Defendant Passenger Unlawfully Detained Even Though Driver Free to Go

U.S. v. Guerrero-Espinoza, 2006 WL 2642135 (9/15/06) - A great case for passengers at a traffic stop. The defendant passenger was not engaged in a consensual encounter (with Wyoming police officer Peech) but instead reasonably believed he was not free to go, even though the driver could reasonably believe he was free to go and even though the officer returned the car documents to the defendant, who was the van's owner. The record contained no evidence the passenger knew the officer had indicated to the driver that the traffic stop was over. The driver was still standing at the back of the van while Peech questioned the defendant. The defendant would reasonably believe he was not free to go because there was still a question about the insurance coverage on his van and, as far as he knew, the officer was still detaining the driver. Because the officer had declared the stop over and thus the purposes of the stop were completed and the government did not argue there was reasonable suspicion, the extended detention violated the Fourth Amendment and tainted the defendant's consent to search. Judge Tymkovich dissented on the grounds that it didn't matter whether the passenger felt free to go. The 10th had established a bright-line rule that once documents are returned any ensuing encounter with the officer is presumptively consensual.