Opinion
No. 25205
December 17, 2003
ON MOTION FOR REHEARING AND/OR TRANSFER TO THE SUPREME COURT
The state asserts in its Motion for Rehearing or Transfer to the Missouri Supreme Court that this court's principal opinion imposed the requirement on the officer who stopped the defendant in this case to tell defendant he was "free to go" in order to have effected a consensual inquiry after completing the traffic stop. The state misreads the principal opinion. The opinion holds that a reasonable person in defendant's position, on the basis of the totality of the circumstances that followed the traffic stop of this defendant, would have understood that he or she was in custody. The officer who stopped this defendant was not required to advise defendant he was free to go to have avoided that perception; however, had he done so, the perception of custody generated by other circumstances would have likely been dispelled.
The opinion does not contradict the holdings of Ohio v. Robinette , 519 U.S. 33 (1996), or State v. Day , 87 S.W.3d 51 (Mo.App. 2002), that an officer is not required to tell a lawfully seized defendant he or she is "free to go" in order for a search conducted on the basis of voluntary discussion after a traffic stop to be legal. The Motion for Rehearing or Transfer to the Missouri Supreme Court is denied.