Legal Question in Traffic Law in Virginia

Re: Search of Vehicle

I think that Mr. Hendrickson's point is WHY would you ever consent? You are opening yourself up to the risk of whatever someone else might have put in your trunk or car somewhere that you don't know about, so what's the point of consenting?

I believe this is an interesting question as well. My colleague Sudeep Bose hits the nail on the head, but I think I might explain his point a little more. The issue is not whether the policeman must return the driver's license. The issue is whether a reasonable person would believe you are "free to leave." If the police officer does not give your driver's license back, then how are you going to drive away?

Why does this matter? Because you can only give your consent legitimately if you are not under arrest or in custody. The fact that you are not free to leave (you can't drive away without your license) means that you were effectively in custody (arrest). Therefore, the police officer would have to read you your Miranda rights, etc., etc.

Re: Search of Vehicle

No, but, hopefully, the officer would return it to you before slapping the cuffs on you and transporting you to the nearest jail facility after finding that item of contraband in your vehicle of whose existence you hadn't the faintest idea of but which, unfortunartely, surprisingly turned up in your vehicle as a result of the officer's very diligent search to which you had very foolishly consented.

Re: Search of Vehicle

There is no requirement for the return of your rightful property prior to engaging in a search - consentual or unconsentual (unconsentual search administered upon rightful arrest).

The issue, however, may be more interesting than you think.

I do not know what occurred after the bare facts you have laid out in the question; however, let us imagine that the officer asked for your consent to search your car and found cocaine.

Could his retention of your license in his possession be construed as a basis to challenge your "consent" to the search? Said differently, could the search (and therefore the fruits of the search, cocaine in our hypothetical) be challenged based on an argument that the officers retention of your license, a valid property interest, created a lawful arrest?

Indeed, this may be a viable argument - one with more facts required to analyze properly and posture before the Court.

BOSE LAW FIRM, PLLC

Former Police and Investigators

703-926-3900

http://www.boselawfirm.com

Re: Search of Vehicle

To add a bit more to the discussion, I would submit that it would be very unlikely for a criminal court in the Commonwealth to find that the driver in the scenario under discussion was not free to leave and therefore was not able to consent freely to the search without something more, e.g., such as the driver making a specific request for the return of his license and the officer thereupon refusing.

The officer's mere failure to return the license

on his own without any request from the driver prior to making his search request would not under the current criminal laws of the Commonwealth (in my view)cross the threshold necessary for a "seizure" wherein a reasonable person in such circumstances would believe that s/he was not free to leave the scene prior to consenting to the always ill-advised vehicle search which Mr. Moseley has reemphasized in his posted response.