Can police continue to ask for consent if the person is not giving an answer?
This question comes from an officer in Minnesota. He says: say I’m looking for consent to search a motor vehicle. I ask the person if they would allow me to search their car. They beat around the bush, change the subject. Could police continue to ask the question until a yes or no is received, or does this have to be taken as an implied denial of consent?
It’s a very good question. Here’s my answer.
The problem is Rodriguez
If you are asking for consent during a traffic stop and you do not have reasonable suspicion of criminal activity, you’re just asking because you have a hunch, then this is problematic.
It’s problematic because it seems to violate the principles outlined in Rodriguez, the Supreme Court case saying you have to focus on the mission of the traffic stop and you can’t go off mission if it extends time.
Now, asking for consent we know is okay. There’s no Supreme Court case, or any other case I’m aware of, saying you can’t ask for consent during a traffic stop.
But that doesn’t answer the question of soliciting consent. Persuading people for their consent to search. That’s the issue here.
If the officer stopped the person for speeding, has a hunch there’s something in the car, asks for consent, the person is hemming and hawing around the edges, and the officer is adding a bunch of time trying to persuade that person to consent. That is a problem under Rodriguez.
Is it related to the traffic stop? No. Is it off mission? Yes. Is it adding time? Yes.
That’s the problem.
Pro tip one: reasonable suspicion changes the analysis
If the officer does have reasonable suspicion, and in Minnesota you probably do, because some states like Minnesota, Colorado and New Jersey don’t allow police to ask for consent to search unless they have reasonable suspicion first, then things look different.
If you have reasonable suspicion that the person is involved in criminal activity, then you’ve transformed the traffic stop from a traffic violation into a criminal investigation. Now the consent search is related to the reason for the stop.
Does that make sense? Adding some time for that would be permissible.
Pro tip two: end the stop first
The last pro tip is this. If you’re concerned about it, and you’re thinking well, I don’t want to extend the traffic stop, go off mission and violate Rodriguez. The solution is simple.
Give them all their paperwork back. Allow them to be free to leave.
Then ask for consent to search during a consensual encounter.
If that’s what you have, you don’t have a Rodriguez issue, because you’re not extending time while the person is being detained. The person is free to leave. That solves it.
I hope it helps. Keep the questions coming. Until next time my friends, stay safe.
Related from Blue to Gold
- Can Officers Ask for Consent During a Traffic Stop Under Rodriguez?
- US v. Rodriguez Traffic Stops and K9s
- Traffic Stop Searches with Consent
This article is an edited transcript of Roadside Chat Ep. #397. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
