Answers to questions during traffic stop were not consensual where defendant did not know he could leave

SEARCH & SEIZURE United States v. Gurrero-Espinoza, No. 05-8031, ___ F.3d ___ (10th Cir. Sep. 9, 2006)(Wyoming). Appeal of convictions and sentence for possession and conspiracy to possess cocaine and marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and (D), and § 846. HELD: District court’s finding that defendant, as passenger in van, consented to additional questioning by trooper during traffic stop was clearly erroneous. Where trooper took van driver to patrol car to issue warning ticket and completed traffic stop by returning license and letting driver out of car, but then reinitiated contact with defendant in van before driver returned to van, reasonable person in defendant’s place would not know he was free to leave. Therefore, trooper’s encounter with defendant was not consensual and defendant’s decision to answer additional questions was not voluntary consent to prolong traffic stop but instead was product of unlawful detention. Read the opinion here.