Suppose an officer conducts a traffic stop. During the stop, the officer gets a hunch that the driver may have drugs in the car. Can the officer ask the driver for consent to search the car? Even without reasonable suspicion? Does the time it takes to ask for consent, or the time it takes to conduct the search, unlawfully extend the stop? I’ll try to answer these important questions in this post.
Does the officer need reasonable suspicion to ask for consent to search? We will come back to questions about extending the stop. Set those aside for now. If the request and the search could be done instantly, is an officer required to have reasonable suspicion before asking for consent to search?
Supreme Court precedent tells us that the answer is no. Asking questions is not a search or a seizure and therefore an officer does not need reasonable suspicion to do so. See Muehler v. Mena, 544 U.S. 93 (2005) (asking questions of a person who is lawfully detained is not a seizure and does not require reasonable suspicion). This includes asking for consent to search. See Florida v. Bostick, 501 U.S. 429 (1991) (police may request consent to search luggage without reasonable suspicion as consensual interactions do not implicate the Fourth Amendment); United States v. Erwin, 155 F.3d 818 (6th Cir. 1998) (“A law enforcement officer does not violate the Fourth Amendment merely by approaching an individual, even when there is no reasonable suspicion that a crime has been committed, and asking him whether he is willing to answer some questions. . . . This includes a request for consent to search the individual’s vehicle.”).
The North Carolina Court of Appeals has issued several opinions that seem to point in a different direction. In State v. Parker, 183 N.C. App. 1 (2007), the court stated that “[i]f the officer’s request for consent to search is unrelated to the initial purpose for the stop, then the request must be supported by reasonable articulable suspicion of additional criminal activity.” Looking further at Parker, though, that statement seems to have been animated by a concern that asking for consent and conducting a search might unjustifiably extend the stop: “Without additional reasonable articulable suspicion of additional criminal activity, the officer’s request for consent exceeds the scope of the traffic stop and the prolonged detention violates the Fourth Amendment.” That consideration is exactly what the Supreme Court focused on in Rodriguez v. United States, 575 U.S. 348 (2015), and we will consider that below. But Parker has sometimes been cited for the idea that reasonable suspicion is required separate and apart from concerns about extending the duration of a stop. See State v. Johnson, 279 N.C. App. 475 (2021) (rejecting state’s argument that an officer’s request for consent to search did not measurably extend a traffic stop on the basis that the request was improper in any event because it was not supported by reasonable suspicion as required by Parker).
That understanding of Parker is not consistent with the Supreme Court precedent cited above. And while the North Carolina Constitution could conceivably limit police in a way that the Fourth Amendment doesn’t, Parker doesn’t make that argument. Notably, other cases have been more in keeping with the Supreme Court’s approach to asking for consent to search. For example, in State v. Jacobs, 162 N.C. App. 251 (2004), the North Carolina Court of Appeals concluded that “[n]o . . . showing [of reasonable suspicion] is required” before an officer may request consent to search. See also State v. Williams, 201 N.C. App. 566 (2009) (“Even in the absence of any suspicion that an individual is engaged in criminal activity, law enforcement officers may pose questions, ask for identification, and request consent to search . . . provided they do not induce cooperation by coercive means”) (quoting United States v. Drayton, 536 U.S. 194 (2002)).
Although Parker muddies the waters a little bit, the bottom line for me is that under the Fourth Amendment, an officer does not need reasonable suspicion to ask for consent to search.
Does asking for consent to search unlawfully extend the stop in violation of Rodriguez? Above, we assumed arguendo that the request for consent and the search could be done instantly. In fact, they cannot. It will take a few seconds for the officer to seek consent, and a longer period of time to conduct any resultant search. Does that run afoul of the Rodriguez holding that a traffic stop becomes unlawful if extended beyond the time required to complete the “mission” of the stop? Rodriguez itself did not involve a request for consent to search and the opinion does not specifically address such requests. But at least the initial analysis is straightforward.
As I previously noted here, in most cases, a request for consent to search is not related to the “mission” of the stop. See Wayne R. LaFave, Search And Seizure: A Treatise On The Fourth Amendment § 9.3(e) (“Of course, obtaining consent to a search can hardly be deemed a part of the ‘mission’ of a traffic stop” under Rodriguez); State v. Thompson, 966 N.W.2d 872 (Neb. Ct. App. 2021) (stating that an officer’s “questions concerning the presence of illegal drugs and request for consent to search were unrelated to the purpose of the traffic stop”). There might be some exceptions to that rule, as in a DWI stop where an impairing substance could be found in the vehicle. Compare Lauck v. State, 596 S.W.3d 71 (Ark. Ct. App. 2020) (officer did not improperly extend stop by asking for consent to search driver’s vehicle where officer was concerned that driver was impaired by a substance other than alcohol), and State v. Williams, 441 P.3d 242 (Or. Ct. App. 2019) (similar; requests for consent to search “were reasonably related to the DUII investigation”), with State v. Zeimer, 510 P.3d 100 (Mont. 2022) (stop improperly extended when officers undertook a “17-minute delay after completion of the belated field sobriety testing, purportedly for further DUI investigation, but which actually involved the time taken to ask for consent and then search Zeimer’s truck for something that could not possibly aid in assessing whether he was in fact alcohol or drug impaired”).
While requests to search a vehicle typically are not related to the mission of a stop, requests to frisk or to search a person may be viewed differently. They may serve an interest in officer safety, which is always part of the mission of a stop. See State v. Bullock, 370 N.C. 256 (2017) (so holding with respect to a request to frisk); State v. Brown, 945 N.W.2d 584 (Wisc. 2020) (“We conclude the Constitution permits law enforcement to ask a driver to exit the vehicle, inquire about the presence of weapons, and request consent to search the driver, all of which are negligibly burdensome actions relating to officer safety, a well-established part of a traffic stop’s mission.”). But see State v. Duncan, 272 N.C. App. 341 (2021) (suggesting that although a frisk for weapons may be mission-related, a search into a subject’s pockets is not).
Since requests to search a vehicle normally are not part of the mission of a stop, seeking consent risks unlawfully extending the stop. In some instances, an officer may avoid extending a stop by asking for consent during an unavoidable lull in pursuing the mission of the stop, such as while waiting for a database query to come back. Even if the officer extends the stop by a few seconds, a court might conclude that the time consumed is so minimal that it does not “measurably” extend the stop. Cf. Bullock, supra (stating that a frisk of a driver did not “measurably” extend a stop because it took only a few seconds; the court did not attempt to fully delineate between “measurable” extensions and those that are not measurable).
Even if the request does not extend – or does not “measurably” extend – a stop and so does not implicate Rodriguez, conducting a search once consent is granted will normally take much more time. Does that violate the Fourth Amendment, or is it justified by the consent? Probably the latter. Giving consent to search likely includes an understanding that the stop will continue for the length of time reasonably necessary to complete the search. See United States v. Salkil, 10 F.4th 897 (8th Cir. 2021) (“[P]olice obtained consent to search within the time reasonably required to complete the mission of the traffic stop. Once police lawfully secured consent to search, any delay occasioned by the search did not constitute an unlawful extension of the seizure.”).
Conclusion. Many officers have a practice of seeking consent to search only after a traffic stop has concluded with the return of the driver’s license and the issuance of any warning or citation. That may help avoid questions about whether the stop was improperly extended. But in circumstances under which such questions do arise, I hope that is post helps all concerned think about the answers.