State of Missouri, Respondent, v. Kersten Sund, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: State of Missouri, Respondent, v. Kersten Sund, Appellant. Case Number: ED85721 Handdown Date: 06/06/2006 Appeal From: Circuit Court of St. Louis County, Hon. Steven H. Goldman Counsel for Appellant: Michael A. Gross, Joseph F. Yeckel and N. Scott Rosenblum Counsel for Respondent: Shaun J. Mackelprang Opinion Summary: Kersten Sund appeals the circuit court's judgment, entered after a jury trial, finding Sund guilty of trafficking drugs in the second degree, section 195.223.7, RSMo 2000. The trial court sentenced Sund to five years of imprisonment but suspended the execution of the sentence. The court placed Sund on probation for a period of five years with the special condition that she complete 90 days of shock jail time. AFFIRMED AND TRANSFERRED TO THE MISSOURI SUPREME COURT. Division Two holds: The trial court did not err in denying Sund's motion to suppress evidence obtained during a search of the vehicle she had been driving. Citation: Opinion Author: Gary M. Gaertner, Presiding Judge Opinion Vote: AFFIRMED AND TRANSFERRED TO THE MISSOURI SUPREME COURT. Romines, J., concurs. Draper III, J., dissents. Opinion: Appellant, Kersten Sund ("Defendant"), appeals the judgment of the Circuit Court of St. Louis County, entered after a jury trial, finding Defendant guilty of trafficking drugs in the second degree, section 195.223.7, RSMo 2000. The

trial court sentenced Defendant to five years of imprisonment but suspended the execution of the sentence. Defendant was placed on probation for a period of five years with the special condition that she complete ninety days of shock jail time. We affirm and transfer to the Missouri Supreme Court. The following evidence was adduced at the hearing on Defendant's motion to suppress and at Defendant's trial: On February 26, 2003, Defendant flew from New York, where she lived, to Arizona and met up with her friend Khalila Wolfe ("Wolfe") at a Super 8 Motel. While they were still in Pheonix, Arizona, Wolfe informed Defendant that they would be driving a shipment of marijuana to Ohio. Wolfe had rented a blue Chrysler Concorde vehicle ("the vehicle") from Dollar Rent-A-Car. Defendant and Wolfe then began their drive to Ohio in the vehicle at approximately 9:00 p.m. on February 26, 2003. At about 10:45 p.m. on February 27, 2003, as Defendant and Wolfe were traveling through Eureka, Missouri, Officer William Knittel, Jr. ("Officer Knittel") stopped them for a traffic violation. Officer Knittel pulled the vehicle over because he had seen the vehicle drift onto the white dashed line which separated the lanes on Interstate 44. Defendant was driving the vehicle at the time and Wolfe was sitting in the passenger seat. After Defendant pulled over, Officer Knittel approached the vehicle and asked for Defendant's license and vehicle registration, at which time he was given Defendant's driver's license and a car rental agreement. Officer Knittel also asked Defendant some questions to determine whether Defendant had been drinking or falling asleep while driving. Officer Knittel then went back to his patrol car to perform a computer check on Defendant's license, which came back clean. He also reviewed the car rental agreement and discovered that Defendant's name was not on the agreement. As a result, Officer Knittel returned to the vehicle and obtained Wolfe's driver's license. Officer Knittel discovered that Wolfe's name matched the name on the car rental agreement. Before he returned to his patrol car for a second time, Officer Knittel asked Defendant to join him in his patrol car. Once he and Defendant were in the patrol car, Officer Knittel informed Defendant he was going to issue her a warning. While in the patrol car, Officer Knittel ran a computer check on Wolfe's license and the rental car's license plate registration. Officer Knittel also filled out the warning ticket and a racial-profiling form that he had to fill out as part of the stop. While waiting for the results of the computer checks and filling out the forms, Officer Knittel asked Defendant some questions about her current trip. Officer Knittel then exited the patrol car, approached the vehicle, and returned Wolfe's license to her. Subsequently, Officer Knittel motioned for Defendant to exit the patrol car. After Defendant exited the patrol car, she was given the warning ticket for improper lane usage and told to be careful. Defendant then walked back towards the vehicle. However, as Defendant was walking back to the vehicle after

receiving the ticket, Officer Knittel asked if he could search the vehicle and its contents. Defendant said "sure." Defendant then asked Wolfe to open the trunk. Wolfe asked Officer Knittel why he wanted to open the truck, and Officer Knittel explained that Defendant had given him permission to search the vehicle. Officer Knittel then asked for Wolfe's permission to search the vehicle, which she eventually granted. After granting permission to search, Wolfe opened the trunk. When the trunk opened, Officer Knittel smelled a very strong odor of raw marijuana. He looked inside the trunk and saw, in plain view, a partially open suitcase containing a brick of what appeared to be marijuana covered with clear plastic wrap. Subsequently, Officer Knittel placed Wolfe and Defendant under arrest, and seized four packages of marijuana. Defendant was advised of her Miranda rights. At the police station, Defendant was again advised of her Miranda rights. Defendant waived her rights, and then made some statements to the police. Defendant admitted that she knew there was marijuana in the vehicle she was driving. Later weighing and testing revealed that the packages contained approximately sixty-six and a half pounds of marijuana. On June 11, 2003, Defendant was charged by indictment with trafficking drugs in the second degree. On January 9, 2004, Defendant filed a motion to suppress the evidence procured through Officer Knittel's search of the vehicle. This motion was denied. On August 25, 2005, after a jury trial, Defendant was found guilty of the charged offense. Defendant filed a motion for judgment of acquittal notwithstanding the verdict, or, in the alternative, for a new trial in which she renewed her objection to the introduction of evidence obtained in the search of the vehicle. The trial court denied the motion. On January 14, 2005, the trial court sentenced Defendant to five years of imprisonment but suspended the execution of the sentence. Defendant was placed on probation for a period of five years with the special condition that she complete ninety days of shock jail time. This appeal by Defendant followed. In her only point on appeal, Defendant asserts the trial court erred in denying her motion to suppress evidence and overruling her objection to the admission of the evidence during the trial because the State obtained the evidence through an unlawful search and seizure. Upon reviewing a trial court's decision to deny a motion to suppress, we are limited to a determination of whether there is substantial evidence to support the decision. State v. Howes, 150 S.W.3d 139, 142 (Mo.App.E.D. 2004). We defer to the trial court's factual findings and credibility determinations, but whether the Fourth Amendment has been violated is a legal question we review de novo. Id. Where, as in this case, a motion to suppress was denied and the

evidence was introduced at trial, we will consider the evidence presented both at the suppression hearing and at trial in determining whether the motion should have been granted. State v. Goff, 129 S.W.3d 857, 861-62 (Mo.banc 2004). In her first sub-point on appeal, Defendant argues that the seizure of her person was unlawful in that Officer Knittel detained her beyond the time necessary to investigate the traffic offense. A routine traffic stop commencing because of a violation of a state traffic law is a justifiable seizure under the Fourth Amendment. State v. Bradshaw, 99 S.W.3d 73, 77 (Mo.App.E.D. 2003). The detention can only lawfully last for the time necessary for the police officer to conduct a reasonable investigation of the traffic violation. State v. Shoults, 159 S.W.3d 441, 445 (Mo.App.E.D. 2005). As long as the police officer is not doing anything more than what he is legally permitted and objectively authorized to do, the resulting stop is constitutional. Id. A reasonable investigation of a traffic violation may include requesting the driver to sit in the patrol car and questioning of the driver about her destination and purpose. Id. at 445-46. An officer may also request a driver's license and vehicle registration, run a computer check, and issue a citation. Bradshaw, 99 S.W.3d at 77. Defendant does not dispute that Officer Knittel had a valid basis for initially stopping the vehicle Defendant was driving, but rather claims that the length of the traffic stop was unlawful. There is evidence that, despite the various aspects of the traffic stop, the entire traffic stop lasted between fifteen and twenty minutes. During this time, Officer Knittel, inter alia: 1) asked some initial questions to determine if Defendant had been sleeping at the wheel or was driving while intoxicated; 2) ran a computer check on the driver's licenses of both Defendant and Wolfe; 3) ran a computer check on the rental car's license plate registration; 4) filled out a warning citation related to the traffic offense; and 5) filled out a racial profiling form. Defendant does not contend in her brief that the initial questions asked by Officer Knittel to determine if she had been falling asleep at the wheel or driving while intoxicated were unlawful. Secondly, Officer Knittel's computer check of Wolfe's license was legally permissible, because Defendant could not provide proof that she was entitled to operate the car as her name was not on the car rental agreement. He ran a computer check on Wolfe's license after finding her name matched the name listed on the car rental agreement. Furthermore, Officer Knittel's brief conversation with Defendant concerning details of her road trip only occurred while he was awaiting the results of computer checks and filling out paper work related to the traffic stop. Questioning Defendant about her destination and purpose during the routine traffic stop was permissible and did not unlawfully prolong the traffic stop. Thus, all of Officer Knittel's actions were consistent with a routine traffic stop. Finally, the traffic stop was complete after Officer Knittel handed Defendant the warning citation and told her to be

careful. Defendant and Wolfe subsequently consented to Officer Knittel's search of the trunk. We concede that Officer Knittel would have needed reasonable suspicion to conduct an investigation upon completion of the traffic stop had he not created a consensual encounter. However, Defendant does not argue within her first sub-point on appeal that Officer Knittel failed to create a consensual encounter when, while Defendant was returning to her car with the warning ticket in her possession, he asked Defendant for permission to search the trunk of the vehicle. Even within Defendant's analysis under the second sub-point on appeal, Defendant does not directly argue that, applying controlling consensual encounter case law, Officer Knittel failed to create a consensual encounter after the traffic stop was complete. In fact, in her second sub-point on appeal, Defendant concedes that the tactics Officer Knittel used in creating a consensual encounter "may not constitute misconduct per se . . .." Therefore, the trial court did not err in finding that the seizure of Defendant by Officer Knittel was not an illegal seizure. Sub-point denied. In her second sub-point on appeal, Defendant argues that the search of the vehicle was unlawful in that the consent given to search the vehicle was tainted by the unlawful detention of her and was not freely and voluntarily given. A defendant has the initial burden of proving that she has standing to challenge a search, under the Fourth Amendment, by demonstrating that she has a legitimate expectation of privacy in the place or thing searched. State v. Ramires, 152 S.W.3d 385, 395 (Mo.App.W.D. 2004). A defendant does not have a legitimate expectation of privacy in a car if there is proof that she is in possession of the car solely by virtue of being the driver of that car. State v. Toolen, 945 S.W.2d 629, 632 (Mo.App.E.D. 1997). In Toolen, we found that the owner of the vehicle, Hertz, in renting the car to a person other than the defendant did not authorize the defendant to be the second driver of the vehicle. Id. As a result, we held the defendant in that case could not claim the search protections of the Fourth Amendment in relation to the search of the car he had been driving. Id. Similarly, in this case, Defendant's name was not on the car rental agreement. There is no evidence that the owner of the vehicle, Dollar Rent-A-Car, authorized Defendant to operate the vehicle. Thus, Defendant cannot challenge the search of the vehicle because she did not have a legitimate expectation of privacy in the trunk of the vehicle. Sub-point denied. Therefore, we find the trial court did not err in denying Defendant's motion to suppress evidence obtained during Officer Knittel's search of the vehicle. Based upon the foregoing, we affirm the judgment of the trial court. However, we transfer this case to the Missouri Supreme Court because of its general interest.

Separate Opinion:

(hereinafter, "Sund") motion to suppress because Officer Knittel unlawfully extended the initial traffic stop in the absence of reasonable suspicion to believe Sund was engaged in criminal activity. I agree with the majority's analysis of Officer Knittel's initial actions during the traffic stop. "A routine traffic stop based on the violation of state traffic laws is a justifiable seizure under the Fourth Amendment." State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004). During a routine traffic stop, an officer may request a driver's license and vehicle registration, run a computer check, and issue a citation. State v. Bradshaw, 99 S.W.3d 73, 77 (Mo. App. E.D. 2003). Sund committed a traffic violation, and there is no question Officer Knittel's request for both Sund's and Khalila Wolfe's (hereinafter, "the passenger") license, along with the car rental registration was proper. Additionally, Officer Knittel's brief questioning of Sund while he ran a computer check, wrote the warning, and filled out racial profiling forms was proper within the context of a routine traffic stop. However, with "any detention that extends beyond the time reasonably necessary to effect its initial purpose, the seizure may lose its lawful character" unless reasonable suspicion of another crime arises. See Bradshaw, 99 S.W.3d at 77 (quoting State v. Hyland, 840 S.W.2d 219, 221 (Mo. banc 1992)). Any search after a traffic stop is completed "require[s] new and articulable suspicion that [the defendant] ha[s] committed a crime." State v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004). Officer Knittel testified he asked Sund about her current trip while she was seated in the patrol car after being stopped. Sund told Officer Knittel she and the passenger were going to Indiana for a wedding. The women were going to help a mutual friend pick out flowers and "do her hair." Officer Knittel asked Sund when the wedding was and Sund replied, "it wasn't going to be for awhile." Officer Knittel later questioned the passenger, who provided the same facts to him about traveling to Indiana to help their friend with her wedding. Despite this consistency, Officer Knittel testified he believed "if you were going to do someone's hair, you would do it the day of the wedding." Later, at trial, Officer Knittel admitted the "hairdo explanation" was reasonable if one were to take into account that most brides tend to explore several hairdo options prior to the wedding. After confirming Sund's story with the passenger, he waved Sund out of his vehicle, handed her the rental agreement, her license, and a warning. Officer Knittel told Sund to be careful. Sund turned to return to the vehicle when Officer Knittel requested permission to search the vehicle. Sund said

that he could. When Officer Knittel approached the passenger and asked her to open the trunk, the passenger questioned his request. Officer Knittel told the passenger that Sund had provided consent to search, and he believed Sund had lied to him, which Officer Knittel later testified was based upon "pure speculation." Further, Officer Knittel told the passenger "the interstate highways are used to conceal drugs, weapons, people and other illegal things." When the passenger hesitated to open the trunk, Officer Knittel told her "[E]ither I search it or a dog can do it." Officer Knittel explained this statement meant he would detain them until the canine unit arrived. At this point, the passenger opened the trunk and the subsequent search uncovered seventy pounds of marijuana. The majority's opinion fails to offer any analysis with respect to whether reasonable suspicion arose, either during the course of the traffic stop or after Sund was given the warning and told to be careful, in order to justify Officer Knittel's extended detention of Sund and the passenger. The majority states Sund did not argue on appeal that Officer Knittel failed to create a consensual encounter after returning her warning ticket to her. While Sund's point on appeal is not as succinct as it should be, Sund does state in the argument portion of her brief: [Sund] anticipates the [S]tate will argue that once Officer Knittel handed [Sund] her ticket and driver's license any subsequent interaction was consensual. Such an argument should be rejected....The adoption of the [S]tate's position would encourage police officers to extend detentions illegally because any taint may be removed by creating an artificial consensual encounter. As a result, motorists who commit minor traffic violations likely will be subjected to longer detentions contrary to the Fourth Amendment's requirement that traffic stops should be no longer than necessary. (citation omitted). Even if this passage is deemed insufficient to raise the precise point on appeal, I must reiterate our standard of review in this case. The issue of whether the Fourth Amendment and the Missouri constitution have been violated is a matter of law that is reviewed de novo. State v. McDonald, 170 S.W.3d 535, 537 (Mo. App. W.D. 2005). As such, it is proper to reexamine the trial court's ruling and fully examine any violation of the Fourth Amendment. My research has revealed three recent cases which are factually analogous to this case wherein each court held the officer impermissibly extended the traffic stop without articulating reasonable suspicion that the defendant was engaged in criminal activity after the officer indicated the defendant was free to leave. The Missouri Supreme recently addressed this exact issue in State v. Granado, supra. In Granado, the driver- defendant and his cousin, driving a rented truck, were stopped for weaving on an interstate highway. During the traffic stop, the defendant was described as being "extremely nervous," "shaking and stuttering," and had labored breathing.

The defendant and his cousin provided the officer with inconsistent statements with respect to their origin and destination. After investigation, the defendant was issued a warning and told he was free to leave. Thereafter, when the defendant exited the patrol car and returned to his truck, the officer asked him for permission to search the truck. The defendant denied consent. The officer then informed him that a canine unit would be called to do a sniff search and they would be required to wait. The subsequent canine search revealed thirty-six pounds of marijuana. The defendant was charged and convicted of possession of a controlled substance with intent to deliver. He appealed the trial court's denial of his motion to suppress evidence. The Missouri Supreme Court held the purpose of the traffic stop was complete prior to the search, and as a result, "[a]ny search thereafter required new and articulable suspicion that [the defendant] committed a crime." Granado, 148 S.W.3d at 311. (Emphasis added). The Court rejected the State's argument that reasonable suspicion could be based upon the officer's observations during the course of the traffic stop, stating: "If the search request occurred prior to handing [the defendant] the written warning and telling him that he was free to go, the Court might agree; however, he did not do so." Id. at 312. Likewise, in State v. Dickerson, 172 S.W.3d 818 (Mo. App. E.D. 2005), the driver was stopped on Interstate 44 for speeding in a rented car. The defendant was asleep in the backseat. The driver and the defendant provided the officer with conflicting stories regarding their trip and the defendant became "extremely nervous" upon the arrival of a drug- sniffing canine to the scene. The defendant even went so far as to attempt to grab his license out of the officer's hand, which the officer testified raised his suspicion even further. However, after processing the licenses and paperwork, the officer issued the driver a warning and told her to drive carefully. As the driver and defendant returned to their vehicle, the officer requested consent to search the vehicle. Consent was denied; however, the officer utilized the canine at the scene to search the car. The search uncovered approximately seventeen pounds of marijuana. The defendant was charged and convicted of possession of a controlled substance with intent to distribute. He appealed the trial court's denial of his motion to suppress evidence. This Court, relying upon Granado, reversed the defendant's conviction upon finding the officer impermissibly extended the traffic stop. This Court held the traffic stop was concluded and the officer failed to articulate "any new factual predicate for reasonable suspicion found during the period of lawful seizure that would support the search." Dickerson, 172 S.W.3d at 820. Similarly, we rejected the State's argument that reasonable suspicion arose during the course of the traffic stop based upon the holding in Granado. Finally, in State v. Sanchez, 178 S.W.3d 549, 550 (Mo. App. W.D. 2005), the driver and the defendant-passenger

were stopped along Interstate 70 for following too closely to a tractor trailer. The driver and the defendant gave vastly inconsistent stories to the officer with respect to their relationship, where they lived in Montana, how long the defendant had lived in Montana, what the driver did for a living, and the actual location of where they were staying in St. Louis. The officer also noted the driver identified the defendant as her friend "Anthony" but did not know his last name. Additionally, the officer noted the defendant's Arizona identification card appeared tampered with. After determining the driver's license was valid, the vehicle was registered legally, and the defendant's identification card was proper, the officer issued the driver a warning and said, "Have a safe trip, you're free to go." As the driver exited the patrol car to return to her vehicle, the officer asked her if he could ask her a few more questions. The driver consented, and the officer questioned her about the drug problem in our country and noted her nervous reaction. After a few more questions, the officer requested that the driver stay near the patrol car. The officer then questioned the defendant and searched him for weapons. When asked for consent to search the car, the defendant told the officer the car belonged to the driver and refused to grant consent to search his personal belongings inside the car. The officer directed the defendant to "Stay right here for me." The officer then proceeded to allow a drug-sniffing dog to search the vehicle. The search uncovered a large quantity of marijuana, methamphetamine, a pistol, ammunition, and a scale. The defendant was charged with and convicted of drug trafficking in the first degree. He appealed the trial court's denial of his motion to suppress evidence. The Western District reversed the conviction, relying upon Granado, holding the detention extended beyond the time reasonably necessary to effect the purpose of the initial stop in the absence of new reasonable suspicion that would support further detention. Sanchez, 178 S.W.3d at 550. (Emphasis added). The court recognized Granado required "some additional specific, articulable facts arising between the time the driver was released and the time the law enforcement officer asked further questions to justify continued detention." Id. at 555. Here, "there is nothing in the record demonstrating that any new 'specific, articulable facts' had developed between the time [the officer] told [the driver] she was free to go and the time he asked her if he could ask her a few more questions that would have justified [the officer] detaining her further." Id. Based on the foregoing cases, it is clear in the present case, once Officer Knittel issued the citation to Sund and admonished her to be careful, the traffic stop was complete. See also Barks, 128 S.W.3d at 517. Sund should have been free to go absent Officer Knittel having an objectively reasonable suspicion that Sund was engaged in criminal activity based upon specific articulable facts. Despite admitting he had observed no criminal conduct and had no reasonable suspicion of criminal activity, Officer Knittel testified, as did the officers in Granado, Dickerson, and Sanchez, that he

became "a little suspicious" during the course of his questioning during the traffic stop based upon Sund's innocuous comment about doing her friend's hair before the wedding. Our Supreme Court, the Western District and the Eastern District all rejected this reasoning when officers were presented with more egregious circumstances, such as inconsistent accounts among occupants and outward indicia of extreme nervousness. Granado, 148 S.W.3d at 312; Dickerson, 172 S.W.3d at 820; Sanchez, 178 S.W.3d at 555. Each court found it was impermissible to rely upon suspicion that arose during the traffic stop to further detain the defendant when an officer has issued a citation and indicated the defendant was free to go. Granado, 148 S.W.3d at 312; Dickerson, 172 S.W.3d at 820; Sanchez, 178 S.W.3d at 555. These courts held the officers needed to articulate a new factual predicate that would indicate the defendant was engaged in criminal activity that arose between the time the defendant was told he or she was free to leave and when the defendant began to leave the traffic stop. Granado, 148 S.W.3d at 312; Dickerson, 172 S.W.3d at 820; Sanchez, 178 S.W.3d at 555. (Emphasis added.). In all three instances, the officers could not articulate any additional facts, and as a result, all three convictions were reversed due to the trial court's error in failing to grant the motions to suppress evidence. Granado, 148 S.W.3d at 313; Dickerson, 172 S.W.3d at 821; Sanchez, 178 S.W.3d at 556. However, "[e]ven if a law enforcement officer does not have reasonable suspicion to further detain a driver at the completion of a traffic stop, the officer may question the driver if the encounter has turned into a consensual one." Granado, 148 S.W.3d at 312. If the driver is free to leave, the officer is permitted to converse with him or her and is free to ask questions with respect to contraband. Id. However, "[t]his does not mean an officer is free to involuntarily detain a driver without reasonable suspicion under the guise of simply engaging in a voluntary conversation."(FN1) Id. We must consider the totality of the circumstances to determine whether the officer's conduct would have communicated to a reasonable person that he or she was free to decline the officer's requests and end the encounter. Id. In Granado, the Court determined a reasonable person in the defendant's position would not have felt free to leave. The Court focused on the fact that the defendant and his cousin were both out-of-state residents, pulled over by a police officer on a rural highway in Missouri in the middle of a cold January night, while standing in an open field. Further, the officer indicated he would detain their belongings indefinitely until the canine unit could arrive. Granado, 148 S.W.3d at 312. Additionally, this Court in Dickerson held the defendant was not free to leave under a factual scenario remarkably similar to what happened in Granado. Dickerson, 172 S.W.3d at 821. Similarly, in Sanchez, the Western District found the defendant was not free to leave after examining the totality of the circumstances. The defendant was told by the officer, "Stay right here for me." Further, the court acknowledged the driver and defendant were out-of-state residents,

standing on the side of a Missouri interstate highway, in one hundred degree heat, with their car and all of their belongings detained. Sanchez, 178 S.W.3d at 555. In the case before us, Sund and the passenger were placed into remarkably similar circumstances as the defendants in the preceding cases. The traffic stop occurred late in the evening on a cold February night on the side of a Missouri highway. Neither Sund nor the passenger were Missouri residents; Sund is a Swedish citizen, and the passenger is an out-of-state resident. Moreover, Officer Knittel informed the women they would be detained until such time as a canine unit could arrive to search their car. Based on the totality of the circumstances, no reasonable person would have believed he or she was free to leave. I would find Officer Knittel impermissibly extended the traffic stop and failed to articulate any reasonable suspicion Sund was engaged in criminal activity upon the completion of the traffic stop. Moreover, I feel there is insufficient evidence in the record to support the finding the encounter turned consensual after the traffic stop was complete. In the absence of the seized evidence, I would find there was insufficient evidence to support the conviction. However, I recognize "the erroneous admission of evidence does not preclude retrial because the [S]tate may produce other evidence that cures the evidentiary insufficiency." See Granado, 148 S.W.3d at 313 (reversing and remanding for additional proceedings); Sanchez, 178 S.W.3d at 556 (same). Therefore, I would reverse and remand for further proceedings consistent with this opinion. Footnotes: FN1.Officer Knittel testified he routinely employed a "tactic" of purposefully waiting until a defendant is free to leave before requesting consent to search a vehicle because he knows a consensual search does not have the same level of scrutiny under the Fourth Amendment as a request "when one is clearly seized and in the custody of law enforcement." This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.