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If You Consent to a Search of Your Car When You’re in Custody Af
Mr. Sole was going 95 MPH on the interstate. A state trooper stopped him and smelled marijuana when Sole rolled down his window. The trooper directed him to sit in the cruiser. Once there, Sole was told trooper would give him “a break” and cite him to court instead of arresting him.
Trooper wrote out the citation. He then told Sole he wouldn’t be released until trooper determined if there was anything illegal in the car. Sole asked if he had to permit a search. The trooper said he had to, but if there was just a little bit “he could deal with it.” Sole then handed over a small amount of marijuana he had in his pocket. Trooper then asked Sole to consent to search the car. Trooper produced a consent form. He told Sole he didn’t have to consent, (“the choice is totally up to you”) but if he didn’t, the trooper would get a warrant which would necessitate a long delay. Sole consented to the search.
The search revealed marijuana and cocaine in a passenger’s backpack. Sole plead guilty conditioned on the Supreme Court upholding the legality of the search. He argued that trooper’s asking about marijuana in the car was a violation of Miranda because he was in custody and hadn’t been read his rights. Therefore the search came about because of what the trooper learned in an unconstitutional interrogation. The search was thus “fruit of the poisoned tree” and the results should be suppressed.
The Supreme Court agreed with the first point. It held that ordinarily a person placed in the cruiser while a routine traffic stop is processed is not in custody because speeding is an “arrest free” civil offense, so no Miranda warnings are required. However, when the trooper started questioning about marijuana and said Sole could not leave until the trooper was satisfied about that, Sole was in custody. Therefore, Miranda applied and anything Sole said to the trooper, and the marijuana that was produced, could not be used in evidence to convict Sole.
Sole didn’t fare so well with the “fruit of the poisoned tree” argument. The Court found the trooper did not force Sole to consent to the search. He was repeatedly told the choice to consent or have a delay while the trooper sought a warrant was “totally up” to Sole. Mere custody, the court said, did not taint the consent. The conviction was upheld. Another fine line search and seizure case. State v. Sole 2009 VT 24.
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