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State v. Gutierrez7/10/2002
on and insurance documents and engages in any subsequent questioning without further show of authority which would convey a message that the individual is not free to leave. State v. Martinez, 136 Idaho 436, 441, 34 P.3d 1119, 1124 (Ct. App. 2001).
We conclude, based on the totality of the circumstances, that no such evolution from detention to consensual encounter occurred here. First, after learning from dispatch that there were no problems with Cheek's driver's license or registration, and after deciding to issue only a warning for speeding, Bunderson required Cheek to get out of his vehicle before Bunderson handed back the documents or gave the warning. Bunderson never thereafter indicated to Cheek that he could return to his vehicle. Although the practice of requesting a driver to step out of the vehicle during the execution of a traffic stop is lawful, Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6 (1977); State v. Parkinson, 135 Idaho 357, 363, 17 P.3d 301, 307 (Ct. App. 2000), it is also likely that a person who has been directed by an officer to exit a vehicle would not believe that the traffic stop was over until he or she was permitted to return. Without telling Cheek that he was free to leave, Bunderson asked Cheek about alcohol, controlled substances, and weapons. We recognize that the United States Supreme Court has declined to adopt a bright-line rule that would require officers to first say that the motorist is free to leave before a post-traffic stop consent to search could be deemed voluntary. Ohio v. Robinette, 519 U.S. 33 (1996). However, whether the officer said that the motorist was free to leave remains one of the myriad circumstances that courts should examine in determining whether the consent was freely given. See id. at 39-40. Here, Cheek was neither told that he was free to leave nor told that he could re-enter his automobile before Bunderson began posing questions about alcohol, drugs and weapons. In addition, throughout the questioning, the patrol car's overhead lights remained on. This use of the emergency lights was indicative of a continued detention. See I.C. § 49-625 (requiring that drivers stop upon the approach of a police vehicle using emergency lights and remain stopped until the police vehicle has passed or the driver has been otherwise directed by a police officer); I.C. § 49-1404(1) (prohibiting a driver from fleeing or attempting to elude a police vehicle when given a signal to stop by use of the police officer's emergency lights); State v. Mireles, 133 Idaho 690, 692, 991 P.2d 878, 880 (Ct. App. 1999) (holding act of turning on overhead lights, although not necessarily intended to create a detention, constituted a de facto detention commanding the driver to remain stopped); Berkemer v. McCarty, 468 U.S. 420, 436-37 (1984) (noting that "few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so.") Finally, the officer's comments that followed after the speeding warning were not a sociable exchange; the officer engaged in questioning that carried accusatory tenor in its reference to the alleged nervousness of Cheek's passenger, Anthony Gutierrez. The totality of these circumstances would not have led a reasonable motorist to infer that he was free to ignore the officer's questions and drive away.
B. The Questioning Was Not a Permissible Extension of the Traffic Stop
Having concluded that Officer Bunderson's questioning of Cheek after the reason for the traffic stop had been fulfilled was not a consensual encounter but a continuation of the detention, we must examine whether the questioning reasonably extended the duration of the traffic stop or illegally ext
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