Ohio v. Robinette/Dissent Stevens
Justice Stevens, dissenting.
The Court's holding today is narrow: The Federal Constitution does not require that a lawfully seized person be advised that he is "free to go" before his consent to search will be recognized as voluntary. I agree with that holding. Given the Court's reading of the opinion of the Supreme Court of Ohio, I also agree that it is appropriate for the Court to limit its review to answering the sole question presented in the State's certiorari petition.  As I read the state court opinion, however, the prophylactic rule announced in the second syllabus was intended as a guide to the decision of future cases rather than an explanation of the decision in this case. I would therefore affirm the judgment of the Supreme Court of Ohio because it correctly held that respondent's consent to the search of his vehicle was the product of an unlawful detention. Moreover, it is important to emphasize that nothing in the Federal Constitution—or in this Court's opinion—prevents a State from requiring its law enforcement officers to give detained motorists the advice mandated by the Ohio Court.
The relevant facts are undisputed.  Officer Newsome stopped respondent because he was speeding. Neither at the time of the stop nor at any later time prior to the search of respondent's vehicle did the officer have any basis for believing that there were drugs in the car. After ordering respondent to get out of his car, issuing a warning, and returning his driver's license, Newsome took no further action related to the speeding violation. He did, however, state: "One question before you get gone: are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?" Thereafter, he obtained respondent's consent to search the car.
These facts give rise to two questions of law: whether respondent was still being detained when the "one question" was asked, and, if so, whether that detention was unlawful. In my opinion the Ohio Appellate Court and the Ohio Supreme Court correctly answered both of those questions.
The Ohio Supreme Court correctly relied upon United States v. Mendenhall, 446 U.S. 544 (1980),  which stated that "a person has been ‘seized' within the meaning of the Fourth Amendment . . . if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id., at 554 (opinion of Stewart, J.); see Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (noting that "[t]he Court has since embraced this test"). See also Florida v. Bostick, 501 U.S. 429, 435-36 (1991) (applying variant of this approach). The Ohio Court of Appeals applied a similar analysis. See App. to Pet. for Cert. 17-18.
Several circumstances support the Ohio courts' conclusion that a reasonable motorist in respondent's shoes would have believed that he had an obligation to answer the "one question" and that he could not simply walk away from the officer, get back in his car, and drive away. The question itself sought an answer "before you get gone." In addition, the facts that respondent had been detained, had received no advice that he was free to leave, and was then standing in front of a television camera in response to an official command, are all inconsistent with an assumption that he could reasonably believe that he had no duty to respond. The Ohio Supreme Court was surely correct in stating: "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 citizens, and a reasonable person would not feel free to walk away as the officer continues to address him." 73 Ohio St. 3d, at 655, 653 N. E. 2d, at 698. 
Moreover, as an objective matter it is fair to presume that most drivers who have been stopped for speeding are in a hurry to get to their destinations; such drivers have no interest in prolonging the delay occasioned by the stop just to engage in idle conversation with an officer, much less to allow a potentially lengthy search.  I also assume that motorists—even those who are not carrying contraband—have an interest in preserving the privacy of their vehicles and possessions from the prying eyes of a curious stranger. The fact that this particular officer successfully used a similar method of obtaining consent to search roughly 786 times in one year, State v. Retherford, 93 Ohio App. 3d 586, 591-592, 639 N. E. 2d 498, 502, dism'd, 69 Ohio St. 3d 1488, 635 N. E. 2d 43 (1994), indicates that motorists generally respond in a manner that is contrary to their self interest. Repeated decisions by ordinary citizens to surrender that interest cannot satisfactorily be explained on any hypothesis other than an assumption that they believed they had a legal duty to do so.
The Ohio Supreme Court was therefore entirely correct to presume in the first syllabus preceding its opinion that a "continued detention" was at issue here. 73 Ohio St. 3d, at 650, 653 N. E. 2d, at 696.  The Ohio Court of Appeals reached a similar conclusion. In response to the State's contention that Robinette "was free to go" at the time consent was sought, that court held—after reviewing the record—that "a reasonable person in Robinette's position would not believe that the investigative 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." App. to Pet. for Cert. 17-18. As I read the Ohio opinions, these determinations were independent of the bright line rule criticized by the majority.  I see no reason to disturb them.
In the first syllabus the Ohio Supreme Court also answered the question whether the officer's continued detention of respondent was lawful or unlawful. See ante, at 3-4. Although there is a possible ambiguity in the use of the word "motivation" in the Ohio Supreme Court's explanation of why the traffic officer's continued detention of respondent was an illegal seizure, the first syllabus otherwise was a correct statement of the relevant federal rule as well as the relevant Ohio rule. As this Court points out in its opinion, as a matter of federal law the subjective motivation of the officer does not determine the legality of a detention. Because I assume that the learned judges sitting on the Ohio Supreme Court were well aware of this proposition, we should construe the syllabus generously by replacing the ambiguous term "motivation behind" with the term "justification for" in order to make the syllabus unambiguously state the correct rule of federal law. So amended, the controlling proposition of federal law reads:
"When the [justification for] 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 detention is not based on any articulable facts giving rise to a suspicion of some separate illegal activity justifying an extension of the detention, the continued detention constitutes an illegal seizure." 73 Ohio St. 3d, at 650, 653 N. E. 2d, at 696.
Notwithstanding that the subjective motivation for the officer's decision to stop respondent related to drug interdiction, the legality of the stop depended entirely on the fact that respondent was speeding. Of course, "[a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U. S. ___ (1996) (slip op., at 3). As noted above, however, by the time Robinette was asked for consent to search his automobile, the lawful traffic stop had come to an end; Robinette had been given his warning, and the speeding violation provided no further justification for detention. The continued detention was therefore only justifiable, if at all, on some other grounds. 
At no time prior to the search of respondent's vehicle did any articulable facts give rise to a reasonable suspicion of some separate illegal activity that would justify further detention. See United States v. Sharpe, 470 U.S. 675, 682 (1985); United States v. Brignoni-Ponce, 422 U.S. 873, 881-882 (1975); Terry v. Ohio, 392 U.S. 1, 21 (1968). As an objective matter, it inexorably follows that when the officer had completed his task of either arresting or reprimanding the driver of the speeding car, his continued detention of that person constituted an illegal seizure. This holding by the Ohio Supreme Court is entirely consistent with federal law. 
The proper disposition follows as an application of well settled law. We held in Florida v. Royer, 460 U.S. 491 (1983), that a consent obtained during an illegal detention is ordinarily ineffective to justify an otherwise invalid search.  See also Florida v. Bostick, 501 U.S. 429, 433-434 (1991) (noting that if consent was given during the course of an unlawful seizure, the results of the search "must be suppressed as tainted fruit"); Dunaway v. New York, 442 U.S. 200, 218-219 (1979); Brown v. Illinois, 422 U.S. 590, 601-602 (1975). Cf. Wong Sun v. United States, 371 U.S. 471 (1963). Because Robinette's consent to the search was the product of an unlawful detention, "the consent was tainted by the illegality and was ineffective to justify the search." Royer, 460 U. S., at 507-508 (plurality opinion). I would therefore affirm the judgment below.
A point correctly raised by Justice Ginsburg merits emphasis. The Court's opinion today does not address either the wisdom of the rule announced in the second syllabus preceding the Ohio Supreme Court's opinion, or the validity of that rule as a matter of Ohio law. Nevertheless the risk that the narrowness of the Court's holding may not be fully understood prompts these additional words.
There is no rule of federal law that precludes Ohio from requiring its police officers to give its citizens warnings that will help them to understand whether a valid traffic stop has come to an end, and will help judges to decide whether a reasonable person would have felt free to leave under the circumstances at issue in any given case.  Nor, as I have previously observed, is there anything "in the Federal Constitution that prohibits a State from giving lawmaking power to its courts." Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 479, and n. 3 (1981) (dissenting opinion). Thus, as far as we are concerned, whether Ohio acts through one branch of its government or another, it has the same power to enforce a warning rule as other States that may adopt such rules by executive action. 
Moreover, while I recognize that warning rules provide benefits to the law enforcement profession and the courts, as well as to the public, I agree that it is not our function to pass judgment on the wisdom of such rules. Accordingly, while I have concluded that the judgment of the Supreme Court of Ohio should be affirmed, and thus dissent from this Court's disposition of the case, I am in full accord with its conclusion that the Federal Constitution neither mandates nor prohibits the warnings prescribed by the Ohio Court. Whether such a practice should be followed in Ohio is a matter for Ohio lawmakers to decide.
^ . "Whether the Fourth Amendment to the United States Constitution requires police officers to inform motorists, lawfully stopped for traffic violations, that the legal detention has concluded before any subsequent interrogation or search will be found to be consensual?" Pet. for Cert. i.
^ . This is in part because crucial portions of the exchange were videotaped; this recording is a part of the record.
^ . See 73 Ohio St. 3d 650, 654, 653 N. E. 2d 695, 698 (1995).
^ . A learned commentator has expressed agreement on this point. See 4 W. LaFave, Search and Seizure § 9.3(a), p. 112 (3d ed. 1996 and Supp. 1997) ("Given the fact that [defendant] quite clearly had been seized when his car was pulled over, the return of the credentials hardly manifests a change in status when it was immediately followed by interrogation concerning other criminal activity"); see also ibid. (approving of Ohio Supreme Court's analysis in this case). We have indicated as much ourselves in the past. See Berkemer v. McCarty, 468 U.S. 420, 436 (1984) ("Certainly 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").
^ . Though this search does not appear to have been particularly intrusive, that may not always be so. See Brief for American Civil Liberties Union et al. as Amici Curiae 28-29. Indeed, our holding in Florida v. Jimeno, 500 U.S. 248 (1991), allowing police to open closed containers in the context of an automobile consent search where the "consent would reasonably be understood to extend to a particular container," id., at 252, ensures that many motorists will wind up "consenting" to a far broader search than they might have imagined. See id., at 254-255 ("only objection that the police could have to" a rule requiring police to seek consent to search containers as well as the automobile itself "is that it would prevent them from exploiting the ignorance of a citizen who simply did not anticipate that his consent to search the car would be understood to authorize the police to rummage through his packages") (Marshall, J., dissenting).
^ . It is ordinarily the syllabus that precedes an Ohio Supreme Court opinion, rather than the opinion itself, that states the law of the case. Cassidy v. Glossip, 12 Ohio St. 2d 17, 24, 231 N. E. 2d 64, 68 (1967); see Migra v. Warren City School Dist. Bd. of Ed., 465 U.S. 75, 86, n. 8 (1984); Ohio v. Gallagher, 425 U.S. 257, 259 (1976).
^ . Indeed, the first paragraph of the Ohio Supreme Court's opinion clearly indicates that the bright line rule was meant to apply only in future cases. The Ohio Supreme Court first explained: "We find that the search was invalid since it was the product of an unlawful seizure." 73 Ohio St. 3d., at 652, 653 N. E. 2d, at 697. Only then did the court proceed to point out that it would "also use this case to establish a bright line test . . . ." Ibid.
^ . Cf. Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion) ("[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop"); United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975) ("stop and inquiry must be ‘reasonably related in scope to the justification for their initiation' " (quoting Terry v. Ohio, 392 U.S. 1, 29 (1968)).
^ . Since "this Court reviews judgments, not opinions," Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984), the Ohio Supreme Court's holding that Robinette's continued seizure was illegal on these grounds provides a sufficient basis for affirming its judgment.
^ . Writing for a plurality of the Court, Justice White explained that "statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will." 460 U. S., at 501. The defendant in Royer had been "illegally detained when he consented to the search." Id., at 507. As a result, the plurality agreed "that the consent was tainted by the illegality and was ineffective to justify the search." Id., at 507-508. Concurring in the result, Justice Brennan agreed with this much of the plurality's decision, diverging on other grounds. See id., at 509. Justice Brennan's agreement on that narrow principle represents the holding of the Court. See Marks v. United States, 430 U.S. 188, 193 (1977).
^ . Indeed, we indicated in Florida v. Bostick, 501 U.S. 429, 437 (1991), that the fact a defendant had been explicitly advised that he could refuse to give consent was relevant to the question whether he was seized at the time consent was sought. And, in other cases we have stressed the importance of similar advice as a circumstance supporting the conclusion that a consent to search was voluntary. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); United States v. Mendenhall, 446 U.S. 544, 558-559 (1980). Cf. Washington v. Chrisman, 455 U.S. 1, 9 (1982) (consent to search was voluntary where defendant "consented, in writing, . . . after being advised that his consent must be voluntary and that he had an absolute right to refuse consent").
^ . As we are informed by a brief amicus curiae filed by Americans For Effective Law Enforcement, Inc.: "Such a warning may be good police practice, and indeed amicus knows that many law enforcement agencies among our constituents have routinely incorporated a warning into their Fourth Amendment consent forms that they use in the field, but it is precisely that—a practice and not a constitutional imperative. An officer who includes such a warning in his request for consent undoubtedly presents a stronger case for a finding of voluntariness in a suppression hearing, and we would not suggest that such agencies and officers do otherwise. We know, too, that instructors in many police training programs of leading universities and management institutes routinely recommend such warnings as a sound practice, likely to bolster the voluntariness of a consent to search. [We ourselves] conduct law enforcement training programs at the national level and many of our own speakers have made this very point." Brief for Americans For Effective Law Enforcement, Inc., as Amicus Curiae 7.