Rush, C.J.
Unless police have reasonable suspicion that a subject is armed and dangerous, they may generally conduct a pat-down for officer safety only with the subject’s voluntary consent. Here, Defendant asked to step out of his truck during a traffic stop, and police made their permission conditional on a pat-down. Defendant argues that choice was inherently coercive and rendered his consent involuntary, but we disagree. Police could simply have required Defendant to remain in the truck, with no option of getting out, as part of their authority to control the scene of a traffic stop. Therefore, they could also make permission to exit conditional on consent to a pat-down, since Defendant had the option of staying in the truck and thus avoiding the search. We granted transfer after oral argument, and now reverse the trial court’s grant of Defendant’s motion to suppress evidence obtained as a result of the pat-down.
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A routine traffic stop presents enough “concern for officer safety” that it “may justify the ‘minimal’ additional intrusion of ordering a driver and passengers out of the car”—even though a stop does not automatically justify a non-consensual pat-down without reasonable suspicion that the subject may be armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 117–18 (1998) (citing Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) and Terry, 392 U.S. at 30). But if ordering occupants out of a car is only a “minimal additional intrusion” under the Fourth Amendment, Knowles, 525 U.S. at 117 (emphasis added), ordering them to remain in the car until the end of the stop is necessarily a lesser intrusion, and therefore permissible. Likewise, we have held that Article 1, Section 11 of the Indiana Constitution likewise “permits police to stop and briefly detain a motorist if the officer reasonably suspects that the motorist is engaged in, or about to engage in, illegal activity,” including a traffic violation. Mitchell v. State, 745 N.E.2d 775, 787 (Ind. 2001) (citing Baldwin, 715 N.E.2d at 340). Indeed, Defendant’s transfer brief concedes as much by arguing that police could simply have told him, “No, you cannot leave the car.” Without a doubt, then, police needed no particularized suspicion to order Defendant to stay in the car—either by an express order to stay in, or by denying permission to get out.
The logical conclusion of Defendant’s argument, then, is that if a motorist asks to get out of the car during a traffic stop, police have no choice but to either forbid it entirely or permit it unconditionally. We cannot agree. The practical result of such a rule would almost certainly be that police would err on the side of caution and never allow drivers out of the car during a stop, thus increasing the adversarial nature of traffic stops and restricting drivers’ liberty more than would otherwise be the case. Giving police a measure of discretion in their interactions with motorists will give motorists greater freedom as well. That discretion is surely not limitless—for example, we might find it inherently coercive to ask permission to search the inside of a car as a condition of letting the driver get out, since that condition would not be the “least intrusive means” of accommodating the motorist’s request. See Wilson v. State, 745 N.E.2d 789, 793 (Ind. 2001) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)). But we find no inherent coercion in the choice between remaining in the car, or being patted down as a condition of getting out.
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By contrast here, the very fact that Defendant asked permission to get out of his truck implies that he knew he was expected to stay in the truck unless he had specific permission to do otherwise. As Judge Brown’s dissent recognized, “the police were neither acting nor directing but rather responding to [Defendant]’s request to get out of his vehicle.” 4 N.E.3d at 807 (Brown, J., dissenting). In that context, telling him “that was fine but I would pat him down for any weapons,” id. at 803 (majority opinion) did not “announce[], in effect, that [he] had no right to resist” the pat-down, Campos, 885 N.E.2d at 600. Rather, it must be understood against Defendant’s recognition that he could choose (or even be required) not to get out of the truck—and thus not be patted down.
Defendant having a truly free choice also defeats his related argument that his consent was not valid because police never told him he could refuse consent. “[V]oluntariness is a question of fact to be determined from all the circumstances.” Bustamonte, 412 U.S. at 248–49. “While knowledge of the right to refuse consent is one factor to be taken into account,” it is not “the sine qua non of an effective consent.” Id. at 227. And as we have explained, the circumstances of Defendant’s request, and the officer’s response, reflect Defendant’s knowledge that he could avoid an unwanted search simply by choosing not to get out of his truck. . . . .
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. . . Here, consenting to a pat-down “for any weapons” permitted police to pat-down any part of Defendant’s clothing where a weapon might be found, including the pocket that contained the pill bottle. Thus, the issue is not whether the pill bottle itself was improperly discovered, but whether the officer’s question about its contents coerced Defendant into expanding the scope of the consent he initially gave.
We have recognized that repeated requests and accusatory questions can contribute to a coercive environment that negates consent. In Sellmer v. State, police essentially badgered the owner of a car into giving consent to search. 842 N.E.2d 358, 364-65 (Ind. 2006). They asked her for consent “between three and five times” before she relented and asked a string of pointed and potentially incriminating questions—telling her they had received a tip “that there was a large amount of illegal drugs in” her car and asking, “Do you know of any drugs that might be in your vehicle? Are there any drugs in this car? Do you know of any drugs that might be in the car or why our dispatcher would have received this call?” Id. at 364. We held that conduct, together with several other coercive tactics, combined to invalidate the subject’s consent—though we also recognized that no one (nor even several) of those tactics in isolation would have made that steep showing. Id. at 364–65.
But the police conduct here was far less confrontational than in Sellmer. Upon identifying the pill bottle by feel, the officer did not engage in aggressive or badgering questions, but asked only a single, open-ended question about its contents—“expecting [Defendant] to say it was his medication,” not to volunteer an incriminating answer. Instead, Defendant volunteered that the bottle contained marijuana, then without prompting took the bottle out of his own pocket and showed it to the officer. Then and only then, the officer asked a followup question, which was still consistent with a pat-down—whether “there was anything else on his person that . . . I needed to be aware of” (emphasis added)—to which Defendant volunteered, “I’ve got a pipe in the truck” and offered “to go get it.” At that point, the officer advised Defendant of his rights before the investigation went any further.
Thus, even though the scope of Defendant’s encounter with law enforcement broadened from his initial consent to a simple pat-down for weapons, that expansion resulted from information he volunteered, without coercion from (or even leading by) the investigating officer. Just as Defendant could consent to the initial pat-down, he could—and did—consent to its expansion. We find no violation of his constitutional rights.
Dickson, David, and Massa, JJ., concur.
Rucker, J., dissents with separate opinion:
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It is of course the case that police officers have the authority to maintain control of a traffic stop, including ordering someone to either stay in or exit a vehicle. However, it goes too far to permit a police officer to be able to barter an individual’s constitutional right to be free from warrantless, unreasonable searches in exchange for the individual to verify he in fact was committing a minor traffic infraction as the officer alleged. Up to the point when Cunningham asked to step out of the vehicle, the officer had no safety concerns. The officer also had not instructed Cunningham to remain in the vehicle. If instead of asking permission Cunningham simply had gotten out of the vehicle, inspected the light in the same calm demeanor, then immediately got back in his vehicle— whether or not Officer Hammock in the meantime had ordered him back in—Cunningham would not have done anything to warrant a search. See Jett v. State, 716 N.E.2d at 71. Unlike the majority, it appears to me Office Hammock was not seeking Cunningham’s permission to search in telling Cunningham he “would pat him down.” Tr. at 6 (emphasis added). Instead it is apparent the officer was merely asserting that he had that right. Cunningham’s response of “that was fine,” id., only served as verbal acknowledgement of his submission to the claimed authority.
I agree with my colleagues on the Court of Appeals that the “pat-down search of Cunningham violated the Fourth Amendment and the resulting fruits of that search must be suppressed.” State v. Cunningham, 4 N.E.3d 800, 807 (Ind. Ct. App. 2014). Accordingly, I would affirm the trial court’s grant of Cunningham’s motion to suppress.