Police officers routinely engage in extended roadside questioning during traffic stops. The tactic, designed to goad drivers into divulging information that might lead to other potential offenses, is under increasing scrutiny in Pennsylvania. A three-judge state appellate panel decided earlier this month that officers may not start a second round of roadside questioning after telling a motorist that he is free to go.

The Pennsylvania Superior Court, the equivalent of the court of appeals in other states, took up the case of Tam Thanh Ngyuen who had been pulled over at around 3am on January 4, 2012. Pennsylvania State Police Trooper Jared Bromberg says that after he paced Ngyuen's black Mercedes at 73 MPH on Interstate 95, he turned on his siren and ordered Ngyuen to pull to the side of the road.

Ngyuen was nervous and, according to the trooper, he "talked too much." For Trooper Bromberg, this was evidence that Ngyuen was a drug dealer. So he decided to write the suspect a warning. He told Ngyuen that he was free to go, but instead of ending the interaction, the trooper turned around and began a second round of questioning about why he was nervous and where he was headed.

After a few minutes of discussion, the trooper asked for permission to search Ngyuen's Mercedes. The motorist consented, and when he got out of his car, the trooper frisked him for weapons. This turned up a Ziploc bag of OxyContin pills and $1058 in cash. More drugs were found in the car.

Ngyuen was arrested. The trooper admitted during the trial that he only told Ngyuen that he was "free to go" as a legal formality.

"I made the decision, after I told them they were free to go, that I was going to reengage him and ask him questions," Trooper Bromberg testified. "Before the driver was -- in order to get consent, I had to turn it into a mere encounter."

The three-judge appellate panel was not convinced that the second interaction was lawful.

"Because the trooper had accomplished the purpose of the stop, as indicated by his issuance of a warning and stating that the driver and appellant were free to go, the driver would have been within his rights to drive away at that point," Judge Jacqueline O. Shogan wrote for the majority. "Nevertheless, the trooper's subsequent actions were inconsistent with his statement that they were free to leave. After walking toward his cruiser, the trooper turned around and returned to the driver's vehicle, approached the driver, and began to ask the driver additional questions."

The insincerity of the trooper's statement struck the judges to mean that he would have reacted negatively had Ngyuen actually tried to drive away.

"Indeed, the trooper testified that it was his intention to re-engage the driver after ending the initial traffic violation stop," Judge Shogan wrote. "As such, we cannot conclude that a reasonable person would feel free to leave the scene... Thus, we conclude that the driver and appellant were not involved in a mere encounter with the troopers at that point, but instead were subjected to a second investigative detention."

At this point, the only suspicion that of wrongdoing in the Trooper Bromberg's mind came from the driver's being apologetic, nervous and talkative. A long list of precedents holds nervousness alone is not suspicious. Because the second round of questioning was not justified, the court decided the consent given by the nervous driver while surrounded by two troopers had not been truly voluntary.

"Under the facts of the present case, there was insufficient attenuation between the consent and the illegal detention to purge the taint of the trooper's unlawful conduct," Judge Shogan wrote.

A copy of the decision is available in a PDF file at the source link below.