an ordinary inquiry related to the purpose of the traffic stop but,
rather, was a measure aimed at detecting criminal wrongdoing outside the traffic
stop’s mission. Id. at 1615. In considering the propriety of a dog sniff, the court
opined an officer may not extend an otherwise completed traffic stop without
independent reasonable suspicion. Id. at 1615–16.
Applying Rodriguez, our supreme court found a roadside dog sniff
impermissible when the state trooper “developed reasonable suspicion of other
criminal activity—if at all—only by prolonging the initial stop beyond the time
reasonably necessary to execute the traffic violation warnings.” Pardee, 872
N.W.2d at 391. In that case, the State argued the nervousness and “somewhat
inconsistent travel plans” expressed by passenger Pardee and the car’s driver
justified their continued detention by the trooper. Id. at 393. The Pardee majority
rejected the State’s argument, concluding the trooper’s “blending” of questions
about the traffic stop with unrelated drug-interdiction inquiries impermissibly
prolonged the stop. Id. at 396–97.
Bounmy compares her situation to Rodriguez and Pardee, contending
Deputy Struve unlawfully extended the speeding stop by questioning her and the
driver concerning where they had been earlier that night and where they were
12
going that morning—inquiries unrelated to the mission of the stop for speeding.
On appeal, Bounmy asserts:
It is abundantly clear that without questions that prolonged the stop
past the point where he issued the warning citation Deputy Struve
did not have grounds for reasonable suspicion to support a dog
sniff, search of the car, or detention of the passengers. It was this
detention that led to Ms. Bounmy’s arrest, because without the
detention she would have been on her way.
In response, the State asserts Deputy Struve had reasonable suspicion to
engage the driver in conversation because the Plymouth County deputies
received information the vehicle had “just left” a residence known to be involved
in the use or distribution of controlled substances.7 If the information concerning
the Accord’s association with the O’Brien County “drug house” did not amount to
reasonable suspicion to initiate an investigatory stop, that same information—
unenhanced by the deputies’ observations8 during his interaction with the
7
But the State does not argue Deputy Struve had independent reasonable suspicion of
a drug-related offense to justify the traffic stop itself. Indeed, the record would not
support such an argument. The deputy testified only that the suspect vehicle was
coming from a “known drug house” that had been under surveillance and was travelling
toward Sioux City. The deputy did not explain how long the house had been under
surveillance and did not know the identity of the primary investigators. Other
jurisdictions have determined that presence at a drug house—standing alone—is
insufficient to support reasonable suspicion. See, e.g., United States v. Spears, 636
Fed. App’x 893, 899 (5th Cir. 2016) (comparing visiting a house linked to drug activity to
leaving a high-crime area); State v. Hopper, 666 S.E.2d 735, 737 (Ga. Ct. App. 2008)
(finding stop not supported by reasonable suspicion where defendant “went into a
suspected drug house in the middle of the afternoon, stayed for a few minutes, and then
he left and drove away”); State v. Rutledge, 260 P.3d 532, 536 (Or. Ct. App. 2011)
(finding officer had no reasonable suspicion to seize passenger who “had just left a
motel that the police believed was involved in drug activity, was in a car with a person
suspected of drug activity, and acted nervously”); see also Utah v. Strieff, 136 S. Ct.
2056, 2062 (2016) (assuming without deciding, because it was conceded by the State,
officer lacked reasonable suspicion to initially stop defendant after he had left suspected
drug house).
8
Our court recently held the observations by an officer trained in drug recognition that
the driver’s pupils were dilated, indicating she was driving under the influence, gave him
reasonable suspicion to expand a traffic stop. State v. Snow, No. 15-0929, 2016 WL
4801353, at *3 (Iowa Ct. App. Sept. 14, 2016).
13
driver—cannot form reasonable suspicion to prolong the traffic stop beyond the
purpose of issuing the speed warning. See Pardee, 872 N.W.2d at 393–95
(declining to find trooper developed reasonable suspicion of criminal activity
during roadside encounter with a passenger and driver based on nervousness,
lived-in look of car, and odor of air freshener).
In addition to the drug-house connection, the State cites the vagueness of
the driver’s description of their itinerary, the inconsistencies between his
description and Bounmy’s version of the trip, and the “unusual” demeanor of both
the driver and Bounmy—as noted by Deputy Struve. But the State also
recognizes “in Pardee, the Iowa Supreme Court found similar factors to be
insufficient to create reasonable suspicion.” See id. at 395–97. The State
submits the Pardee majority “wrongly analyzed the reasonable suspicion issue”
and lobbies for adoption of “the dissenting opinion in that case.” See id. at 397–
99 (Cady, J., dissenting).
Because the supreme court transferred this case to our court, the Pardee
majority opinion is binding precedent. Under Pardee, the authority for seizing
Bounmy (as well as the driver) ended “when tasks tied to the traffic infraction”
were—or reasonably should have been—completed. See id. at 392 (majority
opinion) (quoting Rodriguez, 135 S. Ct. at 1614). The tasks tied to the speeding
violation included those “ordinary inquiries” conducted by Deputy Struve,
including running the driver’s license and registration and checking for warrants.
By contrast, the deputy’s interviews with the driver and Bounmy to compare their
travel plans were linked to the drug interdiction and not the speed warning. As
was the case in Pardee, the deputy could have completed the process of warning
14
the driver about his speed without the separate investigative questioning. See id.
at 396. By engaging in that questioning, Deputy Struve prolonged the traffic
stop.9
The next question under Pardee is whether individualized suspicion would
have existed to “escort” Bounmy from the Accord before undertaking the dog
sniff without the delay created by the deputy’s questioning of the driver and
Bounmy that was unrelated to the speed warning. Id. at 396–97. The deputy’s
suspicions were raised because the driver could not recollect exactly where he
had been, who he had been visiting at the hospital, or his passenger’s last name.
The deputy also felt the driver was “flustered” at times.10 In addition to the
driver’s answers, the deputy was armed with the information from O’Brien County
that a similar vehicle had been seen leaving a “known drug house.”
The facts developed during the deputy’s routine questioning of the driver
did not lead to reasonable suspicion that the driver or passengers were
committing a drug-related offense. Subjectively, Deputy Struve could not
articulate particularized suspicion at that juncture in the traffic stop. At the
suppression hearing, the prosecutor asked the deputy how he assessed the
situation after filling out the speed warning and deciding to question Bounmy:
Q. So what was the . . . suspicion you had at that point?
A. Suspicion I had when I talked to Ms. Bounmy?
9
It is unclear whether the deputy actually issued the warning after filling it out while
speaking to the driver or if he waited until after speaking with Bounmy. Because the
deputy should have concluded the traffic stop after writing the warning in his patrol car,
we consider that point—before he interviewed Bounmy—to be the end of the traffic-
related portion of the stop. See Rodriguez, 135 S. Ct. at 1614.
10
The driver’s nervousness is of limited significance. See Pardee, 872 N.W.2d at 394.
15
Q. When you go back to the vehicle to talk to Ms. Bounmy.
A. This is just something I usually conduct. I try to have a
conversation with everybody in the vehicle.
We conclude the deputy’s basis for believing Bounmy and the driver were
involved in other criminal activity before Bounmy was “escorted” toward the patrol
car—viewed objectively—did not rise to the level of reasonable suspicion, which
is probably why Deputy Struve told the driver they were free to leave even after
posing questions unrelated to the mission of the stop. See id. at 394 (“On the
whole, one can fairly say the grounds for suspecting Saccento and Pardee of
other criminal activity before they were detained for the dog sniff were not that
strong. That probably explains why Trooper Vander Weil said they were free to
go.”). Accordingly, we reach the same result as the majority did in Pardee.
Because Deputy Struve lacked reasonable suspicion to prolong the traffic stop,
we find the evidence he obtained as a result of Bounmy’s continued detention
should have been suppressed.11
D. Did the driver consent to the deputy’s additional investigation?
In addressing Bounmy’s motion to enlarge the suppression ruling, the
district court decided the driver gave voluntary consent to additional questions
from the deputy after being told he was free to go, justifying Bounmy’s continued
11
The district court decided in its original suppression ruling that the methamphetamine
discarded on the ground by Bounmy was not found as the result of a search. But the
State does not argue abandonment or plain view as grounds for upholding the ruling on
appeal. Accordingly, we do not consider those warrant exceptions in our analysis. Even
if they had been argued, we believe the constitutional violation occurred at the moment
the deputy prolonged the traffic stop beyond its permissible length. Accordingly, the
information and evidence the deputy obtained while Bounmy was illegally detained is
inadmissible. See Pardee, 872 N.W.2d at 397 (finding information obtained after the
permissible end of the traffic stop could not be used to support reasonable suspicion); cf.
State v. McGrane, 733 N.W.2d 671, 680 (Iowa 2007) (“For the plain view exception to
apply, police must be rightfully in the place that allows them to make the observation.”
(citation omitted)).
16
detention. The State bears the burden of showing consent was freely and
voluntarily given under the totality of circumstances. See Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973); see also State v. Lane, 726 N.W.2d at
378 (describing two-part test for determining validity of consent: voluntariness
and lack of exploitation of the prior illegality under the fruit-of-the-poisonous-tree
doctrine). A traffic stop on a public road is an “inherently coercive” setting,
making it more “likely that a citizen would not feel free to decline to give consent.”
See State v. Pals, 805 N.W.2d 767, 783 (Iowa 2011).
The interplay between impermissibly prolonging a traffic stop and seeking
consent to conduct further investigation (either by additional interrogation or a
dog sniff) was not fully explored in Rodriguez or Pardee. In Rodriguez, the driver
refused consent for the dog sniff at issue. 135 S. Ct. at 1613. In Pardee, the
trooper told the driver he was free to go, and then asked if he would consent to
answering more questions, which the driver did. 872 N.W.2d at 388. But the
driver in Pardee did not agree to wait for the narcotics dog because “he wanted
to get going.” Id. The trooper then detained the car’s occupants and conducted
the dog sniff without the driver’s consent. Id. Despite the driver’s consent to
answer more questions, the Pardee majority found the trooper could not rely on
those answers, or information obtained earlier during the unnecessary expansion
of the stop, to establish reasonable suspicion for the dog sniff. Id. at 397.
On appeal, Bounmy argues her continued detention that led to the
discovery of the drugs was not supported by valid consent. Bounmy points to
language and cultural barriers preventing the State from meeting its burden to
show the driver voluntarily agreed to answer questions from the deputy not
17
related to the traffic stop. Bounmy also asserts Deputy Struve admitted he did
not receive permission to conduct the dog sniff.
The State contends the record does not support Bounmey’s assertion that
limited English skills or cultural misperceptions by Bounmy or the driver
prohibited a finding of consent. The State argues the totality of the
circumstances show the deputy’s encounter with the driver was not coercive. 12
We need not settle the parties’ debate concerning the voluntariness of the
driver’s consent to additional questioning. When the deputy told the driver he
was free to go and then asked permission to make more inquiries, the stop had
already been impermissibly prolonged by the deputy’s quizzing of both the driver
and Bounmy on the topic of their travel plans—a line of questioning unrelated to
issuing the speed warning. The driver and Bounmy had already been subjected
to illegal detention in violation of the Fourth Amendment.
Consequently, any consent given by the driver to extend the length of the
traffic stop was tainted by the prior illegal detention. See Lane, 726 N.W.2d at
378 (clarifying that evidence obtained by purported consent should be held
admissible only if it is determined that the consent was both voluntary and not an
exploitation of the prior illegality). Under Lane, we do not treat the driver’s
consent as an alternative means by which the police may obtain evidence but,
rather, the consent is treated as evidence sought to be excluded. Id. at 381.
Here, the driver’s consent to answer additional questions was obtained by
exploiting the illegal detention immediately preceding Deputy’s Struve’s request.
12
The State did not argue in the district court or in the appellee’s brief that Bounmy
lacked standing to challenge the validity of the driver’s consent.
18
See id. at 383 (applying three main factors in exploitation analysis: temporal
proximity, intervening circumstances, and purpose of official misconduct); see
also Pals, 805 N.W.2d at 784 (finding no break between illegal action and
consent to search vehicle). Allowing the deputy to use the driver’s consent to
justify “escorting” Bounmy to the place where the drugs were discovered would
ratify the deputy’s prolonging of the traffic stop without reasonable suspicion to
do so. Accordingly, we reject the district court’s reliance on the driver’s consent
in denying the motion to suppress.
Because the deputy did not have reasonable suspicion to prolong the
traffic stop, all evidence flowing from the stop is inadmissible. We reverse the
suppression ruling and remand for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.