Here, Clark returned Kantor's driver's license and insurance card before they exited the patrol car. Clark lawfully extended the traffic stop by asking Kantor to stand 10 feet in front of his vehicle during the interference with law enforcement investigation. Clark removed Martynowicz from Kantor's vehicle before approaching Kantor, who was standing alone in a ditch beside a rural road at nighttime. At that point, Clark had no reasonable suspicion of criminal activity as to Kantor. Clark was walking toward and shining his flashlight on Kantor when he told him he was “not in any trouble” and was “free to go.” In the same breath, and without any physical disengagement, Clark asked Kantor if there was “anything illegal in the car” and if he could “search it real fast.” Clark was blocking Kantor's path to his vehicle when he asked these questions. Finally, Clark was not the only officer present and the other officer's emergency lights were flashing.
These factors establish that the encounter was an extension of the seizure and Kantor's consent was involuntarily given. The strongest factor is Clark's complete failure to temporally or physically disengage from Kantor. A reasonable person would not have felt free to disregard Clark's questions, get in his or her car, and drive away.[Update: the state filed a PR on October 21, 2013.]
[Further update: the KSC denied the state's PR and the mandate issued on December 30, 2013.]