The opinion of the court was delivered by: ROY
ELSIJANE T. ROY, UNITED STATES DISTRICT JUDGE.
On June 14, 1988 the Magistrate issued his Proposed Findings and Recommendations regarding the defendants' Motion to Suppress. The Government has filed its objections to the recommendation, and the parties have briefed the issues involved. The Court has reviewed relevant portions of the transcript of the hearing held before the Magistrate, and is now ready to enter its findings.
The facts as stated by the Magistrate are as follows: On March 13, 1988, at approximately 1:19 p.m., Trooper Wilson Atkins of the Arkansas State Police stopped a 1987 Jeep vehicle which was eastbound on Interstate 40 in Monroe County, Arkansas, and which was occupied by the three defendants. Trooper Atkins testified that he clocked the vehicle at 73 miles per hour on his radar in a 65-mile per hour zone. Defendant Stewart, who was driving at the time, testified that he had the vehicle set on cruise control and was traveling 65 miles per hour.
Trooper Atkins stated that, as he approached the driver's window, he smelled both a "perfumey" odor and a "chemical" odor. The defendants were removed to his vehicle one at a time in the course of his discovery that Stewart's license had been suspended, that the license of McCray, the owner of the vehicle, had been revoked, and that defendant Johnson had a valid license.
Trooper Atkins asked each defendant about their destination and, although each stated that their destination was Memphis, each stated a different purpose for that visit. With all three defendants in his patrol car, Trooper Atkins sought McCray's consent to search the Jeep vehicle. Atkins testified that in response to a question by McCray as to what would happen if he did not sign the consent form, he read part of the form to him. The defendants testified that Trooper Atkins of offered no answer to the question, which was asked twice.
The three defendants remained locked in the rear seat of the patrol car while Atkins conducted a search. He found a small white object in the center console, which he believed was a controlled substance and proceeded to search the entire vehicle. In his examination of luggage, he found four rectangular items wrapped in duct tape, which he suspected to be a controlled substance.
The defendants have been charged by indictment with conspiracy to possess with intent to distribute cocaine, and with possessing cocaine with intent to distribute.
In his proposed recommendations, the Magistrate found that the initial stop of the vehicle was not pretextual, but was a legitimate stop. He found that the trooper had probable cause, after discovering the material in the console, to search the luggage found in the vehicle. The Court will accept the Magistrate's finding on these issues. He also found, however, that there was not sufficient basis for a reasonable suspicion to request a consent to search. Citing Garrett v. Goodwin, 569 F. Supp. 106 (E.D. Ark. 1982), the Magistrate concluded that since there was not reasonable suspicion that there was contraband in defendants' vehicle, consent to search could not be requested, and the motion to suppress should be granted.
The Government and the defendants point to the case of Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) in support of their positions. The Government contends that this case stands for the proposition that there is no limitation on when an officer can merely ask for consent to search. Defendants contend that the language in Schneckloth requiring "some evidence of illicit activity" before consent can be requested, imposes the limitation suggested by the Magistrate. The Court finds that defendants' interpretation of the language is stretching the language too far. In fact, in Hall, Search and Seizure, § 4.5, relied upon by the Court in Garrett, supra, the author merely suggests that there be some standard:
While there appears to be no limitation in Schneckloth on when the police can initiate a search to be conducted by consent, (footnote omitted), it is submitted that a constitutional minimum would require at least that the initial encounter with the police be governed by the stop and frisk standard that there at least be an articulable suspicion of wrongdoing and that a search will turn up evidence. (footnote omitted).
The Court finds it appropriate to cite the paragraph from Schneckloth so that the words relied upon by the defendants may be read in context:
In situations where the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence. (footnote omitted). In the present case, for example, while the police had reason to stop the car for traffic violations, the State does not contend that there was probable cause to search the vehicle or that the search was incident to a valid arrest of any of the occupants. (footnote omitted). Yet, the search yielded tangible evidence that served as a basis for a prosecution, and provided some assurance that others, wholly innocent of the crime, were not mistakenly brought to trial. And in those cases where there is probable cause to arrest or search, but where the police lack a warrant, a consent search may still be valuable. If the search is conducted and proves fruitless, that in itself may convince the police that an arrest with its possible stigma and embarrassment is unnecessary, or that a far more extensive search ...