VER ANEXO # 2: “LEYES DE SOFTWARE LIBRE” “LEGISLACION SOBRE SERVICIOS AGREGADOS DEL INTERNET EN ECUADOR,

The discovery of illegal drugs in Robinette’s car led to his indict- ment, his unsuccessful motion to suppress the evidence, and ulti- mately to his “no contest” plea.232 _{In overruling the motion to sup-}

press, the trial court focused on the scope of Deputy Newsome’s de- tention of Robinette.233 _{The judge found that “the deputy made clear}

to Robinette that the traffic matter was concluded before asking to search the vehicle” and therefore the consent to search “did not re- sult from any overbearing behavior on behalf of Newsome.”234 _Thus,

at the very first hearing, the trial judge identified as the constitu- tional battleground the boundaries of seizure of the person, and whether or not that person was within those boundaries when con- sent was solicited.235

When Robinette appealed his conviction, the Court of Appeals of Ohio, Montgomery County, continued to focus on the proper scope of the initial detention.236 _{The court noted, “He contends that once the}

purpose for the investigative stop—in this case the issuance of a warning for speeding—had been satisfied, the officer could not law- fully detain him further for the purpose of securing his consent to search for narcotics. We agree.”237

Relying on this argument as the “sole Assignment of Error,” the court of appeals concluded:

[A] reasonable person in Robinette’s position would not believe that the investigative stop had been concluded, and that he or she was free to go, so long as the police officer was continuing to ask investigative questions. . . . Because the search in the case before us resulted from an unlawful detention, it is the fruit of an unlaw- ful seizure.238

230. ACLU Brief, supra note 215, at 2.

231. SeeRobinette, 653 N.E.2d at 696. 232. Seeid.

233. Seeid. at 697. 234. Id. at 696. 235. Seeid.

236. Seeid.

237. State v. Robinette, No. 14074, 1994 WL 147806, at *1 (Ohio App. 2d Apr. 15, 1994).

Likewise, the Supreme Court of Ohio viewed the continued legal- ity of the detention as the crux of this case: “We find that the search was invalid since it was the product of an unlawful seizure.”239 _In

fact, recognizing that Robinette’s detention began legally, the state supreme court pinpointed the relevant inquiry: “The question is

when the validity of that stop ceased.”240 _{Justice Pfeifer, writing for}

the majority, regarded the marijuana and MDMA as illegally recov- ered not because of some flaw within the consent itself, but due to the context within which the consent was obtained.241 _{Deputy New-}

some had, with neither reason nor articulable facts, “extended his detention of Robinette by ordering him out of the vehicle. . . . There- fore the detention of Robinette ceased being legal when Newsome asked him to leave his vehicle.”242 _{The Ohio Supreme Court thus}

concluded: “Because Robinette’s consent was obtained during an il- legal detention, his consent is invalid unless the state proves that the consent was not the product of the illegal detention but the re- sult of an independent act of free will.”243 _{Justice Pfeifer noted that}

several facts, such as the lack of a “time lapse” between the illegal detention and the request to search, the deputy’s prefacing his re- quest to search with the phrase “before you get gone,” and most people’s belief that an officer’s continued interrogation signals con- tinued custody, caused this case to be “an example of the blurring be- tween a legal detention and an attempt at consensual interaction.”244

The state supreme court cogently identified the danger involved:

The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred. The undetectability of that transition may be used by police officers to coerce citizens into answering questions that they need not answer, or to allow a search of a vehicle that they are not legally obligated to allow.245

Thus, the court felt a “need for this court to draw a bright line be- tween the conclusion of a valid seizure and the beginning of a con-

239. Robinette, 653 N.E.2d at 697. 240. Id. (emphasis added). 241. Seeid. at 698.

242. Id. at 697-98. Although the Ohio Supreme Court correctly identified the issue in this case as one involving the scope of a legal detention, its statements regarding violation upon requesting an individual to get out of the vehicle during a traffic stop are contrary to

Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977). Thus, the improper extension of the detention actually occurred after Robinette was out of the car, when Deputy Newsome had completed his task of warning Robinette about speeding. In the majority opinion in this case, Chief Justice Rehnquist noted the Ohio Supreme Court’s failure to heed Mimms. See

Ohio v. Robinette, 117 S. Ct. 417, 421 (1996). 243. Robinette, 653 N.E.2d at 698. 244. Id.

sensual exchange.”246 _{Justice Pfeifer therefore crafted a rule to ad-}

dress the concerns of police overreaching due to the citizenry’s igno- rance of the absence of detention:

[T]o be secure in one’s person and property requires that citizens stopped for traffic offenses be clearly informed by the detaining of- ficer when they are free to go after a valid detention, before an offi- cer attempts to engage in a consensual interrogation. Any attempt at consensual interrogation must be preceded by the phrase “At this time you legally are free to go” or by words of similar im- port.247

Justice Pfeifer’s warning requirement was not created in a vac- uum. The state supreme court had just witnessed the government’s claim that a reasonable person who is caught speeding by a patrol- ling sheriff, ordered out of the car, and videotaped while asked “One question before you get gone: are you carrying any illegal contraband in your car?,” would feel free to just drive away.248 _{The state court,}

therefore, established their warning rule in the hope of preventing officers from transforming initially legal traffic stops into “fishing expedition[s] for unrelated criminal activity.”249