Kansas Peace Officers Association Point of Law

Case v. Montana No. 24-624

Tue, 20 Jan 2026 19:34:19 GMT

Last week, the U.S. Supreme Court reaffirmed 9-0 that police officers may enter a home without a warrant if they have an “objectively reasonable basis for believing” that someone inside needs emergency assistance.

William Case had called his girlfriend telling her that he was going to kill himself, that he sounded “erratic” because he had probably been drinking, that he had past mental health issues, and that he had earlier attempted “suicide by cop.” Case then told the girlfriend that he would shoot any responding law enforcement, but the girlfriend heard a clicking that she believed was the cocking of a gun, and a “pop” followed by “just dead air.” The girlfriend called 911.

Officers responded, knocked on the house doors, yelled into an open window, and could see through a window, empty beer cans, an empty handgun holster, and a notepad with writing on it. Case did not respond. Officers called a supervisor. After 40 minutes and discussions of the possible scenarios, officers entered the house without a search warrant.

While in the house, one of the officers encountered Case hiding in a closet. Case threw open the closet curtain and appeared to the officer to be holding “black object” that looked like a gun. Fearing Case was going to shoot, the officer shot Case. A handgun was recovered near Case.

Case recovered from his wound and was criminally charged with assaulting the police officer. Prior to trial, Case moved to suppress all evidence obtained as a result of the officers’ home entry, arguing that the police needed, but did not have, probable cause to enter his house. The trial court denied suppression, and the Montana Supreme Court agreed. The Big Court agreed to review Case’s probable cause question, and last week Case lost his argument.

Because such “emergency assistance” calls are not criminal investigations, the Court declined to use the better-known criminal suspicion standards of “reasonable suspicion” and “probable cause.” Instead, the justices said that what they first held in 2006 in Brigham City v. Stewart was still sufficient today. “Brigham City’s reasonableness standard means just what it says, with no further gloss . . . Rather, Brigham City formulated its own standard for dealing with household emergencies—again, whether an officer has ‘an objectively reasonable basis for believing’ that an occupant is seriously injured or imminently threatened with such harm.”

The justices reminded us that an emergency-aid entry “provides no basis to search the premises beyond what is reasonably needed to deal with the emergency while maintaining officers’ safety.” And, that “[t]he objective reasonableness of an officer’s conduct under Brigham City, as in other Fourth Amendment contexts, is evaluated by looking at the totality of the circumstances.”

One last note: Justice Sotomayor wrote a concurring opinion (meaning that she agreed with the Court’s opinion but wanted to add some thoughts). No other justice joined her concurring opinion, but what she brings up is important to think about. The justice said that

“when an officer is called to respond to a person at risk of suicide, however, entering the house may not always be the objectively reasonable course of action to ‘preserve life or avoid serious injury’ . . . [because][s]tudies show that individuals with serious mental-health conditions are disproportionately likely to be injured and seven times more likely to be killed during police interactions compared to the general population . . . [and][o]nce the decision is made to enter, moreover, the ‘manner’ of the officers’ entry and their subsequent conduct inside must also be reasonable.”

Colin

Chatrie v. United States

Tue, 20 Jan 2026 19:33:07 GMT

Last week, the Big Court agreed to hear this term a GEOFENCE WARRANT case from the Fourth Circuit Court of Appeals. Geofence warrants are used to identify possible suspect cellphones that were within a certain geographical area during the time of the crime.

Okello Chatrie was convicted of robbing a Richmond, Virginia credit union of $195,000.00. Some of the evidence used against Chatrie was obtained from a series of geofence warrants to Google.

The Fourth Amendment arguments surrounding geofence warrants have been bubbling for a few years now, and the government has been generally successful so far in the lower courts. Here is another example of the law trying to catch up to today’s technology.

The Court should have a decision by summer.

Colin

United States v. Nahkai and United States v. Tyler

Mon, 12 Jan 2026 13:03:13 GMT

[As noted here some months ago, Point of Law will from time-to-time reprint cases summarized by other sources. The following cases are recent 10 th Circuit opinions as reviewed by the Federal Law Enforcement Training Center’s Legal Division]:

(Reprinted from The Informer, FLETC Legal Division, December, 2025)

United States v. Nahkai
No. 24-4058 (10th Cir. 2025)

Andy Nahkai answered the door on February 10, 2022, and found himself talking to a Navajo Nation investigator and an FBI Special Agent. The agents wanted to question Nahkai about allegations of sexual abuse made by a family member and suggested they do so in their vehicle, rather than inside the home with Nahkai’s wife within earshot.

Nahkai followed the officers to an unmarked pickup truck which had two indicia of law enforcement—a radio control and a rifle rack—and seated himself in the passenger seat. He was never handcuffed or touched by the officers in any way, and the vehicle was unlocked for the duration of the interview, which lasted approximately 41 minutes.

Shortly after the start of the interview, the FBI agent asked pointed questions about why the minor family member did not live at the home any longer. Nahkai explained that Social Services removed the minor because she reported his wife for physical abuse and him for sexual abuse, and the agent immediately began asking confrontational questions about “massages” Nahkai received from the minor that could have been considered sexual abuse. After Nahkai admitted the massages were of an intimate nature, the agent said, “Alright, well uh, I think we’re gonna talk with [Nahkai’s wife] here for just a second now if that’s alright. You’re good to go inside.”

Once Nahkai returned to his home, the agent and investigator followed up with a later arrest. Nahkai was charged with two counts of abusive sexual contact with a child while within Indian country, 18 U.S.C. § 2244(c) & 1153, and one count of abusive sexual contact with a child age 12-16 while within Indian country, 18 U.S.C. § 2244(a)(3) & 1153, based on his statements.

Nahkai moved to have his statements suppressed, arguing that he was not given any Miranda warnings during what he perceived to be a custodial interview. The government, however, argued that Nahkai was not “in custody” for purposes of Miranda, and he gave voluntary statements in an unlocked police vehicle parked outside of his home where he was free to leave (and did so).

The district court ruled the statements inadmissible, based on several factors, including: 1) whether officers advised the suspect that he was not required to answer questions and/or that he could terminate the interview; 2) the nature of the questioning; and 3) whether police dominated the atmosphere of the encounter. While the district court relied heavily on the first factor, the Tenth Circuit reversed the district court’s ruling, noting that the failure of the agents to tell Nahkai he could end the interview and leave was only one of many factors to consider.

Furthermore, the Tenth Circuit found the other factors to outweigh any failure to inform Nahkai he was free to end the interview and leave. These factors include: 1) the vehicle remained unlocked; 2) Nahkai could look down and see that the vehicle was unlocked; 3) Nahkai was never searched, handcuffed, or touched; 4) Nahkai was the first to mention sexual abuse; and 5) Nahkai sat in the passenger seat of the vehicle without any physical restraints. The court concluded that a reasonable person in Nahkai’s position would not have understood the situation as the “functional equivalent of formal arrest” and he was not “in custody” for Miranda purposes. Because he was not entitled to a Miranda warning, the agent’s questions did not present a Fourth Amendment issue and, as such, they were voluntary statements and admissible at trial.

United States v. Tyler
No. 24-6035 (10th Cir. 2025)

Oklahoma City Police officers were conducting surveillance for a wanted person, Karen Gonzalez, and spotted her as the passenger of a vehicle in a local gas station parking lot. When she exited the vehicle, officers ordered her and the driver, Jonas Tyler, to show their hands and walk backwards towards the officers. Gonzalez was handcuffed, brought to a curb, and sat calmly for the rest of the encounter. Gonzalez was placed under arrest for her outstanding warrant, but Tyler had no relation to her case, nor did he have any warrants of his own.

Without suspicion he was involved in any crime, officers handcuffed and extensively patted Tyler down, confiscated his phone, and placed him in the back of a police car.

Police officers asked for consent to search Tyler’s car and he refused; he was left in the back of the police car for approximately fifteen additional minutes while officers waited for a narcotics officer and a canine. The canine conducted a sniff of Tyler’s vehicle and alerted to the presence of narcotics. Officers then searched the car and recovered a firearm and six grams of suspected fentanyl pills. Tyler was subsequently charged with a state law violation for possession of a firearm by a previously convicted felon, entered a conditional plea to the single-count indictment, and reserved the right to appeal on the issue of suppression.

On appeal, Tyler argued that officers may not extend a detention to conduct a sniff absent reasonable suspicion that some crime is afoot, even if such a sniff would be otherwise permissible. Thus, he claimed his continued detention after Gonzalez had been handcuffed and arrested was unreasonable because he was not dangerous and officers had no reason to suspect a crime had been, was being, or would be committed. The government disagreed, stating that the delay was reasonable because Gonzalez had not yet been patted down by a female officer, as required by department policy.

The Tenth Circuit Court of Appeals agreed with Tyler’s argument, noting the government’s only interests were arresting Ms. Gonzalez and doing so safely. Once Gonzalez was handcuffed and confined to an area of the officer’s choosing, Tyler should have been allowed to leave the scene even if officers were waiting for a female officer to conduct a pat-down. By keeping Tyler detained for the sole purpose of allowing a canine handler to arrive and conduct a sniff of his vehicle, officers violated Tyler’s rights and any evidence discovered against him from that point on must be suppressed.

United States v. Watkins, United States v. McGregor, and United States v. Huerta

Mon, 12 Jan 2026 12:48:32 GMT

(Reprinted from The Informer, FLETC Legal Division, November, 2025)

United States v. Watkins, a/k/a Crazy Gun
No. 23-6210 (10th Cir. 2025)

A motel manager told police officers that a man matching the description of a carjacking suspect was staying in Room 231. The rooms were accessible only from open-air walkways around a 6 central courtyard. Room 231 was a second-floor unit at the end of one of the walkways. The walkway extended a few feet past the door, which faced a perpendicular walkway. One of the room’s windows, above an air-conditioning unit, overlooked the extension. There was a short railing enclosing two sides of the extension. The room was accessible from the parking lot via an outdoor staircase. Below are two photographs depicting the outside of Room 231.

The officers climbed the exterior stairway and walked to room 231. One of the officers looked into the window above the AC unit, where the curtains were open approximately one-inch.

Inside, the officer saw Watkins sitting on a bed. The officer saw a handgun with an extended magazine next to Watkins. After the officers arrested Watkins, they obtained a search warrant for Room 231, where they seized, among other things, a handgun, an extended magazine and ammunition.

The government charged Watkins with being a felon in possession of a firearm and ammunition.

Watkins filed a motion to suppress the evidence found in Room 231.

First, Watkins claimed that the officer violated the Fourth Amendment when he physically intruded upon the curtilage of the motel suite. Curtilage is the area to which extends the intimate activity associated with the sanctity of the home. In this case, the court reviewed the two photographs above, which depict the outside of Room 231. The court concluded that the photo evidence established that the walkway, including the extension next to Room 231, on which the officer stood, was part of the motel’s common area and it was freely accessible to all staff, guests, and visitors. As such, the court held that the extension was a place accessible to the public, not an area “intimately tied” to the motel room; therefore, it was not considered curtilage, and the officer did not violate the Fourth Amendment when he stood there and made his observations.

Next, Watkins claimed that even if the walkway’s extension was not curtilage, the officer’s peering through the one-inch gap in the otherwise closed window curtain intruded upon his reasonable expectation of privacy in violation of the Fourth Amendment.

Again, the court disagreed. A person in a dwelling has no reasonable expectation of privacy with respect to what can be seen, heard, or smelled by someone in a public place with one’s natural senses. Here, the officer made his observations from a place freely accessible to the public, the motel’s open-air walkway, using only his unaided eye. Consequently, the court held that the officer’s observations did not violate Watkins’s reasonable expectation of privacy.

United States v. McGregor
No. 23-1399 (10th Cir. 2025)

Two Aurora, Colorado, police officers assigned to the Department’s Gang Intervention Unit (GIU) were on patrol in a residential area when they observed a white Nissan traveling 25 mph 7 over the speed limit. When the officers activated their vehicle’s lights and sirens to initiate a stop, both officers observed the driver making ‘furtive gestures’ before pulling his vehicle over.

Specifically, the first officer observed the driver “leaning to the left and then leaning to the right, and at one point leaning so far over to the right that [the officer] lost sight of the driver”.

The second officer made similar observations; he noted that the driver “leaned way over to the passenger’s side” and that “this was a dramatic lean-over that [was] frantic and abrupt”. Like the first officer, the second officer also recalled that the driver “got his whole body over the console moving over to the right such that at one point in time [the officer] couldn’t see the driver”. These observations caused both officers to harbor personal safety concerns, with the first officer stating that he was “worried that the driver was either concealing or attempting to conceal something or retrieving something from the passenger’s side of the car”. All these observations were made after the officers activated their lights but before the driver came to a stop.

As officers approached the vehicle, one officer observed the driver, Clover McGregor, put his hands and head outside of the vehicle, which made the officer “uneasy” because he thought the driver was tracking his location. It was then that both officers recognized McGregor as part of an “extremely violent criminal street gang involved in armed robberies, car jackings, high-speed pursuits, and aggravated assaults involving weapons” based on their prior experience in the GIU.

When the first officer began to question McGregor, McGregor revealed that he was on parole for robbery and that he was driving to a urinalysis appointment as a requirement of his parole conditions. When the officer then asked McGregor for his driver’s license, he began “reaching all around in different areas” with his hands inside the car, which made the officer nervous because McGregor’s wallet was clearly visible in his lap. The officer then asked McGregor to place his hands behind his head and step out of the vehicle. Once McGregor exited, the first officer patted him down for weapons and, finding none, asked him to sit down on the curb next to the car. The officers then searched the passenger seat of McGregor’s vehicle and discovered a gun. McGregor was arrested and charged with one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).

McGregor moved to suppress the gun from evidence as the fruit of an unlawful search because officers did not have reasonable suspicion that he was armed and dangerous. The district court denied the motion, McGregor entered a conditional guilty plea, and reserved his right to appeal the suppression ruling, and this is his appeal.

The Tenth Circuit Court of Appeals reviewed the denial of the motion to suppress and agreed with the lower court’s decision. The court concluded that, while each of the factors cited by the officers considered alone may not have justified a warrantless search, they did justify the search when considered as part of the totality of circumstances facing the officers that day.

Specifically, the court noted the following factors: (1) the “furtive gestures” which were described in great detail by the officers in terms of what they observed and how they perceived these gestures based on their training and experience; (2) the officers’ knowledge that McGregor was affiliated with a violent local gang; and (3) his admitted criminal history as a convicted robber on parole. With each of these factors considered together, it provided the officers with reasonable and articulable suspicion that McGregor was presently armed and dangerous and provided the officers with lawful authority to search his vehicle.

United States v. Huerta
No. 25-1050 (10th Cir. 2025)

A shooting occurred at a convenience store in Denver, Colorado in the early morning hours of June 26, 2023. Police identified a suspect, described as “a light-skinned black male who is bald with a thick beard and muscular build”. A security camera captured a photo of the suspect.

Police located the suspect’s vehicle, a black Ford Expedition several hours later, unoccupied and parked on the street outside of an apartment complex several miles from the shooting location.

Members of the Denver Police Department were provided with a photo of the suspect and put into position to surveil the vehicle while uniformed officers waited nearby.

Approximately twelve hours after the shooting occurred, a detective observed a black sedan pull up and park directly behind the Expedition. He radioed that two black females and “a black male [in] a white T-shirt, white hat [and] red pants” exited the black sedan and “milled around a little bit” before entering the complex. Shortly thereafter, the group exited the complex and got into a white Dodge Durango SUV parked behind the black sedan. One of the surveilling detectives instructed the uniformed officers to “stop [the Durango] out of the area just to be on the safe side” because of the “proximity of the target vehicle” because the black male was “somewhat similar in appearance” to the shooting suspect.

Nearby officers observed the Durango pull up to a pump at a gas station and noticed the Durango had expired plates and decided to stop it. The officers pulled up behind the Durango but did not have their emergency lights or sirens activated. The officers watched the Durango as the Durango’s driver and front seat passenger (a man later identified as Mr. Marshall) exited the vehicle and walked towards the gas station’s convenience store. Marshall, a black male, was thought to be the one who looked “somewhat similar” to the suspected shooter. But Marshall was not light skinned or bald, did not have a ‘thick beard” and had a tattoo on his face.

As an officer approached the back left door of the Durango, a female exited. As another officer approached the back right door of the vehicle, he noticed there was a fourth occupant later identified as Noah Huerta, who began to exit the vehicle with his left hand “somewhat near his waistband”. An officer instructed, “don’t reach for anything” and placed his hands on Huerta’s shoulder and wrist as he exited the car. The officer then turned Huerta around, held his arms behind his back, and placed handcuffs on him.

As Huerta asked what was going on, the officers told him to relax but he then tensed up and “started to turn his body, both left, right and kind of lean towards the car”. A nearby officer testified that Huerta was “squirmish” and that he tried to “cant his body away” and appeared not to be listening to the officer’s commands. The officers saw that Huerta “had a pouch attached to his belt loop”, with the pouch tucked into Huerta’s back right pocket. An officer felt the exterior of the pocket, determined there was a firearm magazine inside, and then asked if he had a gun, which Huerta denied. The officers patted down Huerta but did not find a firearm and then put him in the back of the patrol vehicle because Huerta was “all over the place”.

Officers conducted name clearances on Huerta and Marshall and learned that they both had violent felony convictions. Officers obtained consent to search the vehicle from the female driver and found a nine-millimeter handgun in the vehicle near Huerta’s seat. The magazine found on Huerta fit the recovered handgun. Huerta was arrested and charged with being a felon in possession of a firearm or ammunition contrary to 18 U.S.C. § 922(g)(1).

Huerta did not contest the validity of the stop based on the Durango’s expired plates, but he did move to suppress the firearm and magazine obtained from the search, arguing that the officers lacked reasonable suspicion that he was armed and dangerous to justify the pat down that yielded the magazine. He also argued that the subsequent search of the vehicle, premised mainly upon what the officers discovered during the unlawful frisk, was also inadmissible as the police lacked reasonable suspicion that any of the occupants of the vehicle were armed and dangerous. The district court denied Huerta’s motion to suppress, finding that the totality of the circumstances established reasonable suspicion that he was armed and dangerous. In addition, the court ruled that, even if the pat down was illegal, the firearm would have been inevitably discovered during a protective sweep of the car.

The Tenth Circuit Court of Appeals disagreed on both points and found that officers lacked lawful authority to conduct a pat down and that the officers wouldn’t have inevitably discovered the firearm during a protective sweep of the vehicle as they lacked reasonable suspicion to believe that Huerta – or any of the other passengers – were armed and dangerous.

First, the court looked at the government’s claim that they had information that the shooting suspect was in the Durango and found that any potential connection that the occupants of the Durango had to the suspect vehicle was attenuated at best because: 1) there was no information connecting them to the vehicle; and 2) they merely parked behind the target vehicle in an apartment complex in the daytime nearly twelve hours after the shooting. Further, the fact that Huerta shared some basic similarities with the suspect did not support the conclusion. Although both the suspect and Marshall were both back men with facial hair, the shooting suspect was described as a light skinned black male who was bald with a thick beard and muscular build. In contrast. Marshall was not bald, did not have a full beard, sported a notable tattoo on his face and was not light skinned. Additionally, the detective’s radio broadcast to stop the vehicle “just to be on the safe side” reflected nothing more than an ‘inchoate and unparticularized suspicion or hunch”, rendering the frisk of Huerta, a passenger in a vehicle with Marshall, unreasonable under the circumstances.

Next, the court addressed the passengers’ decision to exit the vehicle and recognized that it may, at times, be suspicious for a motorist to walk away from his vehicle during an ordinary traffic stop but this was not such a stop. At the time the two front-seat passengers exited the vehicle and walked towards the convenience store, the patrol car had just pulled up behind the Durango without any lights or sirens activated. It was only several moments later, and after the occupants exited the vehicle, that a second patrol car pulled up with lights activated.

Accordingly, court concluded that it was not reasonable for the officers to find this behavior unusual, particularly given the fact that they were operating on a mere “hunch” that the suspected shooter was in the vehicle.

Finally, with respect to Huerta’s behavior, body camera video showed that officers exited and approached the Durango as Huerta exited the vehicle. He held a phone in his left hand and his right hand was visibly empty. As Huerta exited the vehicle, an officer grabbed him and, in a matter of seconds, turned him around and placed his hands behind his back. Given that Huerta appeared unaware of the stop, and how quickly he was restrained, the court did not think it was unusual that he would be “squirmish”, particularly because he was already restrained. Even though the government argued that Huerta made a “furtive” movement – moving his right hand up towards his waistline – as he was exiting the vehicle, the government admitted the movement was “slight” and “likely innocuous in hindsight”. Body camera footage did not show anything more than Huerta briefly placing his left hand on his thigh as he was exiting the vehicle.

The Tenth Circuit concluded that, even when considering the attendant circumstances individually and in the aggregate, the record did not support the “minimal level of objective justification” required under the reasonableness standard to believe Huerta was armed and dangerous.

Moreover, the Tenth Circuit rejected the lower court’s finding that the gun would have been inevitably discovered during a protective sweep of the Durango because the officers only asked the driver of the Durango for consent to search the car because they discovered the magazine during an unlawful frisk. As a result, the court concluded that the officers lacked reasonable suspicion to believe that Huerta – or any of the other passengers – were armed and dangerous at the time they searched the Durango.

State v. Dane Michael Knoblauch No. 126,896

Mon, 15 Dec 2025 01:50:28 GMT

Last Friday was a bad hair day for a Kansas “sovereign citizen.” Following a conviction for an inoperable tag light and driving while suspended, Dane Knoblauch appealed to the Kansas Court of Appeals raising certain sovereign citizen arguments such as lack of jurisdiction of the district court, and that Dane’s “driving” was not really “driving” since he had only been “traveling” while operating his car.

In its short opinion, the appellate panel quickly found nothing of value in Dane’s 46-page self-represented brief. The judges said that Dane’s lengthy document “consists almost exclusively of various tangents and diatribes, asserting [that] he is somehow exempt or immune from being subject to the laws of Kansas as a sovereign citizen.” “Such arguments have been found by other courts as ‘completely without merit, patently frivolous, and will be rejected without expending any more of this Court’s resources on their discussion’ . . . Simply put, ‘an individual’s belief that his status as a sovereign citizen puts him beyond the jurisdiction of the courts has no conceivable validity in American law.”

Dane’s “complaints are based on his subjective view of the law, which is not the law.” “The law in the State of Kansas is set forth by our Legislature and applies equally to all persons in the State, irrespective of their individual consent and regardless of what they may wish it to be. In other words, everyone in this State must follow the law as defined by our Legislature.”

Mic drop.

~ Colin

State v. Cory Helmstead No. 127,667

Mon, 08 Dec 2025 12:21:05 GMT

A recent Kansas Court of Appeals case provides a good review on roadside custody and interview requirements. In the fall of 2022, Cory Helmstead was a backseat passenger in a car from which the driver had just been arrested for DUI. When interviewed later after a search of the car, Helmstead had provided incriminating statements about his ownership of some THC evidence found near where Helmstead had been sitting. Some of his statements were made before his having been Mirandized, and some statements were made after. Helmstead was charged, lost his suppression motion before the trial court, and was convicted. He appealed arguing that because he had been in “arrest custody” during the entire traffic stop that all of the incriminating statements were illegally obtained.

The facts of the case are not important for this summary as its intent is to simply remind officers about some of the 4th and 5th Amendment law surrounding such an encounter. Here is what the judges had to say to Helmstead:

"[U]nder the Fourth Amendment, a person is protected from unreasonable searches and seizures. But the Fifth Amendment protects a person's privilege against self-incriminating statements.”

“For purposes of a Fourth Amendment analysis, encounters between law enforcement officers and the public are generally classified under one of these categories: (1) consensual encounters; (2) investigatory detentions, also known as Terry stops; (3) public safety stops; and (4) arrests . . . an investigatory detention or Terry stop allows an officer to detain any person in a public place if the officer reasonably suspects that the person is committing, has committed, or is about to commit a crime. Although a person is seized when stopped by an officer and the freedom to walk away is restrained, a person can be seized without actually being under arrest. When a person is temporarily seized under Terry—but not under arrest—that encounter is an investigatory detention.”

"By contrast, under the Fifth Amendment, statements stemming from custodial interrogation must be excluded unless the State shows it used procedural safeguards, i.e., Miranda warnings, to secure the defendant's privilege against self-incrimination . . . 'The Miranda safeguards are triggered only when an accused is (1) in custody and (2) subject to interrogation.”

“A custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom in any significant way. A custodial interrogation is distinguished from an investigatory interrogation, which occurs as a routine part of the fact-finding process before the investigation reaches the accusatory stage . . . At the heart of the custody analysis, the court must ultimately determine as a matter of law whether, under the totality of the circumstances, a reasonable person would have felt free to terminate the interrogation and disengage from the encounter.”

“Roadside questioning during a routine traffic stop does not necessarily constitute a 'custodial interrogation' for Miranda purposes . . . This is because an ordinary traffic stop is quite different from the atmosphere of being interrogated at a law enforcement station, and most people understand that a traffic stop is normally brief and they will be free to leave once the stop is concluded . . . As the Berkemer Court predicted, under this nuanced case-by-case rule, "the police and lower courts will continue occasionally to have difficulty deciding exactly when a suspect has been taken into custody . . . It is possible that an investigatory detention from a routine traffic stop can transform into a custodial interrogation under unusual circumstances . . . But additional factors showing that the person was "'in custody'" for practical purposes must be present to trigger the full panoply of protections under Miranda.”

“For instance, our Supreme Cout held that a person taken from a car at gunpoint, placed on the ground, and handcuffed was in custody for Miranda purposes. Yet as the record shows, that was not the case here.”

“Our Supreme Court established eight factors to consider when determining whether an interrogation is investigative or custodial in nature: (1) the place and time of the interrogation; (2) the duration of the interrogation; (3) the number of law enforcement officers present; (4) the conduct of the officer or officers and the person being questioned; (5) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6) whether the person is being questioned as a suspect or a witness; (7) whether police escorted the person being questioned to the interrogation location or the person arrived under the person's own power; and (8) the result of the interrogation, for instance, whether the person was allowed to leave, was detained further, or was arrested after the interrogation. No one factor outweighs another, and the factors do not bear equal weight. A court must analyze every situation on its own particular facts.”

After analyzing the above factors in Helmstead’s event, the appellate panel agreed with the trial court that Helmstead’s pre-Miranda and post-Miranda statements were legally obtained.

~ Colin

State v. James Lee (No. 127,436)

Sat, 02 Aug 2025 16:34:15 GMT

A panel of the Kansas Court of Appeals has reversed a district judge’s earlier decision to uphold two questioned search warrants issued during a domestic violence investigation. The opinion reminds law enforcement not to ask to search for things for which probable cause does not exist, and to remember to proof-read the search warrant documents before they are given to a judge to review.

James Lee, his bail bond business, and Lee’s girlfriend stayed in the north side of a residence. One of Lee’s friends, and that guy’s girlfriend, stayed in the south side of the house. A domestic dispute broke out between the friend and the friend’s girlfriend during which the girlfriend was bloodied, and the police were called. Lee and his girlfriend were not involved but were present.

When the injured girlfriend refused to cooperate, the officers sought a search warrant to search the residence for evidence of the fight including bloody items, damaged furniture, and “evidence to indicate the occupants or residents of the residence including, but not limited to cell phones, receipts, notes ledgers, address books, correspondence, utility bills, photo I.D.’s, photographs, videotapes, and/or DVD’s and digital media including, but not limited to cameras, USB drives, and computers.”

The search warrant was issued and officers searched the house. When an officer found drugs in a small wooden box in Lee’s bedroom, officers obtained a second search warrant to search for additional drugs. Officers located more drugs, paraphernalia, and cash in Lee’s closet that was used for his bail bond business, and Lee was charged with a drug trafficking offense. He filed for suppression of both search warrants arguing that the first warrant was “overbroad” as to the “occupant of the residence” search authority; and, nowhere on the second warrant was the house’s address. Lee’s arguments lost before the trial judge, he was convicted, and Lee was sentenced to 98 months in prison. An appeal followed.

Last week, the Court of Appeals reversed. The opinion reminds us that the Fourth Amendment was enacted as a “response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity . . . [and that] “places to be searched and the items to be seized must be described ‘particularly’ . . . to safeguard against fishing expeditions or other government overreach . . . especially . . . in searches of one’s home.”

So, as for the first warrant, the panel questioned the need to confirm the identities of the occupants of the residence. Since the officers already had that information from their initial investigation, allowing for such wide-ranging “occupant evidence” broadened the “scope of the first search warrant to well beyond a search for evidence of the alleged domestic violence incident” that in reality involved only the two persons in the south end of the house. The panel agreed that there was probable cause to search for evidence of domestic battery, but no probable cause to allow for “a generalized search of all rooms of the residence . . . under the guise of trying to determine the occupancy of those living there.” Although the panel did not say why, it further held that the good faith of the officers could not save the first warrant.

As for the second search warrant, it too was D.O.A. Since the second warrant was 1) based upon evidence of drugs “improperly seized based upon the faulty first warrant, . . . it is also invalid;” and, 2) because the preparing officers had failed to include the address of the residence to be searched, the second warrant too was to be suppressed. Did good faith save this one? Nope. No reasonable officer could have believed that a search warrant that did not identify the place to be searched could be valid.

Bottom line: try not to use someone else’s earlier search warrant template when investigating a different kind of crime with a different kind of evidence; and, read over the SW package more than once. The defense attorney probably will.

~ Colin

State v. Brian Beck No. 126,350 - ADDENDUM TO EARLIER 07/07/2025 SUMMARY

Wed, 09 Jul 2025 02:26:51 GMT

(No reasonable suspicion of a crime justifying a car stop for obscured state name on license plate)

SYLLABUS BY THE COURT

I try not to get into the weeds when alerting law enforcement about important decisions of our appellate courts. Instead, I attempt to only pass along the information necessary for officers to be aware of changes that will affect their day-to-day activities. However, now and then a case comes along that is so confusing that a few extra paragraphs are necessary. This is one of those cases.

I fully admit that I am not the sharpest knife in the drawer. I must also admit that I just do not understand how the justices found zero statutory support for the requirement that a license plate have a state name on it, and that the state name (being a required part of such license plate) has to be clearly visible, be free from foreign materials, and be clearly legible.

Unlike most summaries, I have attached here a copy of the opinion. See pages 10 and 11 for the Court’s reasoning. After a somewhat contorted journey through state and federal case law, K.S.A. 8-147, 8-1,141, 8-132(a), and 8-133, the opinion found itself discussing easily read letters and numerals, and apparently conflating license plates with registration decals.

My confusion probably comes from why any of that journey was necessary. When faced with interpretation issues, courts turn to what is called statutory construction canons. One canon is to read statutes in pari materia which means that "[i]n construing statutes and determining legislative intent, several provisions of an act or acts . . . must be construed together with a view of reconciling and bringing them into workable harmony if possible." Courts have a duty "to reconcile the different provisions so as to make them consistent, harmonious, and sensible."

In that vein, see the following statutes concerning the license plate issue:

8-126a. Whenever in this act or in any other law of this state relating to registration of motor vehicles any of the following words or terms are used: 1. Number plate or plates. 2. License number plates. 3. License number plate. 4. Number plate. 5. Number plates. 6. Registration number plate. 7. License tags. 8. Tags; or any other word, term or phrase of similar import or meaning is used in any such law, the same shall be construed to mean and include any plate, tag, token, marker or sign issued under the provisions of this act for the purpose of identifying vehicles registered under the provisions of the motor-vehicle registration laws of this state or otherwise carrying out the provisions of such laws.

8-132. (a) Subject to the provisions of this section and K.S.A. 8-1,125, and amendments thereto, the division of vehicles shall furnish to every owner whose vehicle shall be registered one license plate for such vehicle. Such license plate shall have displayed on it the registration number assigned to the vehicle and to the owner thereof, the name of the state, which may be abbreviated, and the year or years for which it is issued.The same type of license plates shall be issued for passenger motor vehicles, rented without a driver, as are issued for private passenger vehicles.

8-133.
. . .
(c) Every license plate shall at all times be securely fastened to the vehicle to which it is assigned, to prevent the plate from swinging, and at a height not less than 12 inches from the ground, measuring from the bottom of such plate. The license plate shall be fastened in a place and position to be clearly visible, and shall be maintained free from foreign materials and in a condition to be clearly legible.

I just cannot see how those three statutes, when taken together, do not require license plates to have a state name, and that such state name be both clearly visible and clearly legible.

After reading the opinion many times, I remain in the camp of every state and federal judge in Kansas who has for 42 years thought those statutes were pretty clear as to the intent of the Kansas Legislature.

That all said, please record my dissent.

Colin

State v. Brian Beck No. 126,350

Mon, 07 Jul 2025 21:02:33 GMT

Heads Up: Kansas officers may no longer stop cars solely for obstruction of a state name on a license plate!

Overturning decades of lower court decisions and law enforcement understanding, on July 3, 2025 the Kansas Supreme Court held that the inability to read the state name on a vehicle license plate is not a Kansas state traffic law violation.

In 2021, Illinois resident Brian Beck was stopped in Kansas when a deputy observed Beck’s vehicle displaying a license plate frame that partially obstructed the state name “Illinois” on Beck’s tag. During the stop a dog alerted to the odor of illegal drugs, the car was searched, and Beck was charged with multiple violations including transporting over two pounds of methamphetamine.

In the district court, Beck moved to suppress the evidence from the car arguing that the deputy had not had reasonable suspicion of a traffic crime to support the initial car stop. The trial judge, citing to past caselaw, denied the motion. Beck appealed and a panel of the Kansas Court of Appeals affirmed. Beck then asked the Kansas Supreme Court to review his conviction and it agreed.

Days ago, the Kansas justices reversed. Yes, they said, K.S.A. 8-133 has been around since 1929. And, yes, they said, lower state and federal courts have since 1983 all agreed that obstruction of the state name on a vehicle tag in Kansas was a violation of K.S.A. 8-133(c). However, they said, all of those courts were wrong.

K.S.A. 8-133(c) states in pertinent part, “ . . . The license plate shall be fastened in a place and position to be clearly visible, and shall be maintained free from foreign materials and in a condition to be clearly legible. . . “ But, after review of K.S.A. 8-132(a), 8-147, and 8-149, the justices could find no Kansas law that required that the state’s name be displayed on the license plate itself (Kansas law only requires that the annual registration sticker have “Kansas” or an abbreviation). So, the justice said, how in the world could the obstruction of tag information not required by law be a violation of K.S.A. 8-133(c)?

The justices further held: 1) that since Kansas does not require “Kansas” to be on its license plates, it follows that it is also not a Kansas traffic violation to obstruct other state names on out-of-state tags; and, 2) K.S.A. 8-133(c) is not unconstitutional, it has simply been misread by everyone in the world, and thus officer good faith in Beck’s case is inapplicable. So, the justices sent the case back to the trial court to reevaluate the suppression issue based upon their decision.

A couple of final thoughts:

because the holding is at its heart a state law interpretation, the State will probably not be able to appeal to the U.S. Supreme Court. Therefore, for everyone except Beck, the matter is settled unless and until the Kansas Legislature would amend K.S.A. 8-133 to require the state name on license plates (in addition to the current requirement on annual registration stickers).
as for Beck and his pending criminal case, the Kansas justices apparently did not consider Heien v. North Carolina, 574 U.S. 54 (2014). There the U.S. Supreme Court held that “an officer's error of law in stopping a vehicle for a violation of N.C. Gen. Stat. § 20-129(g) because one of its two brake lights was out was objectively reasonable, thereby justifying the stop, where the statute had not previously been construed by North Carolina's appellate courts, and under the language of the statute, it was reasonable to conclude that the use of the word ‘other’ meant that the rear lamps discussed in N.C. Gen. Stat. § 20-129(d) included brake lights.”

That sure sounds a lot like Beck’s case. Hopefully, when the trial court gets Beck’s case back for further review of the suppression, it will take into consideration that Big Court 2014 mistake-of-law decision.

Colin

United States v. Maytubby, 130 F.4th 1194 (10th Circuit 2025)

Wed, 04 Jun 2025 16:53:15 GMT

The following summary is from 5 Informer 25 (authored by the Legal Division staff of DHS at the Federal Law Enforcement Training Center):

United States v. Maytubby, 130 F.4th 1194 (10th Circuit 2025)

A police officer interviewed Lance Maytubby at the police station regarding allegations of sexual abuse made by Maytubby’s nieces R.L. and Z.L. The interview, which was recorded on the officer’s body camera, took place in the break room at the police station with the dooropen. The officer told Maytubby that he did not have to talk, that he was not under arrest, and that he could leave at any time.

After Maytubby denied the allegations, the officer told him the two nieces’ stories were “dead-on similar,” and that the accusations had “stuff to back it up.” The officer then suggested that an “excuse” might explain what had happened, something like a mental-health issue, drinking, or drug use, but Maytubby continued to deny the accusations.

About a minute later, the officer told Maytubby that he needed to deliver an investigation report to the district attorney. He told Maytubby that he wanted the report to include all mitigating circumstances, like that Maytubby was a pastor who had made a mistake, had long been a “working man” and “family man,” and had just “acted out of character.” The officer reiterated he wanted to report that Maytubby made a mistake and that he was not “any kind of predator,” and that the behavior “hasn’t happened since.”

After he continued to deny the accusations, the officer explained that Maytubby’s denials put him in a difficult spot in reporting to the district attorney. The officer reminded Maytubby that he was not required to speak to him, and he reassured Maytubby that he was not going to arrest him that day. However, the officer also stated that his desire to include mitigating information in the investigative report depended on Maytubby’s admitting his sexual contact with his nieces. The officer told Maytubby, “I can’t help you out if you’re not honest to me, I just can’t. I can’t go in there and say, ... ‘Hey, he manned up. This is how it is. The guy acted out of character.’” Maytubby then told the officer that he wanted to go home, and the officer replied, “Okay.” A few seconds later, Maytubby confessed to sexually abusing his nieces.

The government indicted Maytubby for several sexual abuse-related offenses. Maytubby filed a motion to suppress his interview statements as involuntary, arguing that the officer’s coercive tactics overbore his will. The district court denied the motion. Upon conviction, Maytubby appealed.

The Fifth Amendment guarantees that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” For an incriminating statement to be voluntary, it must not be “the product of coercion, either physical or psychological.” Coercion may take the form of “acts, threats, or promises which cause the defendant’s will to be overborne.”

First, the court determined that the fact that the interview lasted less than thirty minutes, the tone of the interview was conversational, the interview occurred in a break room with the door open, and the interview included no physical punishment weighed in favor of finding a voluntary confession.

Next, the court found that the officer’s offer to include mitigating facts in his investigative report to the district attorney if Maytubby admitted his nieces’ accusations were proper. The officer never implied that he had control over the sentence Maytubby might receive but instead made general statements to Maytubby about the benefit of cooperating, which has repeatedly been held to be a permissible interrogation tactic. Based on these facts, the court concluded that Maytubby’s statements were voluntary as none of the officer’s statements were coercive, and Maytubby’s will was not overborne.

For the court’s opinion: https://cases.justia.com/federal/appellate-courts/ca10/23-7084/23-7084-2025-03-18.pdf

~ Colin

Barnes v. Felix, No. 23-1239 (605 U.S. ____ (2025))

Wed, 04 Jun 2025 16:44:56 GMT

To increase the number of interesting cases available here, I have decided to start using a few case summaries written by trusted authors outside of Kansas. I intend to continue writing on Kansas cases as time permits, but hopefully these additions will be worth your time too.

The following summary is from 5 Informer 25 (authored by the Legal Division staff of DHS at the Federal Law Enforcement Training Center)

A United States Supreme Court case handed down May 15, 2025:

Barnes v. Felix, No. 23-1239 (605 U.S. ____ (2025))

Officer Roberto Felix, Jr. conducted a traffic stop on Ashtian Barnes after hearing a dispatch from Harris County Toll Road Authority relaying the license plate number of Barnes’ vehicle as one with outstanding toll violations, and Felix subsequently saw the vehicle and matching plates on the Tollway. After Felix engaged his emergency lights, Barnes pulled off the road into the median on the left-hand side of the Tollway. After parking his patrol vehicle behind Barnes’ Toyota Corolla, Felix walked to the driver’s side window and requested Barnes’ driver’s license and proof of insurance.

Barnes claimed that he did not have the requested documentation and informed Felix that the Toyota had been rented a week earlier in his girlfriend’s name. During the discussion, Officer Felix saw Barnes moving in the vehicle and told him to stop “digging around.” Felix also stated that he smelled marijuana and inquired if there was anything in the vehicle Felix needed to know about. Barnes stated that the documentation that Barnes requested “might” be in the trunk of the vehicle.

At this time, Felix ordered Barnes to open the trunk. While this was taking place, the left turn signal continued to flash. As the trunk to Barnes’ Toyota opened, the left turn signal stopped flashing. Felix then ordered Barnes to step out of the vehicle, and the door could be seen beginning to open. At that point, the left turn signal began to flash again. As the signal began to flash again, Officer Felix ordered Barnes to stop moving and pointed his pistol at him. The Toyota moved forward and Officer Felix stepped onto the door sill. While the automobile continued driving forward with Officer Felix hanging on, Felix fired at least twice into the vehicle at Barnes. After a short distance, the Toyota came to a stop. Barnes was pronounced dead at the scene approximately eight minutes later.

On appeal to the Fifth Circuit, the court reviewed whether Felix “was in danger at the moment of the threat that caused him to use deadly force against Barnes.” Since Felix was hanging on to the side of an accelerating vehicle at the moment he fired his weapon, the Fifth Circuit determined that he did not violate Barnes’ Fourth Amendment rights and, therefore, affirmed the district court’s finding of summary judgment for Felix.

However, in a concurring opinion, the Fifth Circuit stated that the moment-of-threat doctrine overly limited their ability to determine whether an officer’s use of force was reasonable. Citing Scott v. Harris, which states that a Fourth Amendment analysis is a “factbound morass of reasonableness” by necessity, the Fifth Circuit claimed that they are deprived of potentially relevant facts at the expense of human life.

In the case of Barnes, the facts that the initial crime was driving with an outstanding toll fee, that Felix jumped into the door sill of the moving vehicle, and that Felix fired within two seconds are a collection of facts that “merits finding that Officer Felix violated Barnes’ Fourth Amendment right to be free of excessive force.” Based, in part, on this concurring opinion, Barnes’ estate appealed this decision to the U.S. Supreme Court. A Writ of Certiorari was granted in this case and oral arguments were heard on January 22, 2025. Specifically, the question before the Court was whether the framework of objective reasonableness under Graham v. Connor and its analysis of the “totality of the circumstances” allows courts the ability to limit their review solely to the moment of the threat when evaluating a use of force case.

Published on May 15, 2025, the Court held that the moment-of-threat doctrine applied by the Fifth Circuit is an “improperly narrowing” approach to reviewing the lawfulness of an officer’s use of force. To properly review such claims, a court must assess any and all of those relevant facts, including those events and circumstances that led up to the final moment, instead of merely focusing on the officer’s perceptions of the threat at the precise moment that force was applied.

According to the Court, the constitutionality of an officer’s use of force is evaluated under the Fourth Amendment. Under Graham, this seizure is analyzed “from the perspective of a reasonable officer on scene” at the moment force is applied. The analysis also takes into consideration the balance of the individual’s Fourth Amendment interests against those governmental interests present in the totality of circumstances. Of interest, the Court highlighted that the review of the totality of the circumstances does not have any sort of time restraints, and that those facts “cannot be hermetically sealed off from the context in which they arose.”

The Court recognized that a suspect’s conduct is “always relevant,” as it points to both the type and degree of threat a suspect represents. However, the Court identified a number of other categories of facts that are not as time sensitive, but still relevant to the totality of the circumstances. Officers’ attempts to control the encounter or otherwise give warnings may be relevant. The severity of the crime can also be given weight by the reviewing court. The Court acknowledged that “historical facts” will typically carry less relevance than those facts that are derived “in-the-moment,” but stated that there is no legal ruling that forbids a court from considering those historical facts. The Court further acknowledged that the totality of circumstances cannot be viewed with such “chronological blinders” in place.

A secondary question, however, was left unaddressed. The Court stated that the lower courts never addressed whether, or how, a dangerous situation created by the officer’s own actions would be considered within the framework of objective reasonableness. This question was not before the Court and, therefore, was not taken up by the Court.

In a concurring opinion authored by Justice Kavanaugh, he mentioned some of the legal considerations that make up the totality of the circumstances regarding traffic stops and pursuits. Primarily, Kavanaugh’s opinion focused on highlighting that the underlying traffic violation might suggest a lesser threat. However, flight and the suspect’s reasons for flight may often suggest a much higher type of threat than the traffic violation itself. Therefore, any evaluation of the totality of the circumstances for a use of force related event is incomplete if it does not take into account what actions the suspect made in their attempts to flee.

For the court’s opinion: https://supreme.justia.com/cases/federal/us/605/23-1239/case.pdf

~Colin

State v. Nicholas George No. 126,414

Tue, 08 Apr 2025 20:06:34 GMT

A panel of the Kansas Court of Appeals recently reviewed an interesting DUI case involving reasonable suspicion for a “stop” on private property, and whether the 20-minute KDHE deprivation period had been violated.

Two bicycle officers in a university off-campus recreation area heard loud talking and laughter coming from a car parked at a convenience store. As the officers got closer to the car both could see the driver drinking what appeared from the shape of the bottle and the “distinctive color” of the liquid to be a beer. The officers were going to make a voluntary contact but before that could happen the car shifted into gear. That changed things for the officers.

One officer hollered at the driver to stop, and the other officer positioned himself behind the car with his bicycle emergency lights on. The driver and the car stayed. Because of that command, the red/blue lights, and the driver’s yield, the 4th Amendment required the officers to have had reasonable suspicion that a crime had been, was, or was about to be committed. A DUI investigation followed, and Nicholas George was arrested. Two suppression hearings and a trial on stipulated facts resulted in George being convicted.

On appeal, George argued first that the officers did not have reasonable suspicion of transporting an open container because: 1) the bottle and liquid could have been something other than beer; and, 2) even if there was reasonable suspicion for it having been beer, at the time the officers contacted the car the car was still on private property. George’s second argument was that at the end of George’s later 20-minute deprivation period the officer administering the test noticed that the officer’s radio was on which might cause a radio frequency error. The officer decided to restart the test but only waited an additional 14 minutes.

The appellate panel held that “[w]hile George argues that he could have been drinking a nonalcohol beverage, that possibility alone does not diminish the reasonable suspicion standard. To show reasonable suspicion for a stop, the State need not rule out the possibility that the suspect is engaged in innocent behavior.” In other words, an officer does not have to be right, the officer only needs to be reasonable. And here is the good part: “George also argues that K.S.A. 8-1599, the statute regulating open alcohol containers in moving vehicles, only prohibits such conduct on public roads. He argues that he could legally drive his truck in a parking lot with an open container of alcohol. But the undisputed evidence of George shifting his vehicle into gear created a reasonable and common-sense inference that he intended to drive out of the parking lot and onto a public street. The reasonable suspicion standard applies to an officer’s reasonable belief that a suspect is committing or is about to commit a crime.” Is that great or what?

As for the deprivation period issue, the panel said “[l]ogically, the argument is a nonstarter. Without finding that the 20-minute deprivation period was compromised, there would be no reason to restart the clock. George received a 34-minute deprivation period when the time was combined, which [more than] satisfied KDHE protocol for a minimum 20-minimum period.” In other words, the radio frequency error did not compromise the real issue of whether George had ever placed anything into his mouth during the first 20 minutes.

~Colin

Ronnie Hickles v. KDOR No. 126,958

Sat, 04 Jan 2025 20:25:46 GMT

A panel of the Kansas Court of Appeals recently held that officers may not rely solely on an Intoxilyzer 9000’s mouth alcohol detector to confirm that no residual alcohol remains in a suspect’s mouth at the end of a deprivation period.

In 2021, a PBT reading of 0.109 resulted in the arrest of Ronnie Hickles. At the station the arresting officer began the Intoxilyzer 9000 protocol. Hickles was instructed to swish his mouth with water, the testing officer confirmed that Hickles’ mouth was empty, a timer was set for the 20-minute deprivation period, and Hickles was told that putting anything into his mouth, burping, or hard coughing may well bring alcohol into his mouth and compromise the test.

During the deprivation period Hickles burped twice and though there was some discussion about the burps, the testing officer did nothing further. The breath test was administered, the Intoxilyzer 9000 did not indicate any residual alcohol in Hickles’ mouth, and the test result was 0.107. The testing officer commented that the decrease from the PBT to the Intoxilyzer 9000 was not as much as the officer had anticipated. KDOR suspended Hickles’ drivers license for a year, a district court later agreed with KDOR, and Hickles appealed.

This week, the Court of Appeals reversed the suspension. The main question before the Court was whether the testing officer “substantially complied” with the KDOR governing protocol when the officer did not respond to Hickles’ multiple burbs, instead simply relying on the Intoxilyzer 9000’s internal residual alcohol alert warning system. The judges agreed 3-0 that the officer did not. The officer should have done more. In other cases officers had verbally inquired of the test subject whether anything had entered their mouth or if uncertain restarted the protocol and deprivation period.

The panel stated: “As it stands, the KDHE’s protocol requires investigating officers to keep the testing subject in their immediate presence and deprive him or her of alcohol for the 20- minute period immediately preceding the breath test. The fact the Intoxilyzer 9000 did not alert to the presence of mouth alcohol is of no moment and is therefore insufficient to demonstrate that [the officer] substantially complied with the KDHE protocol.”

Maybe KDOR will ask the Kansas Supreme Court to weigh in (but a 3-0 panel vote below can frustrate that effort), or maybe KDHE can adjust their protocol, or maybe KDOR could find and litigate a case to allow for a better showing of the accuracy of the Intoxilyzer’s mouth alcohol alert equipment.

However, and assuming that none of that can happen: in the case of a suspect that for whatever reason continues to burp or cough during a deprivation period then the testing officer should think seriously about seeking a blood search warrant.

~ Colin

HOW TO WIN AND LOSE AT THE SAME TIME - United States v. Dennys Rodriguez

Tue, 22 Oct 2024 11:19:33 GMT

(Originally printed in Kansas Sheriff magazine, Fall, 2024; provided to KPOA with permission)

"Karma has no menu; you get served what you deserve.”
K.L. Slater

Late one evening in 2012, a Valley, Nebraska K-9 officer stopped for a traffic offense a Mercury Mountaineer driven by Dennys Rodriguez. At the end of the car stop, the officer asked Rodriguez for permission to walk the K-9 around the SUV. Rodriguez said no. Not deterred, the officer deployed his dog, and the dog alerted to the odor of controlled substances coming from the Mountaineer. During a subsequent search, a large amount of methamphetamine was found.

Rodriguez was charged in federal court where he attempted to suppress the search arguing that the officer did not have reasonable suspicion to continue the temporary detention for the dog sniff.

Following a hearing, the trial court held that under 8 th Circuit law the continued detention of drivers was “not constitutionally prohibited [as long as] they [the detentions] constitute only a de minimis intrusion.” Since the dog sniff only took about 8 extra minutes, the continued detention of Rodriguez without consent or reasonable suspicion was found “not of constitutional significance.” Rodriguez was convicted and sentenced to a lengthy period in prison. On appeal, the federal 8 th Circuit Court of Appeals affirmed the conviction.

Since in 2012 other federal circuit courts did not recognize the so-called “de minimis” rule of detention, Rodriguez asked the U.S. Supreme Court to resolve the split among the lower courts. And, in 2015, the Big Court held that there was no such thing as a “de minimis” amount of time a driver can be held for a dog sniff. Without consent or reasonable suspicion of other criminal activity, drivers are to be released as soon as an officer has completed the car stop’s “mission.” That “mission” is the enforcement action arising from the original traffic offense.

The Big Court vacated the 8 th Circuit’s judgment, and the case was “remanded for further proceedings consistent with” the opinion. Rodriguez had won the battle, but he quickly learned that he had actually lost the war.

A few months later when Rodriguez appeared for the remand hearing in the 8 th Circuit, he confidently argued that because the Big Court had agreed with him that the car stop was a constitutional violation, then the Exclusionary Rule should be invoked to suppress from evidence the seized methamphetamine. In other words, the Court should let him go.

The government, however, reminded the appellate court that just four years earlier, in a different case, the Supreme Court had said about the Exclusionary Rule: “The Fourth Amendment protects the right to be free from unreasonable searches and seizures, but is silent about how this right is to be enforced. To supplement the bare text, the U.S. Supreme Court has created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of the Fourth Amendment violation.”

“Exclusion [of evidence] is not a personal constitutional right, nor is it designed to redress the injury occasioned by an unconstitutional search. The rule’s sole purpose is to deter future Fourth Amendment violations. Where suppression fails to yield appreciable deterrence, exclusion is clearly unwarranted.”

“Responsible law-enforcement officers will take care to learn what is required of them under Fourth Amendment precedent and will conform their conduct to these rules. But by the same token, when binding appellate precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An officer who conducts a search in reliance on binding appellate precedent does no more than act as a reasonable officer would and should act under the circumstances. The deterrent effect of exclusion of evidence in such a case can only be to discourage the officer from doing his duty.”

So, what did all that mean? It meant that the K-9 officer was acting in good faith by following the 8 th Circuit’s “de minimis” law as it was on the day of the car stop. Since what the officer did was reasonable, then suppressing the methamphetamine would not and could not act as a deterrent to any police misconduct. Rodriguez was out of luck. He could not personally benefit from the Big Court’s 2015 change in the law that he had brought about.

Rodriguez had won big in the United States Supreme Court, but in the end, he went to prison anyway.

Additional reading see: United States v. Rodriguez, 575 U.S. 348 (2015)[Big Court decision]; U.S. v. Rodriguez, 799 F.3d 1222 (8 th Cir. 2015)[on remand decision]; and, Davis v. United States, 564 U.S. 229 (2011)[exclusionary rule].

Amir v. Kansas Department of Revenue (No. 126,162)

Wed, 28 Aug 2024 11:14:56 GMT

The Kansas Court of Appeals last week handled an interesting K.S.A. 8-1001(p) “medical exception to an evidentiary breath test” case. The substance of Amir’s 18-page appellate opinion is not important here, but the suggesting of a best practice under the all-to-familiar circumstances might be.

K.S.A. 8-1001(p) can be a defense to a test refusal: “Failure of a person to provide an adequate breath sample or samples as directed shall constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs.”

David Amir was the subject of a DUI investigation. When requested, he refused a breath test claiming that he was being medically treated for both asthma and COVID, and thus was unable to provide the breath volume required. Though confusing in the court’s opinion, Amir then either requested and was refused a blood test, or it was Amir that was asked to take a blood test and he refused. No matter. Ultimately, no consent testing of any kind was done, the officer filed a test refusal with KDOR, KDOR suspended Amir’s drivers license, Amir appealed to the district court, court hearings were held, the district judge affirmed the DL suspension, Amir appealed to the state court of appeals, and that court has now affirmed the DL suspension.

The point here is: (and assuming that there was no unstated reason not to) had the officer sought a blood search warrant, much of that time-consuming legal back and forth would never have been necessary.

K.S.A. 8-1001(a) says, “(a) Any person who operates or attempts to operate a vehicle within this state may be requested, subject to the provisions of this article, to submit to one or more tests of the person's blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing shall include all quantitative and qualitative tests for alcohol and drugs. The test must be administered at the direction of a law enforcement officer, andthe law enforcement officer shall determine which type of test is to be conducted or requested.

And, K.S.A. 8-1001(f) states, “ Nothing in this section shall be construed to limit the right of a law enforcement officer to conduct or obtain a blood or urine test of a person pursuant to a warrant under K.S.A. 22-2502, . . . ”

So, when Amir refused to consent to a breath test for whatever reason, the officer could have sought a search warrant, had the blood drawn involuntarily, submitted the evidence for testing, and the prosecution and KDOR would have had Amir’s alcohol level results available. Instead, way too many attorneys were paid to express their opinions about the validity of Amir’s health arguments concerning giving a voluntary breath sample.

Bottom line: with very few exceptions, all breath test refusals should immediately result in blood search warrants being sought and executed.

~ Colin

Summary of the 2024 Changes in Kansas Asset Forfeiture Law

Fri, 31 May 2024 11:14:45 GMT

More changes are coming to the state’s civil asset forfeiture act. Senate Bill 458 was passed almost unanimously near the end of the legislative session and the Governor has since signed the bill into law.

Proponents of the bill would call the amendments overdue improvements to a generally broken public policy. Law enforcement agency administrators will probably view the statutory amendments as unnecessarily making recovery of criminal proceeds even more difficult. In some cases, probably impossible.

Other than a few “statutory language clean up” provisions, the following are the 2024 changes effective July 1:

The list of crimes to which forfeiture applies (“covered crimes”) has been reduced. Simple possession of controlled substances will no longer be a forfeitable offense. The controlled substance offenses that remain “covered crimes” are K.S.A. 21-5703; 21-5705; 21-5707; 21-5708(b); 21-5709(a), (b), (c), and (d); 21-5710, 21-5713(a), 21-5714 and 21-5716.

All other “covered crimes” listed in K.S.A. 60-4104 remain unchanged. This change will probably affect the total number of small cash cases filed. Forfeiture opponents call these smaller cases “rent money” seizures.
Protection from gross disproportionality (a small crime resulting in a large property forfeiture), always an 8th Amendment violation, has been in the Kansas forfeiture law since 1994. The 2024 “reform” has simply highlighted the protection by reminding the court and parties in multiple statutory sections of the existing protection. Even though the factors to be reviewed by a judge have been amended, there is little practical change other than the argument may arise earlier in the litigation. Because constitutional case law holds that it is only upon a final forfeiture order that a court may reasonably entertain an 8th Amendment challenge, the practical effect of this change is small.
Seizing agencies will now have 14 days, down from 45, to find and employ a forfeiture attorney to handle the seizure. A violation of that timeline will require release of the property, but the claimant will act as a court trustee of the property and the State can still file the case. A best practice would be to have a forfeiture attorney already identified.
Federal adoption of local and state seizures has been narrowed, but there are reasonable exceptions and agencies should still be able to obtain federal assistance in larger or complex cases. The following are the exceptions to the federal adoption ban: seizures by joint task forces, or during a joint state-federal investigation; or when combined with a request for federal adoption of the parallel criminal case; or when a federal seizure warrant is involved; or any property involving a serious public safety concern; and, lastly, when the seized property is valued at more than $25,000.00.
At seizure, officers may not “request, induce or otherwise coerce” a person who has asserted a right to the seized property to waive that right. That would mean that once a person has told an officer that the seized property belongs to them, the officer may not attempt to persuade them differently. That may be a rare occurrence, but administrators should probably review any waiver forms that their agency employs to confirm that the form does not contain such a waiver request. By its plain language, the change does not prevent officers from asking preliminary questions about true ownership of the seized property like owner names, addresses, and associations to the seized property.
After the filing of a civil forfeiture action in court, but before any other litigation, a judge will need to review the seizing agency’s affidavit and to make a formal finding of probable cause for the seizure. A claimant may later challenge the judge’s probable cause finding.
Should there be a parallel criminal case on file when the civil forfeiture action is brought, then there will now be an automatic stay of the forfeiture pending resolution of the parallel criminal case. However, a judge may upon good cause lift the stay.
The State’s burden of proof has been raised from “preponderance of the evidence” to “clear and convincing” evidence.
Known as “fee shifting,” and in addition to releasing the property, a seizing agency will now be ordered to pay to a successful claimant their attorney fees, litigation costs, post judgment interest, and any interest gained by the property during the litigation. There is no good faith exception. A successful claimant (with some exceptions) is a person that recovers “at least half of the aggregate value of the claimant’s interest” in the seized property. Provided there are funds available, the payment can be made from the seizing agency’s state forfeiture fund. If that is insufficient, then the seizing agency will be required to pay those costs from another agency fund. Administrators should realize when evaluating future cases that in the past there have been highly-litigated federal forfeiture cases reported where the government has been ordered to pay claimants tens, and even hundreds, of thousands of dollars in attorney fees and costs.

Bottom Line: It is recommended that administrators review their forfeiture guidelines and think through these upcoming changes in forfeiture law. What will be difficult for the command staff will be forecasting individual cases that appear strong at seizure, only to go south at trial for a reason beyond the seizing agency’s control. Those cases will be the expensive ones after July 1.

Colin

The Emergency Aid Doctrine: State v. Jessica Dixon

Sun, 05 May 2024 13:59:11 GMT

A few years ago, a Kansas police officer entered a local convenience store for a drink when an employee called to him about an unconscious woman on a bathroom floor. Although the officer did not know it at the time, the store had already called for an ambulance. The officer entered the small bathroom and saw an unknown woman on the floor, a hypodermic needle and a purse nearby. No one else was present. The woman appeared to be semi-conscious but she was unable to respond to the officer’s questions, including questions about her identity and what substance that she may have taken. The officer thought that if he could identify the woman that he might be able to run her name through dispatch and find whether she had a history of medical or drug abuse issues. The officer intended to provide that information to the then-arriving paramedics.

The officer decided to look inside of the purse for any form of identification. While looking, the officer found a sock. The officer felt an object inside the sock that, based upon his experience, he recognized as a drug smoking pipe. The officer told paramedics that they may well be dealing with a drug overdose.

The officer continued to look for identification in the purse and when it was found the officer immediately relayed the name to dispatch. He then opened the sock, finding a smoking pipe and “crystal-type meth crystals.” The searching officer provided the information and the purse to a second officer that had arrived with the ambulance crew. The second officer then went outside to give the woman’s name to paramedics who had by that time moved the woman to the ambulance in the parking lot. The entire incident took about seven minutes.

The woman was identified as Jessica Dixon, and based upon the search she was later charged in state court with possession of methamphetamine and drug paraphernalia. Dixon complained to the trial judge that the search of her purse was illegal because the officer did not have her consent, did not have a search warrant, and that no exception to the warrant rule existed under the facts of her case. The trial court denied suppression finding that the search of the purse fell under the emergency aid exception to the warrant rule, that the discovery of the sock was inadvertent, and that the illegal nature of the items inside of the sock was immediately apparent to the experienced officer. Dixon was convicted and appealed. In January of this year, four years after the incident, a panel of the Kansas Court of Appeals agreed with the trial court and held as follows.

Under both the federal and state Constitutions, warrantless searches and seizures by law enforcement officers are deemed unreasonable and invalid unless a recognized exception to the warrant requirement applies. The “emergency aid” exception applies when a law enforcement officer is aiding a person who is “seriously injured or imminently threatened with serious injury.” That warrant exception is usually associated with a warrantless entry into a home when officers are aware of a fight or otherwise are checking the welfare of a resident. However, the panel held that the exception would apply to Dixon’s situation too.

The Kansas Supreme Court has previously held that the emergency aid exception gives an officer only limited authority to “do no more than is reasonably necessary to ascertain whether someone is in need of assistance and to provide that assistance.” So, there are two initial questions to be answered about whether the exception should apply. First, does the officer reasonably believe that a person is in need of immediate assistance? If the answer is yes, then officers should remember that the authority to search will immediately terminate once the officer confirms that no one needs assistance, or when the necessary assistance has been provided. All searches under the exception are required to be “reasonably tailored to an officer’s attempts to aid the victim.”

With all of that in mind, in this case the officer had an objectively reasonable basis to believe that Dixon was seriously injured because she was on the floor and was unresponsive to his questions. The manner and scope of the search was also reasonable: the officer had acted immediately to aid Dixon, not only in communicating with her but in confirming that paramedics were enroute. While waiting for the paramedics, the officer searched the purse for identification and other information that would have directly assisted the arriving medical personnel.

Dixon argued that once the paramedics were on scene that the officer should have stopped searching. But, the appeals panel said that there is no bright-line rule that law enforcement is no longer expected to be a part of the continuing medical aid. The public policy behind the emergency aid exception is the need to protect life, and that such protection sometimes outweighs a person’s right to privacy. So, looking into the purse for identification and inadvertently finding the sock was justified.

But, what about the later search of the sock itself? Was that secondary sock-search lawful too?

The panel said yes. During an otherwise lawful search [of the purse], officers who feel an object whose criminal nature is immediately apparent have probable cause to search that object under the “plain feel” doctrine.

Bottom Line: “The officer’s warrantless search of Dixon’s purse was intended to provide emergency aid by providing medical personnel information to properly render treatment to Dixon. [The officer] had an objectively reasonable belief that Dixon needed emergency assistance and the manner and scope of his search was objectively reasonable. Thus, the search was justified under the emergency aid exception [and the plain feel doctrine] and the district court did not err by denying Dixon’s motion to suppress evidence.”

For further research and understanding: Mincey v. Arizona, 437 U.S. 385 (1978); Minnesota v. Dickerson, 508 U.S. 366 (1993); State v. Dixon, No. 124,970, Kansas Court of Appeals, January 26, 2024 (unpublished); State v. Smith, 59 Kan.App.2d 28 (2020); State v. Neighbors, 299 Kan. 234 (2014)

State v. Kerrigan No. 123,862

Mon, 15 Jan 2024 12:10:18 GMT

The Kansas Supreme Court recently reversed an earlier Court of Appeals decision concerning when, during a DUI investigation, a suspect may request to speak to an attorney. That earlier Court of Appeals opinion was the subject of a November 11, 2022 Point of Law case summary.

Thomas Kerrigan had been stopped for a traffic violation, had admitted to drinking, and prior to law enforcement evidentiary testing (EBT), Kerrigan had allegedly requested multiple times to speak to an attorney but had been denied. Kerrigan submitted to the EBT but then did not renew his request to speak to an attorney. Kerrigan’s blood alcohol concentration was above the legal limit and he was charged with DUI. Kerrigan moved to suppress the EBT evidence based upon the denial of the attorney request. The trial court denied suppression, and following his conviction, Kerrigan appealed.

K.S.A. 8-1001(c)(1) states that “the person shall be given oral and written notice that . . . [t]here is no right to consult with an attorney regarding whether to submit to testing, but, after the completion of the testing, the person may request and has the right to consult with an attorney and may secure additional testing.”

A divided Court of Appeals panel held that the statutory language on the timing of a request was ambiguous and therefore an officer should honor a suspect’s request to speak to an attorney made anytime during the DUI investigation. The dissenting appeals judge, Judge Kathryn Gardner, always the voice of reason in Topeka, would have held that the statute is clear: “after the completion of testing” actually means after the completion of testing. The State asked the Supreme Court to review the panel’s divided decision.

A few weeks ago, a divided Supreme Court (yes, even the justices could not agree what the statute meant), reversed the appeals panel decision. So, officially, K.S.A. 8-1001(c)(1) is not ambiguous. The majority opinion held that “[f]or a person to properly invoke the statutory right to post-EBT counsel, the plain language of the [2018] amended statute requires the person to make a request for counsel after administration of the EBT [law enforcement testing].”

However, and not wanting to leave good enough alone, the majority opinion went on to create the legal framework for the next line of DUI appeals: that K.S.A. 8-1001(c)(1) only creates a statutory right to speak to an attorney but the Miranda warning reflects a wholly separate constitutional right to speak to an attorney. The Court then leaves us hanging. “Thus, the constitutional right to speak to an attorney upon request after a Miranda advisory is not at issue here and we express no opinion on the merits of such an argument.”

One thing is for certain: the employment opportunities for attorneys appears safe for the foreseeable future.

Abused Dogs, An Anonymous Tipster, and the Open Fields Doctrine

Tue, 17 Oct 2023 00:37:40 GMT

I do not usually report on state trial court opinions because those tend to affect only the parties in a particular case. However, the following lower court decision has a couple of teaching points that may well be useful to other officers who might find themselves in similar circumstances.

In 2022, a Kansas sheriff deputy was dispatched to a rural property on the anonymous tip of there being neglected and abused dogs. Deputies had been to the private residence before and knew it to be the location of a home and a dog breeding business. The deputy parked in the driveway, went onto the front porch and knocked on the door. No response. Believing that K.S.A. 21-6412(e) [the animal cruelty statute] gave him authority to check the welfare of animals on the property, the deputy walked to the backyard. About 75 yards from the house, the deputy found many abused dogs in multiple pens. While the deputy was at the pens, the breeder and his spouse arrived. The spouse attempted to remove one of the injured dogs. Believing that the owners were going to remove the dogs from the property, the deputy warrantlessly seized three of the most- injured dogs. Other deputies arrived, secured the property, obtained a search warrant, and sought the assistance of the state Department of Agriculture’s Division of Animal Health to help seize and care for an additional 55 dogs. The search warrant was based upon what the first deputy had observed after entering the breeder’s property.

The breeder was charged with multiple counts of animal cruelty and moved to suppress the evidence arguing that the first-dispatched deputy did not have authority to enter and search the property. There was extensive briefing by the parties and the trial court held a hearing during which multiple witnesses testified. In his well-reasoned written opinion, the trial judge answered three questions concerning the legality of the first deputy’s actions.

The State had first argued that based upon the anonymous 911 call (information that animals were then being abused and neglected) and the later possibility that the dogs would be removed from the property before a search warrant could be obtained, the deputy had both probable cause and exigent circumstances to enter and search the property. The Court disagreed.

While an anonymous tip can be used to demonstrate probable cause, more is required than just the tip itself. Tips from unidentified informants must be corroborated, accompanied by a description of the informant’s basis of knowledge, or have some indicia of reliability. Based on the evidence presented at the hearing, the trial judge held that the tipster’s basis of knowledge and reliability were completely unknown to the deputy. Additionally, the presence of abused dogs, and of them possibly being removed before a search warrant could be obtained, was known only after the deputy’s initial entry and search. So, neither probable cause nor exigent circumstances were present at the moment the first deputy entered the property.

The State next argued that K.S.A. 21-6412(e) authorized the deputy to search the property for evidence of animal cruelty. The applicable part of that statute states that, “[a]ny . . . law enforcement officer . . . may take into custody any animal, upon either private or public property, which clearly shows evidence of cruelty to animals . . .” Again, the judge disagreed. While that statute does allow for the seizure of abused animals, it says nothing about officers’ trespassing and searching to find the animals. In other words, the deputy first had to have the right to be where the deputy could observe the dogs before the statute would then authorize a seizure. So, the first deputy had no statutory authority to enter onto or to search the defendant’s property.

Lastly, the State argued that the dog pens were located outside of the curtilage of the breeder’s home and therefore the open fields doctrine should apply. The curtilage of a home is the area immediately surrounding, and directly associated with, the home. The curtilage area “harbors the intimate activity associated with the sanctity of a person’s home and privacies of life.”

“Open fields” was first recognized by the United States Supreme Court in 1924. The Big Court has said since that contrasted with those areas that a person does have a reasonable expectation of privacy, open fields “do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.”

As a practical matter, open fields are those areas accessible to the public (and therefore open to the police too) in ways that a home, an office, or commercial structure would not be. Fences and “no trespassing” signs also do not bar the public from viewing those areas. Further, an open field need not be either “open” nor a “field” as those terms are used in common speech. Therefore, “an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.”

The factors to be considered by a court when determining whether a particular location is an unprotected “open field” include: 1) the proximity of the area claimed to be curtilage to the home; 2) whether the area is included within an enclosure surrounding the home; 3) the nature of the uses to which the area is put; and 4) the steps taken by the resident to protect the area from observation by people passing by. After reviewing those factors, the trial judge held that the significant distance between the home and the dog pens, the commercial breeding operations carried on at the pens, and the lack of any curtilage-type activity near the pens all weighed in favor of the area having been an open field. Therefore, the first deputy’s entry and subsequent search of the pens was lawful. The defendant’s motion to suppress the evidence was denied.

Additional Note: Whether because the defendant was a licensed dog breeder his property was also subject to administrative inspection pursuant to K.S.A. 47-1709 was not discussed in opinion. A review of that statute, and the supporting Kansas Administrative Rule 9-18-8, indicates that the Animal Health Commissioner of the Kansas Department of Agriculture or “the commissioner’s authorized, trained representative” may administratively inspect premises without notice between 7AM and 7PM Monday through Friday. That said, even a KDOA-sanctioned inspection is subject to the Fourth Amendment. Should an administrative inspection be refused, the inspector will be required to obtain an administrative search warrant from the district court to be able to return and proceed with the property inspection. Remember that state law can never override the requirements of the Fourth Amendment. “When it comes to the Fourth Amendment, the home is first among equals.”

Additional reading see: K.S.A. 21-6412(e); K.S.A. 47-1701 et seq.; (on tipsters): Illinois v. Gates, 462 U.S. 213, 241-46 (1983) and State v. Hensley, 298 Kan. 422, 431 (2013); (on open fields): Oliver v. United States, 466 U.S. 170 (1984), United States v. Dunn, 480 U.S. 294, 304-05 (1987), and State v. Tinsley, 16 Kan.App.2d 287 (1991); (that officers can go where the public and invitees go): Florida v. Jardines, 569 U.S. 1 (2013).

U.S. v. Batara-Molina No. 21-8079

Sat, 12 Aug 2023 10:30:45 GMT

The 10th Circuit Court of Appeals recently upheld three reasonable suspicion factors consistently used in criminal interdiction investigations, while at the same time tossing overboard five lesser ones.

In the seminal 2015 traffic stop case of Rodriguez v. United States, the Big Court said that a seizure for a traffic violation justifies a police investigation of that violation. An officer’s authority to seize a vehicle’s occupants ends, however, when tasks tied to the traffic infraction are--or reasonably should have been—completed. Even so, it is permissible for an officer to conduct certain unrelated inquiries during the stop but the unrelated inquiries may not prolong the traffic stop unless the officer has reasonable suspicion of additional criminal activity. Even de minimus (trifling or of little importance) delays caused by inquiries unrelated to the original reason for the stop violate the Fourth Amendment in the absence of reasonable suspicion. In fact, the point in time that a stop is prolonged such that reasonable suspicion of another crime is required is now known as the “Rodriguez Moment.”

In this case, two Wyoming sheriff deputies stopped for a traffic offense a rental car driven by Ian Batara-Molina (Molina). One of the deputies was a dog handler, and during the event the dog was deployed. The dog alerted to the odor of controlled substances coming from Molina’s car and on a warrantless probable cause search 14 pounds of methamphetamine were found in the trunk. Molina was charged in federal court and he asked that the drugs be suppressed because the car stop was prolonged without reasonable suspicion. After a hearing, the district court held that 1) the dog sniff occurred during the original traffic enforcement action, and 2) even if the car stop had been prolonged, the officers had reasonable suspicion of additional criminal activity giving them extra time for the dog sniff. Molina was convicted and appealed.

Interestingly, on appeal the assigned judge panel did not take up whether or not the dog sniff occurred during the original traffic stop. Instead, the panel simply assumed that the car stop had been prolonged for a drug investigation and dog sniff requiring reasonable suspicion. Assumptions like that are not necessarily unusual on appeals as it tends to signal that the government is about to win on the true question in the case.

The officers had testified to eight facts from the event that they believed added up to reasonable suspicion and thus authorized the officers to prolong the stop: 1) an unknown but “overwhelming” odor coming from the vehicle’s interior; 2) Molina’s mispronunciation of “Sioux Falls,” as his destination; 3) the car had been rented by a third-party who was not present in the car; 4) the rental agreement was expiring; 5) Molina had spent the previous night at a gas station instead of a hotel; 6) there was a vape pen in the car; 7) the car’s back seat contained no luggage; and 8) Molina was traveling from California, a drug source state. The district court had accepted all of those factors.

The appeals panel reviewed those eight factors and immediately tossed as not at all suspicious the following five: Molina’s mispronunciation of the name of Sioux Falls since it was a city in which he did not live; Molina staying the night at a gas station since many travelers of modest means sleep in their cars; a vape pen in the car because it is too common of an item and could be found in the vehicle of “any innocent traveler” (noting that there may be other circumstances where there could be evidentiary value to a vape pen); seeing no luggage in the back seat of a car with a trunk when most travelers place their luggage in the trunk (it might be different if a car did not have a trunk); and, that Molina was from a drug source state [California] because the majority of the states have now legalized marijuana it is no longer reasonable to believe that there are particular drug source states.

That left before the panel only the facts of an overwhelming “cover” odor, a third-party rental, and the details surrounding an expiring rental agreement.

Odor: it is well-established that a strong odor may be used in establishing reasonable suspicion because drug traffickers use masking to hide the odor of drugs. Further, officers need not identify the particular odor as it is enough that the odor was overwhelming.

Rental Car/Third-Party: even though the use of a rental car alone does not contribute to reasonable suspicion, the fact that a rental was made by a third-party is consistent with the behavior of drug traffickers.

Expiring Agreement: to make a long trip only to stay at the destination for a short amount of time is also consistent with the behavior of a drug courier. But, because rental agreements can be extended from the highway, the national case law is mixed. This panel gave weight to the fact that the deputies here had questioned Molina about the imminent expiration and that Molina’s response was found wanting. Molina said that he planned to extend the agreement for one day, but the deputies reasonably believed that a one-day extension was still suspicious because of the enormous travel time involved.

The appellate panel held that the overwhelming cover odor, the third-party rental, the unusual details of the rental terms versus the travel time, and because a court is to give deference to an officer’s ability to distinguish between innocent and suspicious actions “just barely supported” reasonable suspicion. The prolonged car stop and the resulting dog sniff did not violate the Fourth Amendment.

ROJAS V. CITY OF OCALA

Mon, 01 May 2023 15:55:16 GMT

A Story of a Chief’s Decision, the Establishment Clause, and Spending a Bunch of Taxpayer Money

The First Amendment to the United States Constitution holds that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Through the Fourteenth Amendment, the First Amendment also applies to the states and to their municipalities.

In 2014, following a series of serious and violent crimes in Ocala, Florida, the police chief met with members of the Ocala faith-based community to seek their help in convincing witnesses to cooperate. In what was later described by the federal district court as “no doubt well-intentioned and sincere” efforts, the police chief and his department then sponsored a prayer vigil in the town square. The sponsorship included on-duty planning meetings, a written invitation on department letterhead for citizens to attend the vigil, placing the invitation on the department’s Facebook page, and on-duty personnel creating a separate flyer which depicted a photo of the town square site with praying hands in one corner and the department’s logo in the other.

After the invitation was broadcast, but before the vigil, some concerned citizens contacted the police chief and mayor concerned that “a prayer vigil organized by a police department would violate the U.S. Constitution. When a second citizen questioned what that citizen perceived to be the police chief’s endorsement of religion, the mayor responded that he intended to praise the chief for it. Another citizen responded on the department’s Facebook page (that the federal district judge later included in his opinion) that said: “why are the police asking us to pray? Will they arrest us if we don’t pray?” The police chief and mayor ultimately decided the event would not be cancelled and the police department’s sponsorship would not be transferred to a non-governmental private organization. At the vigil, four uniformed department chaplains, all of the Christian faith, were present on stage and participated in the prayer vigil.

As of March, 2023, those Ocala police efforts have resulted in a federal lawsuit, seven years of litigation, and City losses in both the federal district court and the 11th Circuit Court of Appeals. The federal trial judge was certainly clear in his decision saying, “[T]here is no dispute that these speeches [during the vigil] were religious . . . .[i]n sum, under the Establishment Clause of the First Amendment to the United States Constitution, the government cannot initiate, organize, sponsor, or conduct a community prayer vigil. That is what happened here. Yet, the same event in private hands would be protected by the First Amendment.” The court was paraphrasing Supreme Court Justice O’Connor when she said in a prior Supreme Court case, “[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” In just the last few weeks, the City requested review by the U.S. Supreme Court. The justices declined, but did send the case back down to the trial court ordering that it use a more recent test to decide the Establishment Clause question. The justices’ decision to send the case back down should add about three more years and hundreds of thousands of dollars to the litigation.

The two issues in the case remain: 1) did the plaintiffs’ have standing to sue; and, if they did have standing, 2) did the actions of the police chief and the City amount to an unconstitutional endorsement of religion. One or maybe both of those questions will finally be answered when the case gets back to the justices.

Again, there has been no final resolution. So, the reader may wonder why this article? Well, first it is to bring the litigation to the attention of agency administrators; second, that to become unnecessarily entangled in an Establishment Clause lawsuit may well cost millions of dollars in taxpayer and tort insurance carrier money; and lastly, the media coverage of the department and of the decision-makers’ private lives will seem never-ending.

One has to think that had the police chief decided instead to have a private group sponsor and plan the community-important vigil the citizen complaints would never have seen the inside of a federal courtroom. No matter the ultimate outcome of the case, agency administrators would be well-served to steer clear of issues involving the Establishment Clause because the law is anything but clear, and even winning will be quite expensive.

(First published Kansas Sheriff magazine, Spring 2023; provided here with permission)

Colin

State v. Jeremiah Orange #124,785

Fri, 10 Mar 2023 15:30:38 GMT

In 2018, Jeremiah Orange was a suspect in a child sex crime investigation. A videotaped police interview of Orange then occurred in a law enforcement facility where Orange read aloud and signed a Miranda waiver form. Following the interview, serious sex crime charges were filed. Before trial, Orange asked the trial court to suppress his statements to a detective because his statements were not freely and voluntarily given. After a hearing, the trial judge denied the motion. A jury later convicted Orange, and the trial judge sentenced him to four consecutive hard 25 life prison terms. (That is a whole lot of years of protection for other children). Orange appealed, and the Kansas Court of Appeals recently agreed with that trial judge.

The State has the burden to prove the voluntariness of a statement to police by a preponderance of the evidence that the suspect’s statement was the product of a his or her free and independent will. A court looks at the totality of the circumstances surrounding the statement to determine whether it was voluntary by considering the following nonexclusive factors: 1) the suspect’s mental condition; 2) the manner and duration of the interview; 3) the ability of the suspect to communicate on request with the outside world; 4) the suspect’s age, intellect, and background; 5) the fairness of the officers in conducting the interview; and, 6) the suspect’s fluency with the English language.

In this case, Orange only argued factors #2 (manner and duration of the interview) and #5 (fairness of the officers). As for the manner and duration, the appellate panel said that the interview room was standard with one table and two chairs, Orange was not handcuffed during the interview, only one detective was in the room, Orange was offered a drink, sat comfortably and smiled throughout the interview, was offered a bathroom break, did not have to wait for the interview to begin, the interview lasted only 55 minutes, the conversation was cordial and in polite tones, and the detective did not exhibit extreme or demonstrative body language during the interview. To say the least, none of that helped Orange’s argument.

Orange then argued that conducting an interview in a law enforcement building “is more intimidating than . . . at the suspect’s home or in some neutral area.” Well, yes that it true. But the judges said that nothing had been shown that the location was overly intimidating, was hostile, or that Orange was uncomfortable at the location. Although the detective was seated between Orange and the interview room door, there was no evidence that the detective blocked the door or physically stopped Orange from leaving.

As for the fairness of the officers (factor #5), the panel said that the following supported voluntariness of the statement: 1) “nothing was sprung” on Orange; 2) the conversation was cordial; and, 3) nothing done or said by the detective “rose to the level of deceptive tactics” that have been condemned by the Kansas Supreme Court. In this case, all the detective did was challenge Orange’s responses and repeated questions. Because Orange’s responses had changed over time, the detective would “circle back” on the conflicting information. The panel said that this interview tactic was “not unduly coercive.” And, since a 55-minute interview is nothing out of the ordinary, his appeal failed. Orange’s abode will continue being a Kansas prison.

Garner v. KDOR

Mon, 26 Dec 2022 21:25:19 GMT

Our state Court of Appeals recently tackled a traffic “case of first impression” for Kansas. On an evening in 2020, Jack Garner was stopped at a stop sign. A nearby officer observed Garner make his vehicle’s engine “roar” resulting in “spinning [the truck’s] tires all the way around until it got . . . directly onto 13th Street and straightened up.” The officer stopped Garner for a violation of K.S.A. 8-1547 which provides that: “No person shall start a vehicle which is stopped, standing or parked unless and until such movement can be made with reasonable safety.”

During the resulting traffic investigation, the officer arrested Garner for DUI. The Kansas Department of Revenue later suspended Garner’s drivers license, and the county district court upheld the administrative suspension. Garner appealed challenging the officer’s belief that Garner had violated K.S.A. 8-1547. (Importantly, this traffic case and appeal did not involve the separate statute, K.S.A. 8-1565, involving “exhibition of speed.”)

“An officer’s decision to seize someone by pulling them over constitutes a valid seizure under the Fourth Amendment if the officer has specific and articulable facts that create a reasonable suspicion the seized individual is committing, has committed, or is about to commit a crime or traffic infraction. When an officer lacks those specific, articulable facts, the seizure may violate the Fourth Amendment, assuming no exception applies. In such cases if the traffic stop is unconstitutional the court may set aside KDOR’s administrative suspension of a person’s driver’s license.”

After review, the appellate panel held “[t]his court joins most other state courts that have addressed this statutory language in holding that a driver’s acceleration from a stop that causes the car’s engine to rev and tires to squeal and spin is insufficient to constitute a violation of K.S.A. 8-1547 when there are no other circumstances showing that the acceleration was not reasonably safe . . .The essence of the unsafe-start statute is that it prohibits unsafe conduct, and the officer here did not identify any conditions or circumstances – such as wet road conditions, construction, the presence of other vehicles or pedestrians, or obstruction – that made Garner’s acceleration unsafe . . .This court does not doubt the good-faith intention and belief of the arresting officer, but that is not enough to support the constitutionality of Garner’s seizure in these circumstances.”

Interestingly, the fate of the parallel criminal DUI case is not discussed in the opinion. One would think that if the original stop was found lacking that it would affect more than the later administrative DL suspension.

State v. Kerrigan No. 123,862

Fri, 11 Nov 2022 21:10:55 GMT

In a split decision a panel of the Kansas Court of Appeals has held that during a DUI investigation that a pre-breath-test request to consult an attorney is valid and should be honored following the officer’s testing.

Thomas Kerrigan was stopped for a traffic violation and during the event the officer detected signs of intoxication. After being charged with DUI, Kerrigan moved to suppress the Intoxilyzer evidence on multiple grounds, one being that the officer had not honored his request to consult an attorney. The trial court found that even though the testimony conflicted, that Kerrigan had requested to consult an attorney at least once prior to the end of testing. Further, it found that Kerrigan had not requested an attorney after the completion of the testing. Those findings set up a need for court interpretation of the 2018 legislative amendments to K.S.A. 8-1001(c)(1).

The statute in question is K.S.A. 2019 Supp. 8-1001(c)(1) and it currently states:

“(c) When requesting a test or tests of breath or other bodily substances other than blood or urine, under this section, the person shall be given oral and written notice that:

(1) There is no right to consult with an attorney regarding whether to submit to testing, but, after the completion of the testing, the person may request and has the right to consult with an attorney and may secure additional testing.”

A little history helps here. In the 2015 Dumler v. KDOR case, the Kansas Supreme Court had held that language in the 2009 version of K.S.A. 8-1001 “does not say that a request to invoke that right of consultation must await the completion of testing.” In response to Dumler, the Legislature amended K.S.A. 8-1001 to include the current “but, after the completion of the testing . . . .”

Even with that background, Kerrigan argued that the law had not really changed, and that his right to consult an attorney “pre-breath test” stayed valid throughout the event. Surprisingly, two of the panel judges agreed finding that the phrase “but, after the completion of the testing” is ambiguous and thus Kerrigan should win here.

The third member of the panel, Judge Kathryn Gardner, would have none of it. She would have held that the statute is clear. “The plain language of the statute says that after the completion of the testing the person may request to consult with an attorney. It includes no similar language as to any earlier request. Thus, although an officer may choose to honor a request made before or during the breath test to consult with an attorney, an officer has no statutory duty to do so.” However, Judge Gardner lost in the 2-1 vote.

As of November 11, 2022, the State had not yet requested that the Kansas Supreme Court review the panel’s divided decision. So, bottom line for the foreseeable future, whenever a DUI suspect requests to consult an attorney about testing, that request will remain valid and should be honored at the end of the officer’s testing.

Courts Begin Struggle with Pole Cameras

Wed, 19 Oct 2022 01:32:38 GMT

(First published in the Kansas Sheriff magazine, Fall, 2022)

The world of ever-improving technology is difficult for lawmakers and courts. Revising statutes and evolving court opinions are both time consuming and unpredictable. It seems that law enforcement finds innovative ways to use new technology, but then waits years to hear whether those innovations are constitutional.

In the thermal-imaging case of Kyllo v. United States, 533 U.S. 27 (2001), the Big Court decided that there is a reasonable expectation of privacy where the government “uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant.” Although the scientific facts of Kyllo are still debated, suffice it to say that changes in technology have had a great effect on both law enforcement success and on how courts view the Fourth Amendment’s “expectation of privacy.” The latter has resulted in needing more search warrants. Since Kyllo (and assuming that no consent was involved), search warrants are now required for GPS trackers (U.S. v. Jones, 565 U.S. 400 (2012)); dog sniffs near a home (Florida v. Jardines, 133 S.Ct. 1409 (2013); cell phones (Riley v. California, 573 U.S. 373 (2014); and CSLI [cell-site location information] from third-party service providers for a suspect’s cell phone (Carpenter v. U.S., 138 S.Ct. 2206 (2018).

In the next couple of years, we may well be adding to that list the warrantless law enforcement use of pole cameras. The current issue with polecams appears to be the length of time the cameras are in use. Some courts have recently held that 2 months is too long without a warrant, while others have held that 18 months appears fine.

Until only a few years ago, the use of pole cameras was not viewed as a Fourth Amendment search and thus did not require a search warrant. That was because courts consistently held that a person does not have an expectation of privacy in those portions of their lives and the exteriors of their homes that are in public view. Kansas state and federal courts continue to support that view. However, other courts are not so sure, because of what has become known as the “mosaic theory.”

As one Kansas senior federal trial judge recently said, “broadly speaking, the mosaic theory holds that, when it comes to people's reasonable expectation of privacy, the whole is greater than the sum of its parts. More precisely, it suggests that the government can learn more from a given slice of information if it can put that information in the context of a broader pattern, a mosaic. Thus, under the mosaic theory, courts apply the Fourth Amendment search doctrine to government conduct as a collective whole rather than in isolated steps, and consider whether a set of non-searches aggregated together amount to a search because their collection and subsequent analysis creates a revealing mosaic . . . [t]he mosaic theory first appeared in Fourth Amendment jurisprudence in [the GPS case mentioned above]. There, the government's use of a GPS device to monitor a car's location for twenty-eight days was a Fourth Amendment search under the reasonable-expectation-of-privacy test. The [lower court] relied on the “mosaic theory” to explain why the month-long GPS monitoring of the car constituted a Fourth Amendment search: [W]e hold the whole of a person's movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.”

All of the cases so far tend to have the same general facts: 1) a warrantless placing by law enforcement of a video camera on a pole in a public space aimed at a particular home, but sighted so that the interior of the home cannot be viewed; 2) the camera usually operates and records 24/7; 3) the video footage can be stored indefinitely for later review; 4) the camera can pan left and right, tilt up and down, and zoom in and out while viewing the footage live; and, 5) it is agreed that the camera can capture a suspect’s everyday habits and routines over a long period of time.

In 2017, a majority of the South Dakota Supreme Court held that warrantless use of a pole camera for two months was a search and required a warrant. The state court did not explain exactly when, during that two-month period, the legal, non-search surveillance transformed into an illegal, search surveillance. In 2021, the Colorado Supreme Court followed South Dakota holding that three months of warrantless camera surveillance constituted a search under the Fourth Amendment, and thus required a warrant.

The federal courts too are now reviewing their positions on the cameras. In 2020, the 6th Circuit federal court of appeals reaffirmed its earlier view that there is no expectation of privacy in things that can be viewed by the public. In 2021, the 7th Circuit held that an 18-month duration of the government’s warrantless use of a pole camera “was concerning” but still permissible. This summer, an en banc (entire court) opinion of the 1st Circuit only added to the confusion. That federal court gave the government the win in U.S. v. Moore, 2022 WL 2072086 (1st Cir. 2022) but the judges split 3-3 on why. Three of the judges took the majority view that pole cameras do not invade any reasonable expectation of privacy; but, importantly, the other three judges thought just the opposite and only agreed on the outcome in the case because the good faith exception to the exclusionary rule applied. What has government attorneys in the 1st Circuit wary is that the first three judges are all retiring, leaving the “dissenting” group of three judges to hear and decide future pole camera cases. The Big Court has so far declined to become involved in any of the cases, even though there is a split between the state and federal courts over what the Fourth Amendment demands.

So, what is the takeaway for Kansas officers thinking about employing a pole camera in one of their investigations? The best practice answer is that should probable cause already exist to place a camera (maybe not enough to search the house, but enough for a camera), then bullet-proof the pole camera evidence by seeking an early search warrant. If that is not possible, then be aware that the law on the lengthy-use of warrantless pole cameras recording a home is in flux and limit the length of time your pole camera is actually used without a warrant.

As we wait for warrantless pole cameras to work themselves through the court system, and for courts to decide the limits of a person’s expectation of privacy, it is easy to think about the next big constitutional questions in law enforcement: the searches of computer-laden and Bluetooth-capable cars, boats and aircraft used in crimes, and the constitutional limits on the law enforcement uses of drone aircraft. Those issues are sure to keep many lawyers employed.

For further research and understanding: Positive: U.S. v. Tuggle, 4 F.4th 505 (7th Cir. 2021); U.S. v. May-Shaw, 955 F.3d 563 (6th Cir. 2020); U.S. v. Hay, 2022 WL 1421562 (D.Kan. 2022); U.S. v. Jackson, 213 F.3d 1269 (10th Cir. 2000)(vacated on other grounds); U.S. v. Cantu, 684 Fed.Appx. 703 (10th Cir. 2017); Negative: State v. Jones, 903 N.W.2d 101 (S.D. 2017); People v. Tafoya, 494 P.3d 613 (Colo. 2021).

State v. Bates, No. 122,128

Wed, 31 Aug 2022 01:21:29 GMT

In 2019, a homeowner called 911 at 1:27 a.m. concerned that an unknown person was knocking on the home’s front door. 911 dispatched officers to the “suspicious character” call. When the first officer arrived, he saw a nearby van with its headlights on. The officer attempted to approach the van on foot, but the van drove off. A few minutes later a second officer found the same van without its lights parked a block or so away in a dark, overgrown alley. The second officer blocked the alley and turned on his red lights. Officers approached the van, contacted the occupants, and detected the odor of marijuana. The vehicle was searched, cocaine was found, and Carlos Bates was charged in state court.

Carlos filed for suppression of the cocaine alleging that the officers did not have reasonable suspicion to initially detain he and the van (blocking the alley and red lights, which led to the detection of the MJ odor and the search). The officers testified that the following facts made them suspicious: 1) knocking on a house so early in the morning spooking the homeowner; 2) the neighborhood had seen “a lot” of burglaries and gang activity; 3) in recent house burglaries the events were preceded by knocking on the front door to see if anyone was home; 4) the officers had arrived quickly and the van was the only apparent source for the door knocking; 5) [although it was uncertain whether the van occupants actually saw the first officer approach on foot], driving away just as the first officer attempted to contact the van; and, 6) almost immediately finding the same van blacked out nearby in an overgrown alley.

Surprisingly, the trial judge focused on the officers’ testimony about their uncertainty of what crime might have been being committed that night, and held that the officers obviously did not think they had reasonable suspicion of a crime, and thus they had no authority to make a valid investigatory (Terry) temporary detention. But, then the trial judge went on to hold that the officers did have grounds to have made a public safety stop (where officers are authorized to check on the safety and welfare of persons but where no criminal investigation is allowed). Hmmm.

Carlos was convicted and appealed to the Kansas Court of Appeals. An appeals panel later held that the trial judge was right to deny the suppression motion, but for the wrong reason. The panel found that the officers (even though they were uncertain in their testimony about a particular crime) did have reasonable suspicion and authority to temporarily detain the van. Having lost again, Carlos asked the Kansas Supreme Court to review all of that back and forth litigation, and the big Court agreed.

A few weeks ago, our state Supreme Court affirmed denial of the suppression motion agreeing with the Court of Appeals that based upon the totality of the circumstances of the above facts, and the reasonable inferences therefrom, that by the time the officers had approached the darkened van in the alley, the officers had reasonable suspicion that a crime had been, was being, or was about to be committed. The Court went into detail to remind Kansas judges that the reasonable suspicion standard requires consideration of the “whole picture.” Although a mere “hunch” by an officer is insufficient, reasonable suspicion is a lesser standard than probable cause. Courts are not to use a “divide and conquer” analysis by pigeonholing facts into “innocent” or “guilty” because in isolation some facts may well have wholly innocent explanations but when viewed within the “whole picture” can support reasonable suspicion.

It is apparent to those who have watched the Court for decades that changes in Court membership the last few years has had an impact on how the Court views the issue of reasonable suspicion. For too long Kansas has had an arbitrarily-set high bar for the existence of reasonable suspicion. Hopefully we are returning to the original standard contained in Terry v. Ohio.

Great Decision.

Irizarry v. Yehia 10th Circuit COA, No. 21-1247

Thu, 21 Jul 2022 11:02:31 GMT

In 2019, Abade Irizarry, a “YouTube Journalist” was from a public place videoing a night-time DUI arrest by Lakewood, Colorado police officers. Officer Ahmed Yehia arrived shortly after the videoing began, and allegedly stood in front of Irizarry shining a flashlight into Irizarry’s camera. Irizarry later sued the officer in federal court under 42 U.S.C. 1983 alleging a violation of Irizarry’s First Amendment rights. Section 1983 provides that a person acting under the color of state law who “subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.”

The trial court determined that even if that were all true, Officer Yehia was entitled to qualified immunity because the violation was not one of clearly-established law in the 10th Circuit (covering the states of Kansas, Oklahoma, Colorado, and New Mexico), and the judge dismissed the case. Irizarry appealed and the 10th Circuit has recently reversed.

“A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Based upon caselaw in six other circuits beginning in 1995, and on a 2017 10th Circuit case called Western Watershed Project v. Michael, the appellate panel said that a reasonable officer would have known what Officer Yehia was doing was wrong. The panel said that a person, in this case a “journalist,” has the right to video police performing their duties in public subject to reasonable time, manner, and place restrictions.

So, the case was sent back to the trial court, qualified immunity will not be a defense, and the case will go to trial on its own facts.

A Short History: Police Use of Force

Thu, 09 Jun 2022 14:15:21 GMT

(Author: Colin Wood; Reprinted with permission of the Kansas Sheriffs Association)

“History is a guide to navigation in perilous times. History is who we are and why we are the way we are.”

Historian David McCullough

A Short History: Police Use of Force

The evolution of the police use of force is interesting. There are no doubt a few officers still working who remember when the lawful use of deadly force included shooting not just armed and dangerous felons who had committed serious crimes, but the shooting of all fleeing felons.

The Common Law is law that is derived from prior judicial decisions rather than from statutes enacted by legislative bodies. Our early courts looked to English Common Law until the new state and federal governments could get caught up with our new nation’s legal needs. Legislatures and Congress have since codified many Common Law rules.

There were two general Common Law rules concerning use of force brought to our shores by the early colonists: 1) a prohibition against the use of deadly force to stop a fleeing misdemeanant; and, 2) a privilege to use deadly force to stop a fleeing felon. Over the following 200 years, different states and law enforcement agencies enacted laws and policies on use of force, some retaining those historic Common Law rules, and some using more restrictive language. By 1960, less than half of the states allowed deadly force in all fleeing felon cases. Some restricted deadly force to certain felonies, or to violent felonies, or only when the felon was otherwise dangerous.

Until the 1980s, Kansas followed the original Common Law rule as contained in early versions of K.S.A. 21-3215: “[a]law enforcement officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to effect the arrest and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or another person, or when he reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and the person to be arrested has committed or attempted to commit a felony or is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay.”

Tennessee law was similar in allowing deadly force to stop the escape of any fleeing felon providing that “[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.”

One evening in October 1974, Memphis police officers Elton Hymon and Leslie Wright were dispatched to a burglary-in-progress call. Upon arriving and contacting the reporting-neighbor, Officer Hymon went to the rear of the house. Almost immediately out of the back door ran Edward Garner who had to then quickly stop at a six-foot fence. Using a flashlight, Officer Hymon was able to determine that Garner was apparently unarmed, was about 16 or 17 years old, and was about 5’5” or 5’7” tall. Officer Hymon hollered “police, halt.” When Garner started to climb the fence Officer Hymon decided that if Garner was able to go over the fence that Garner would probably escape arrest. Hymon shot and killed Garner. Ten dollars and a purse taken from the house were found on Garner’s body.

Tennessee state law and department policy supported the shooting, but Garner’s father sued in federal court alleging violation of Edward’s civil rights. After a three-day bench trial, the district judge held that Officer Hymon had employed the “only reasonable and practicable means of preventing Garner’s escape. Garner had ‘recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon.” On appeal, the Sixth Circuit Federal Court of Appeals affirmed the district court.

Eleven years after the shooting, the United States Supreme Court voted 6-3 in Tennessee v. Garner to reverse. The majority reminded the lower courts and law enforcement that “whenever an officer restrains the freedom of a person to walk away, he has seized that person,” that such seizures are Fourth Amendment events, and seizures under the Fourth Amendment must be “reasonable.” Holding that the use of deadly force to prevent the escape of all felony suspects no matter the circumstances is constitutionally unreasonable. “It is not better that all felony suspects die than that they escape. Where the suspect poses no harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect.”

However, the Big Court also held that “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent the escape [of a felon] by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”

So today, in Kansas, state law authorizes the use of deadly force to effect arrests in the following scenarios, “ . . . [h]owever, such officer is justified in using deadly force only when such officer reasonably believes that such force is necessary to prevent death or great bodily harm to such officer or another person, or when such officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and such officer has probable cause to believe that the person to be arrested has committed or attempted to commit a felony involving death or great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that such person will endanger human life or inflict great bodily harm unless arrested without delay.

That said, then how do courts determine “reasonableness” in use of force cases? Ironically, while Garner was pending before the Big Court, the event that would lead to that “reasonableness” answer was occurring. On November 12, 1984, in Charlotte, North Carolina, diabetic Dethorne Graham believed that he was having an insulin reaction. Going into a convenience store for orange juice, he decided that he could not wait in the long line to pay, so he quickly left the store. Officer M.S. Connor noticed the activity and after Graham got into a friend’s car, Officer Connor stopped the car apparently suspicious of Graham’s quick entry and exit from a business. Graham continued his strange behavior by running around the car and passing out on the curb. Officer Connor thought Graham was intoxicated. More officers arrived and Graham was handcuffed. Graham’s friend tried to convince the officers of the insulin problem but to no avail. After an hour, and finding from the convenience store staff that no crime had occurred, Graham was released. Because Graham believed that he had suffered physical injuries during the event, he sued Officer Connor and others for using excessive force during the encounter.

The federal trial court analyzed the case under the then-existing four-factor test for excessive force claims: 1) the need for application of force; 2) the relationship between that need and the amount of force that was used; 3) the extent of the injury inflicted; and, 4) whether the force was applied in a good faith effort to maintain and restore discipline or [was] maliciously and sadistically [applied] for the very purpose of causing harm. The judge found that the amount of force used against Graham was “appropriate under the circumstances . . . there was no discernable injury inflicted . . . and the force used was not applied maliciously or sadistically . . . but in a good faith effort to maintain or restore order in the face of a potentially explosive situation.” Graham appealed but lost before the federal circuit court of appeals when it decided that the test used by the trial court was the correct one.

Later, the Big Court in a 9-0 decision rejected “this notion [of the lower courts] that all excessive force claims brought under §1983 are governed by a single generic standard [the four-part test]. “Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures of the person.”

“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation . . . An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”

So, the modern test for police use of force claims was held to be: “the reasonableness of a particular use of force [lethal and non-lethal] must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

For further research and understanding:Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989); K.S.A. 21-5227.

Colin

State v. Harbacek, No. 124,513

Wed, 27 Apr 2022 18:52:11 GMT

Eric Harbacek was a parolee living in the basement of a house. In a weak moment, he decided to hassle the owners of the house and was arrested for domestic battery. One of the arresting officers contacted Eric’s parole officer and the parole officer agreed that the officers should search Eric’s living quarters. Officers found controlled substances, a firearm, and ammunition. Eric was charged.

Although state law required the officers to have provided the parole officer with a written report of the search by the close of business the day after the search, the report was late. K.S.A. 22-3717(k)(3) says: “Parolees and persons on postrelease supervision are, and shall agree in writing to be, subject to searches of the person and the person's effects, vehicle, residence and property by any law enforcement officer based on reasonable suspicion of the person violating conditions of parole or postrelease supervision or reasonable suspicion of criminal activity. Any law enforcement officer who conducts such a search shall submit a written report to the appropriate parole officer no later than the close of the next business day after such search. The written report shall include the facts leading to such search, the scope of such search and any findings resulting from such search.”

Among other arguments, Eric seized on that late report saying that such mistake by the police should lead to suppression of the evidence found in his living area. The trial judge agreed with Eric that the officers’ noncompliance with K.S.A. 22-3717(k)(3) warranted suppression. The State appealed.

Recently, a panel of the Kansas Court of Appeals reversed the trial court reminding the trial judge that Fourth Amendment searches should be suppressed by the district court only when the defendant demonstrates prejudice from a technical irregularity or when the violation of a statute affects an accused’s substantial rights. The panel said, “[i]t is hard to fathom how Harbacek was prejudiced by the late filing of the report. It would appear that the predominant reason for the filing of the report is to notify the parole officer if the search revealed any evidence that would support the filing of a parole violation and not for the purpose of protecting the rights of the parolee . . . Logic would also indicate that a parolee would not be prejudiced if the report was never filed in that the parole officer would be unaware of information that could be used for filing a parole violation.”

That said, however, officers should still be aware of the statutory parolee search reporting requirements, and whenever possible file the required reports on time.

U.S. Supreme Court Update

Thu, 20 Jan 2022 19:43:41 GMT

U.S. Supreme Court Update

The Big Court is three months into its 2021-2022 term. There are only three cases to report on: two have already been resolved, and there is one to watch.

The Court has already, without oral argument, reversed the 9^th Circuit and the 10^th Circuit concerning lawsuits against police officers in California and Oklahoma. The Court sent the matters back for another look and reminded those federal appellate courts that to deny qualified immunity to government employees, the court has to point to a past case with nearly the exact same facts. Only with such a case can a court then hold that a reasonable police officer would have known that his or her actions would be unlawful. See City of Tahlequah v. Bond, Docket No. 20-1668; Rivas-Villegas v. Cortesluna, Docket No. 20-1539.

Late last week, the Court accepted the only other street law enforcement case this term: Vega v. Tekho, Docket No. 21-499, involves a California sheriff deputy being sued for failing to give the Miranda warning to a suspect. When the suspect was later acquitted by a jury, the suspect sued the officer alleging that the Miranda warning is a constitutional right and that he was damaged by the officer’s failure. A 9^th Circuit panel agreed with the suspect. Because there is currently a split in the federal circuit courts about whether the Miranda warning is a right, or only a court prophylactic rule of evidence admission, the Big Court accepted the case to decide. Kansas is in the 10^th Circuit and the 10^th has previously held that the Miranda warning is a rule and not a constitutional right. Oral argument on Vega has not yet been set but we should have a decision by summer. Interesting question. Reviewing the long line of the Big Court’s Miranda warning cases, it will not be surprising if the 9^th Circuit is reversed.

A Note About Brady/Giglio Responsibilities

Tue, 02 Nov 2021 14:09:28 GMT

[Note: The following appeared recently in the Kansas Sheriff magazine, Fall 2021 edition. Placed on the KPOA Point of Law page with permission of the Kansas Sheriffs Association]

“It is always the right time to do the right thing.”
Martin Luther King Jr.

What is Brady/Giglio, and as an agency administrator why should I care? The short answer is the Constitution requires the government to affirmatively provide to all criminal defendants both exculpatory (favorable) evidence and impeachment (credibility) evidence concerning government witnesses, including law enforcement officers. The longer answer is that because the obligation is grounded in the Constitution, it is not subject to narrowing through state law or departmental policy, and violations can result in the dismissal of a prosecution, reversal of a conviction, and/or court or license action against prosecutors, law enforcement administrators and officers. Although required by the courts for over half a century, the issues surrounding criminal justice fairness and officer credibility have been subjected to new scrutiny. The result has been a heightened defense and public awareness of Brady/Giglio requirements.

In Brady v. Maryland, the United States Supreme Court determined that prosecutors have an unqualified obligation to turn over all evidence favorable to an accused when the evidence may be material either to guilt or punishment. In Giglio v. United States, the Big Court held that certain information concerning government witness credibility must also be disclosed to the defense.

The disclosure obligation goes well beyond the case prosecutor to include “all information in the possession of any state or local officer.” “There is no ambiguity in our law. The obligation under Brady and Giglio is the obligation of the government, not merely of the prosecutor. Exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where the investigating agency does.”

Evidence is considered exculpatory if it “tends to disprove a fact in issue which is material to guilt or punishment.” And, evidence can be exculpatory without being exonerating such as: failure of a witness to identify the defendant, information that links to the crime another person, and information that casts doubt on accuracy of some evidence.

Witness impeachment evidence includes: plea agreements between the witness and the government, benefits promised or given to witnesses (including immigration assistance), certain prior convictions, prior inconsistent statements, evidence of bias, and evidence bearing on a witness’s character for truthfulness.

The Logistics

So, we understand our agency’s constitutional obligation to provide to the defense all of the favorable and unfavorable information that we gather in our investigations. And, that duty seems pretty straight forward.

We also know that we will need to turn over impeachable information about all of the witnesses that the prosecutor will call to testify, including our agency’s officers and employees. But, as a practical matter, how does the impeachment information process work?

Depending upon the local prosecutor’s policy, many agencies currently maintain a “Brady/Giglio List” that contains the names of officers and other employees that may be subject to disclosure because of past events reflecting upon the employee’s character or actions. Other agencies may not maintain a formal list, but could be sufficiently aware of names and events that would require disclosure. Whether a list is maintained or not, disclosure of impeachable information is still a legal duty.

Some prosecutors wish to decide witness credibility issues on a case-by-case basis. Others have decided that they will not accept a case or a warrant affidavit from an officer-witness who is Giglio-compromised. The extent of the prosecutor’s authority is: 1) to require law enforcement agencies to participate in the Brady/Giglio information gathering process; and, 2) to report witness credibility issues. Whether Giglio-compromised employees remain employed is determined by the law enforcement agency head. For a variety of reasons, some agencies retain a compromised employee and assign them to duties not directly related to criminal investigations that might require sworn court testimony. Other agencies terminate Giglio-compromised employees because either reassignment is not possible, or because the agency’s ethical standards do not allow for employees with agency or court sustained credibility issues.

A typical Brady/Giglio inquiry might start with a defense inquiry or an Open Records request to the prosecutor. The request should be in writing, and will find its way to the law enforcement agency. The agency’s legal advisor should be involved early and the agency would then make a good faith search of its records. Personnel records are usually closed, but there may be times when portions could be released under a protective order and/or subject to an in-camera review by a judge. The agency’s records findings are reported to the prosecutor who can then make a decision on whether the criminal prosecution will continue and the potential government witness be called to testify.

Should the prosecutor wish to move forward, then with the legal advisor’s help the information can be released to the defense, or any legal objections be litigated in court. Agencies should refrain from automatically releasing information without in-house legal review due to the multiple privacy issues related to law enforcement and personnel records. A new and separate written record should be created to track the actions taken and the documents reviewed and/or released concerning defense requests for Brady/Giglio information.

Should an agency not currently have a Brady/Giglio policy and procedure in place for the receipt, review, litigation and disclosure of information, it is recommended that one be created sooner than later. Brady/Giglio requests tend to be time-sensitive and trying to figure out what to do after receiving a request is difficult at best.

For further research and understanding: Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. U.S., 405 U.S. 150 (1972); Kyles v. Whitley, 514 U.S. 419 (1995); U.S. v. Agurs, 427 U.S. 97 (1976); Strickler v. Greene, 527 U.S. 263 (1999); State v. Nguyen, 251 Kan. 69 (1992); “ Brady & Giglio” Sample Prosecutor’s Policy, Kansas County and District Attorneys Association, August 2017; “Brady/Giglio Policy of the District Attorney” Sedgwick County District Attorney’s Office, August 2014; the author also notes his appreciation for the learned guidance of Laura Oblinger, Legal Advisor, Sedgwick County Sheriff’s Office.

Supreme Court Roundup

Thu, 22 Jul 2021 15:55:54 GMT

The United States Supreme Court ended its 2020-21 term at the end of June. The Court handed down six street law enforcement cases. I have already reported to you on the Torres v. Madrid, (No. 19-292) case when it was issued in the Spring. Here are summaries of the other five cases:

Taylor v. Riojas
No. 19-1261

Qualified immunity continues a hot topic in the Big Court. Trent Michael Taylor was a Texas state prisoner that was in 2013 allegedly held naked for 6 days in multiple filthy, feces-covered and frigid cells. He sued prison officials but the district court (later affirmed by the federal circuit appeals court) held that under current case law a “few days” of such confinement was not unconstitutional and granted summary judgment to the officers. Further, should 6 days have been too many, the officers were still deserving of qualified immunity from liability because the law was not clear as to how many days counted as “a few days.”

The Big Court (7-1) vacated the lower courts’ decisions and sent the case back for further proceedings because “confronted with the particularly egregious facts of this case, any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”

The Court was not finding liability, only ordering the lower courts to take another look under a more realistic standard.

Lombardo v. St. Louis
No. 20-391

Nicholas Gilbert was arrested in 2015 for trespassing and failing to appear on a traffic ticket. While in a PD holding cell, Gilbert attempted to hang himself. A number of officers responded and a lengthy struggle ensued. Officers finally got Gilbert into handcuffs and leg restraints. The problem was the officers held him face down for about 15 minutes as he continued to struggle. Gilbert quit breathing and died at a local hospital.

The family (through Jody Lombardo) sued the officers claiming excessive force. Interestingly, some of the evidence in the case showed previous local police training to not keep a already-restrained subject face down, and that such a position may cause a subject to continue to struggle to breathe rather than an actual “desire to disobey officers’ commands.” The trial court granted summary judgment to the officers concluding they were entitled to qualified immunity, and the Eighth Circuit Court of Appeals affirmed.

However, the justices (6-3) found that the lower courts had not given “careful attention to the facts and circumstances” of the case as is the test. “We express no view as to whether the officers used unconstitutionally excessive force” and the case was sent back to give the trial court “an opportunity to employ an inquiry that clearly attends to the facts and circumstances.”

Clearly another case where the Big Court is taking a second look at how the lower courts should review excessive force and grants of qualified immunity to government employees.

Caniglia v. Strom
No. 20-157

Edward Caniglia had a fight with his spouse and threatened to do harm to himself. The spouse later asked local police to check on Edward’s welfare. Officers met the spouse at the house, spoke to Caniglia, and he agreed to be taken by ambulance for an evaluation. Although the facts are disputed after that, once Caniglia left the scene the officers entered the home and removed two handguns.

Caniglia was released from care and asked for return of his firearms. The police refused. Caniglia sued claiming the officers entered his home without a search warrant. The officers responded that they entered the home based upon the “community caretaking” exception to the warrant rule. The officers believed that a 1973 Supreme Court case, Cady v. Dombrowski, involving the warrantless search of an impounded vehicle and the seizure of an unsecured firearm inside also covered the officers’ entry into the Caniglia home. Nice try, but no cigar.

The Big Court held (9-0) that vehicles are not homes. Homes are the most Fourth Amendment-protected location in the country. The community caretaking exception under Cady does not apply to a house. The case was sent back to decide whether some other exception to the warrant rule might apply under the particular facts such as consent, or exigent circumstances, or a state law mental health intervention law.

This case did not change any other existing warrant exceptions involving a home. It only holds that the police “community caretaking function” does not work for a house search.

Cooley v. United States
No. 19-1414

Joshua Cooley was parked on the shoulder of a Montana state highway within the boundaries of the Crow Reservation. A tribal police officer noticed the truck, thought it might need help, stopped and spoke with Cooley. During the event, the tribal officer noticed that Cooley was non-native, displayed DUI indicators, had two rifles on the seat and some white powder that was later identified as methamphetamine. Other officers including a federal Bureau of Indian Affairs arrived, Cooley was arrested, and he was later indicted on federal drug and gun charges.

Cooley moved to suppress the search arguing that tribal officers have no authority over non-Indians on a public road even when the road passes through a recognized reservation. The trial court agreed with Cooley. The Ninth Circuit Court of Appeals agreed with the trial court. The Big Court disagreed with both and reversed. The justices held (9-0) that “a tribal police officer has authority to detain temporarily and to search non-Indian persons traveling on public rights-of-way running through a reservation for potential violations of state or federal law.”

Kansas already provides for tribal officer jurisdiction under certain conditions and provisions as outlined in K.S.A. 22-2401a(3)(a).

Lange v. California

Arthur Lange was enjoying a nice California evening car ride by playing his radio loud and honking his horn at the world. Arthur’s pleasures drew the attention of a California Highway Patrol officer who, after following Arthur for a while, signaled with red lights for Arthur to stop. Instead, Arthur drove a little farther to his house stopping in the drive and walking into the garage. The officer followed.

Inside the garage, the officer detected DUI indicators, tested and questioned Arthur, and later arrested Arthur for DUI. Arthur asked the trial court to suppress what had happened in the garage since the officer did not have a search warrant or consent to have entered into the garage in the first place. The California courts sided with the officer holding that fresh pursuit of a misdemeanant categorically (always) provides exigent circumstances and thus an exception to the warrant rule. Following his conviction, Arthur appealed to the Supreme Court that “categorical” question.

The Big Court disagreed with California (9-0), albeit the justices did not agree as to the practical consequences. First, homes are the most constitutionally protected places in the country. Second, only rarely may the government enter a house without a warrant or consent.

Unlike the hot pursuit of a felon, misdemeanants vary widely in seriousness and therefore whether exigent circumstances are present should be determined on a case-by-case basis. Further, flight alone does not create an exigency. Instead, the new rule is FLIGHT + another factor, such as: imminent harm to others, threat to the officer or others, destruction of evidence, or later escape from the home.

In summary, the “flight of a suspected misdemeanant does not always justify a warrantless entry into a home. An officer must consider all the circumstances in a pursuit case to determine whether there is a law enforcement emergency. On many occasions, the officer will have good reason to enter . . . But, when the officer has time to get a warrant, he must do so – even though the misdemeanant fled.”

That said, the Court also stated that a “great many misdemeanor pursuits involve exigencies allowing warrantless entry;” that “in many, if not most, cases allow a warrantless home entry;” and, “no doubt that in a great many cases flight creates a need for police to act swiftly.” So, officers should be ready in the future to testify at more length based upon the particular case facts, and the officer’s training and experience, that a home entry was necessary.

Because California wrongly applied the “always” rule to misdemeanor chases, the case was sent back to the state court to determine in this particular case whether the officer acted reasonably. Under the facts of Arthur’s case, my money says that Arthur will need to buy a new toothbrush because he will be spending a few weekends as the guest of the state government.

Colin

PERMISSION TO PURSUE? [MONTGOMERY V. SALEH, 361 KAN. 649, 466 P.3D 902, (KAN. 2020).]

Thu, 10 Jun 2021 03:17:52 GMT

The following article from the Washburn Law Journal was written and provided to me by Tyler Pettigrew, a former sheriff’s deputy who has recently graduated from law school. It is an excellent review on recent developments in Kansas vehicle pursuit law and discusses at length the Kansas Supreme Court opinion in Montgomery v. Saleh. Agency administrators will especially be interested.

Colin

PERMISSION TO PURSUE? [MONTGOMERY V. SALEH, 361 KAN. 649, 466 P.3D 902 (KAN. 2020).]

State v. Cash & State v. Arrizabalaga

Tue, 04 May 2021 12:43:32 GMT

State v. Cash

Kansas Supreme Court, No. 121,467

This case arises from a 2018 traffic stop of a van for a tag violation. During the initial contact, and while the driver was looking for registration and insurance papers, the officer noticed in the back of the van a partially open flat safe. Hanging out of the safe was a plastic baggie and a Crown Royal bag. The officer could not see what was in either bag.

The officer asked Cash if he would open the safe, and Cash agreed. As Cash opened the safe, the officer could see orange hypodermic needle caps inside of the plastic bag. Cash then slammed the safe shut saying, “I think there’s a pipe in there.” That all together led to a probable cause search that found methamphetamine, other narcotics, and paraphernalia in the van.

Cash was charged and requested a suppression hearing. The question at the hearing was whether the officer had developed reasonable suspicion of other criminal activity so as to extend and broaden the traffic stop. At the hearing, the officer testified that she had come across Crown Royal bags in the past, and that she “more often than not” found drug paraphernalia in them. Based upon the officer’s experience, the safe, the plastic baggie, and the Crown Royal bag, the trial court held that the officer had reasonable suspicion to extend the stop so as to then inquire about the safe and to then hear Cash blurt out about the “pipe.” Cash was convicted and appealed.

In 2020, a divided Court of Appeals panel agreed with the district court. But, the lone dissenter, appellate Judge Michael Buser, would have held among other things that the officer had not testified sufficiently about her training and experience to believe that such innocent items as a baggie and Crown Royal bag, by themselves, could amount to reasonable suspicion of criminal activity. Cash lost his appeal, but the Kansas Supreme Court agreed to review the decision.

Justice Melissa Taylor Standridge, only recently moved up to the Supreme Court from the Court of Appeals, wrote the opinion also agreeing with the district court. She started with a recitation of the current law concerning car stop mission limitations and reasonable suspicion: “Yet these limitations do not mean that police must perform their duties with a blind eye. When a detainee’s responses and the surrounding circumstances give rise to an objectively reasonable and articulable suspicion that criminal activity is occurring during a traffic stop, an officer can broaden his or her inquiry to satisfy those suspicions . . .The reasonable suspicion analysis requires use of an objective standard based on the totality of the circumstances, not a subjective standard based on the detaining officer’s personal belief . . . So the relevant question for the district court at a suppression hearing is whether the facts presented to the officer—facts to which the officer must testify with particularity—give rise to an objective basis for suspecting criminal activity when viewed under the totality of the circumstances standard . . . [A]n officer is not required to neatly package the reasonable suspicion factors in a single succinct answer; the court is required to consider ‘the totality of the circumstances, all facts and inferences, [and] not a select few . . . Reasonable suspicion is a lower standard than probable cause. What is reasonable depends on the totality of the circumstances in the view of a trained law enforcement officer. The totality of the circumstances standard allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them.”

The Supreme Court went on to hold that the officer’s experience of having come across Crown Royal bags in the past that had “more often than not” contained drug paraphernalia, together with the safe and plastic baggie, amounted to reasonable suspicion to extend a car stop for further investigation.

This is a welcome re-setting of the reasonable suspicion bar. I have written for years that our state courts have been “all over the map” on what amounts to reasonable suspicion, and they have generally set the bar too high when compared to U.S. Supreme Court precedent. Only last year Kansas was reversed by the Big Court in Kansas v. Glover on a similar “what amounts to reasonable suspicion” traffic stop case.

State v. Arrizabalaga

Kansas Supreme Court, No. 120,209

You may recall this case from the 2019 Kansas Court of Appeals opinion that changed when drug dogs should be called. That appellate panel had split 2-1 on the issue of whether an officer was required to call a dog the moment that the officer developed reasonable suspicion. The State had appealed that ruling and the Kansas Supreme Court has recently agreed with the State.

The facts are long, but suffice it to say: car stop for a traffic violation: reasonable suspicion developed; warning ticket; driver released; re-contacted and consent to search given; withdrawal of consent a few minutes later; officer called for drug dog; the nearest dog arrived 24 minutes later; a sniff, an alert, and a search: 111-one pound bags of marijuana. At the time the dog was called, the event had lasted about 23 minutes.

Interestingly, in the initial criminal case the trial court had held two separate suppression hearings. Following testimony in the first hearing, the trial court had denied suppression. The defense then altered its strategy in a second hearing arguing that the officer “was not diligently and reasonably pursuing the purpose of the stop” while he awaited the drug dog. The defense convinced the trial judge that 24 minutes was too long to wait for a dog, and the drug evidence was then suppressed.

The State appealed. A split appeals panel agreed with the trial judge, holding that the officer “could have attempted to dispel his suspicions or tried to locate a drug-sniffing dog immediately [when first suspicious, not later when consent to search was withdrawn].” Appeals panel Judge Kathryn Gardner dissented having found no fault with the officer’s decision to wait and use other means to dispel his suspicions. Judge Gardner would have held that those other means used by the officer (release and consent to search) were diligent under the circumstances; and, there was nothing further that the officer could have done while then waiting for the dog.

The State then asked for review by the Supreme Court. Senior (retired) District Judge Michael Ward, sitting temporarily with the Supreme Court, wrote the opinion released last week reversing the Court of Appeals majority and the trial court.

Judge Ward first reviewed the law: “A routine traffic stop is likened to a brief stop under Terry v. Ohio as opposed to an arrest. It is a form of investigative detention which must be legally justified from the start by reasonable suspicion of criminal activity. A traffic infraction provides the reasonable suspicion required to initiate a traffic stop. The scope of investigation during the stop is delineated by the circumstances which rendered its initiation proper. Beyond determining whether to issue a traffic ticket, an officer’s mission includes . . . checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. The duration of a routine traffic stop is generally limited to the time reasonably necessary to carry out its mission. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. Normally, after the traffic citation process is concluded, the officer must allow the motorist to depart the scene. That is unless the officer has reasonable and articulable suspicion of additional criminal activity, or consent.”

So, this appeal surrounded only one question: whether the officer had, after developing reasonable suspicion of additional criminal activity, “acted diligently to verify or dispel his suspicions.” In other words, was it OK to go through the steps the officer first took, then call for a dog, and then to just sit and wait 24 minutes for the nearest dog to arrive. Judge Ward, speaking for the Supreme Court, said yes. First, there is no legal time limit for waiting for the arrival of the nearest dog. That said, “if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.” Second, “[i]n evaluating the reasonableness of a stop, we consider what the police in fact do and whether the officers acted reasonably under the totality of the circumstances. The Court of Appeals should have Focused solely on the 24 minute segment of time between withdrawal of consent and the arrival of the drug dog: “[the officer] detained Arrizabalaga and his passenger for no longer than was necessary to get a drug dog to the scene to quickly confirm or dispel his reasonable suspicions. Under the circumstances existing that night . . . waiting 24 minutes for a fellow officer to arrive with a drug dog was reasonable and diligent . . . [w]e agree with the dissent that the panel majority engaged in post hoc second guessing of police conduct, imagining what other different investigative approaches might have accomplished. We choose not to go there. (emphasis added).

Hmmm. That is the second favorable Terry-related case from our Kansas Supreme Court in less than a month. A sign of a re-evaluation of the Court’s decades-long, unilateral and solitary, legal interpretations of Terry v. Ohio standards? Maybe. Time will tell.

Colin

Thanks Again, Director

Mon, 12 Apr 2021 11:49:48 GMT

Others this week will speak about this much more eloquently, but I wanted to add something important, at least to me.

Gerald Ford was in the White House. I was a wet-behind-the-ears rookie standing in January snow on the first rustic KLETC firearms range. And, I had a problem. Well, I had a lot of problems but one of them was a frightful anticipation-jerk when I pulled the trigger of my blue Colt Python. Every round seemed to have a better chance of hitting Hutchinson than the target. That week there was a volunteer FBI agent helping the range master. He watched a while, then came over, demanded my wheel gun, turned away, loaded what turned out to be fewer than 6 rounds, spun the cylinder, closed it, and handed it back. My first trigger pull landed on an empty chamber and I almost threw the Colt into the snow. The second pull was not quite so bad. As the day ended, my dangerous jerk was gone. For a career it was gone.

Just who was that volunteer FBI agent who did more for the safety of everyday Kansans that day in Yoder than he ever knew? I did not know for 20 years. By that time, I had joined the KBI and we were welcoming a new Director, Larry Welch. Director Welch told stories. Unlike many others who tell stories, the Director told good stories. Funny stories. One of those stories involved him helping at the KLETC firearms range when Gerald Ford was in the White House. I am not the sharpest knife in the drawer, but even I could put those facts together and find probable cause that the unidentified FBI agent was a much younger Larry Welch.

Later, the Director, a law school graduate and big proponent of education, granted my request to rearrange my agent duties so as to attend law school. That resulted in years of direct benefit for the KBI, and a later great second career for me. A second career that has allowed me to help Kansas officers be a little better at their jobs. The same thing that the Director did in each of his multiple careers.

I had enjoyed and learned from decades of reading the Director’s Point of Law magazine articles where he talked about the latest changes at the “Big Court” as he described the United States Supreme Court. Beginning in 2004, I tried to emulate the Director’s ability to speak directly to officers by writing myself on case law changes. He and I were successful in that because we were not “lawyers.” We were both law enforcement officers who happened to have attended law school. There is a true difference there. That difference probably gave us not only credibility, but it allowed us to find in a case only what mattered to the street officer, and to not waste officers’ time wandering in the legal weeds.

Though only acquaintances at best, our paths crossed one last time a couple of years ago. The Director was going to retire from writing Point of Law, and I was asked to step in. Big shoes, I thought. I sent him a note thanking him for what he had done for me over the years, and told him that I would try hard. His note back to me was better than great.

The Director passed away last week. I told you in my first Point of Law article that I was going to steal from Larry Welch the phrase “Big Court” when referring to the U.S. Supreme Court. I have done that. I will continue to do that. And, each time I type “Big Court,” I will think of the Director and his contribution to Kansas law enforcement. I hope you do too.

Thanks again, Director.

Colin

United States Supreme Court Update

Thu, 08 Apr 2021 18:34:33 GMT

We have been watching the following four street-law enforcement cases currently before the United States Supreme Court:

(1) Caniglia v. Strom, Question: Whether the “community caretaking” exception to the search warrant requirement extends to the home;

(2) United States v. Cooley, Question: Whether evidence should have been suppressed when an Indian tribe police officer detained and searched a non-Indian on a public highway within a reservation;

(3) Lange v. California, Question: Whether the pursuit of a person who has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant; and,

(4) Torres v. Madrid, Question: Whether an unsuccessful attempt to detain a suspect by use of physical force is still a “seizure” under the Fourth Amendment.

Torres v. Madrid

The Big Court recently decided the Torres case and changed many decades of legal understanding about when a Fourth Amendment “seizure” of a person occurs. In a 5-3 decision, the majority of justices said that law enforcement need not have taken a suspect into physical custody for there to have been a “seizure” and the protections of the Fourth Amendment to have been triggered.

In 2014 in Albuquerque, New Mexico, state officers attempted to contact Torres in a parking lot thinking she was the target of an arrest warrant. Torres, who later admitted to having been on methamphetamine at the time, entered her car and drove toward the officers. “Fearing the oncoming car was about to hit them, the officers fired their duty weapons, and two bullets struck Ms. Torres while others hit her car.” Torres did not stop, collided with another car, stole a second car, drove 75 miles and was eventually treated at a hospital and arrested the next day. She later pleaded no contest to assault on a police officer, aggravated fleeing from an officer, and the unlawful taking of a motor vehicle.

More than two years later, Torres sued the officers under the federal civil rights statute, 42 U.S.C. 1983, for deprivation of her Fourth Amendment rights alleging the officers used excessive force in an unreasonable seizure. The federal trial court, and later the 10th Circuit Court of Appeals, held for the officers holding that “no seizure can occur unless there is physical touch or a show of authority” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect. Since Torres drove away, the lower courts said that there was no seizure. Without a seizure, the Fourth Amendment was never triggered. (Note that Torres may well have had state tort law remedies but she had failed to file a state court case before the expiration of New Mexico’s statute of limitations; however, there is no statute of limitations in the text of § 1983).

The Big Court’s majority reversed, holding that “the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.” The case was sent back to the trial court. However, that does not necessarily mean any officer liability since the majority did say that “we leave open on remand any questions regarding the reasonableness of the seizure, the damages caused by the seizure, and the officers’ entitlement to qualified immunity.” So, the case holding was somewhat narrow and only re-defined when a “seizure” occurs for Fourth Amendment purposes.

The dissenting justices: Gorsuch, Thomas and Alito noted that “[u]ntil today, a Fourth Amendment ‘seizure’ has required taking possession of someone or something. To reach its contrary judgment, the majority must conflate a seizure with its attempt and confuse an arrest with a battery. In the process, too, the majority must disregard the Constitution’s original and ordinary meaning, dispense with our conventional interpretive rules, and bypass the main currents of the common law. . . . Neither the Constitution nor common sense can sustain it.”

The other three cases, Caniglia, Cooley, and Lange, remain pending and should be decided before summer.

Stormont-Vail v. Board of County Commissioners II

Tue, 29 Dec 2020 22:51:40 GMT

Kansas Court of Appeals No. 120,345; December 11, 2020

A panel of the Court of Appeals has recently issued an opinion and it is hopefully the last word in a civil case concerning which law enforcement agency truly owes an old hospital bill of an injured suspect. The case involved the chase of a murder suspect, a hostage situation, and an arrest where the suspect was injured. The main question was when there are multiple agencies involved in an event where a detained suspect is injured, which agency is responsible for the medical bill?

In 2009, multiple KHP, Geary County, Shawnee County, and Topeka personnel were involved in a chase. After the vehicle was disabled, the suspect ran into a house and held the occupants hostage. KHP set up a command post and ordered a precautionary ambulance. Supervisors from the agencies met and agreed on coordination of the differing on-scene units and skills. In the end, a tactical unit entered the house and arrested the suspect. During the arrest one of the officers’ weapons accidently discharged striking the suspect. Officers from multiple agencies traveled with the suspect to Stormont Vail Hospital, stayed during surgery, and did guard duty.

The hospital treatment bill was $41,700.00. Years of legal wrangling followed. Many years.

The question? Which agency was responsible for the medical bill under K.S.A. 22-4612. In pertinent part, that statute says: “[A] county, a city, a county or city law enforcement agency, a county department of corrections or the Kansas Highway Patrol shall be liable to pay a health care provider for health care services rendered to persons in the custody of such agencies the lesser of the actual amount billed by such health care provider or the medicare rate.”

First, the panel affirmed an earlier holding that under that statute “custody” includes both formal arrest and detention that is the equivalent of an arrest.

Second, what happens when there are multiple agencies involved in the arrest? Which agency has “custody?” The Court said that “[i]n a coordinated police action involving multiple law enforcement agencies, the agency ‘with operational control’ has the obligation under K.S.A. 22-4612 to pay for medical treatment requested during the action for an injured person taken into custody . . . [s]o if the response team acted in something other than a ‘willy-nilly exercise’ . . . then the test for operational control is simply this: Who was ‘the captain of the team?’”

But, wait, in this case the officer who caused the injury was not employed by the “captain of the team” agency. Does that make a difference? No, the panel said. “The obligation to pay under K.S.A. 22-4612 does not have a fault-based component to it.” The captain is still responsible.

Left unanswered by the opinion are those noted “willy-nilly” situations that involve less time and less coordination between responding agencies. And, they happen all the time. Agency heads now have something else to think about and plan for.

Colin

U.S. Supreme Court Update

Sat, 21 Nov 2020 19:25:08 GMT

The Court has already heard argument in one street law enforcement case, and this past week has agreed to hear two more. And, it is still early in the term.

We will be watching these cases:

Torres v. Madrid, Docket No. 19-292: On October 14th, the Court heard argument on the meaning of the Fourth Amendment’s term, “seizure.” The nation’s courts are split on the question: “does the shooting of a suspect constitute a Fourth Amendment seizure even if the force does not immediately result in custody?”

In 2014, thinking she was a suspect for whom they had an arrest warrant, New Mexico officers approached Roxanne Torres while she was in her car. Torres later testified that she did not hear any commands, saw the officers’ guns but did not recognize the officers in their dark clothing, and thought she was being carjacked. Torres drove away and the officers fired 13 shots, two hitting Torres. She crashed into another car, told bystanders to call 911, then without permission took an unattended running car and drove herself 75 miles to a hospital. Officers arrested her the next day, and Torres later pled no contest to aggravated flee and elude, assault a law enforcement officer, and car theft.

Torres sued the officers alleging the Fourth Amendment violation of using excessive force. The officers’ defense was that because an excessive force claim requires a seizure, and there was no seizure, there could be no claim. The federal district court agreed, and the 10th Circuit Court of Appeals affirmed. Torres appealed and the justices should make a decision after the first of the year.

Caniglia v. Strom, Docket No. 20-157: Following a domestic dispute involving a firearm and alleged mental instability, Rhode Island officers convinced Caniglia to go to a hospital for evaluation. Before the officers left the marital home, and after discussions with the spouse, officers were concerned with everyone’s future safety, entered the home and removed two firearms. Caniglia sued the officers for the alleged Fourth Amendment violation of entering his home without permission and without a search warrant. The officers defense was that their actions were protective and should be seen as valid under the “community caretaking” search warrant exception. The federal district court granted summary judgment to the officers, and the 1st Circuit Court of Appeals agreed. Interestingly, retired U.S. Supreme Court Justice David Souter sat by designation on the circuit court of appeals panel that voted 3-0 to affirm the officers’ position. Caniglia appealed and the Supreme Court has agreed to hear the case this term.

U.S. v. Cooley, Docket No. 19-1414: Just after midnight on U.S. 212 in Montana, a stretch of highway that passes through the Crow Tribe reservation, a tribal officer stopped to check on a pickup sitting on the side of the road with its motor running. After some interaction between the officer and the driver, Cooley, the officer arrested Cooley and searched the truck. Cooley was charged in federal court with weapons and drug charges. Cooley filed a motion to suppress the evidence found because he alleged that the tribal officer did not have authority to detain and search a non-tribe member on a road within a reservation. The district court and the 9th Circuit Court of Appeals agreed. The government appealed and the Supreme Court will decide the matter after the first of the year.

This case may well not have much practical effect in Kansas since K.S.A. 22-2401a provides for Tribal Officer authority and for interlocal agency agreements. We will wait and see.

Colin

Consent Searches at Kansas Car Stops (Second of Two Articles)

Sun, 08 Nov 2020 00:33:38 GMT

This is the second of two summary articles on the topic of consent searches during car stops. The first article discussed options when officers have developed reasonable suspicion that criminal activity is afoot other than the original reason for the stop. This article will discuss the options for officers whose suspicions are real but do not rise to the requisite reasonable suspicion to further detain and investigate.

As noted before, car stops are seizures under the Constitution and are considered temporary detentions which have been supported by reasonable suspicion to believe that a driver or other occupant of a car has, is or is about to commit a crime. Although an outlier in the law and the nation, Kansas does not allow officers to seek consent to search a car during a detention unless and until the officer has developed reasonable suspicion of a second crime occurring.

So, what are the options available to an officer who becomes professionally suspicious at a stop but is unable to acquire facts and develop inferences that would legally rise to reasonable suspicion authorizing the officer to further detain and investigate? First, and like at all such events, the officer could simply release the car believing that discretion is the better part of valor. That option becomes more appealing when the suspicions would be considered weak or debatable.

A second option is to transform the event from a temporary detention into a consensual encounter by finishing the original enforcement action, returning the driver’s license and any other property, and explaining to the driver that the stop is over and he or she is free to leave. A consensual encounter has been established if, under a totality of the circumstances, the officer’s conduct conveys to a reasonable person that he or she is free to refuse the officer’s requests or otherwise end the encounter.

Once a consensual encounter has been established, the officer may request that the driver agree to stay, answer more questions and/or consent to a search. Unlike the training of the past, there need not be any physical break between the ending of the detention and creation of the consensual encounter. For a consent to search to be valid, two conditions must be met: (1) there must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied.

Should the driver decline to consent, then the entire event is over. However, should the driver agree, then the officer may act on whatever consent the driver has given, for as long as the driver allows. Sometimes during an actual search, officers develop probable cause because of what they see or smell. At that moment, the search legally morphs from a consent search into a probable cause search, and any prior consent, or the possibility of withdrawal of that prior consent, becomes moot.

Some officers may have been trained that even with reasonable suspicion of a second crime that it is better to go into a consensual encounter, seek consent to search, and should that be denied then use that pending reasonable suspicion to re-detain the car for further investigation such as calling a dog. But, as already explained, that tactic is unnecessary. An officer with reasonable suspicion of a second crime may seek consent to search during the original detention. If denied, then call the dog or employ other investigative techniques.

In fact, using the re-detain tactic has informally been called into question by some members of the Kansas Supreme Court. In a concurring opinion in State v. Schooler three justices believed that such a re-detain tactic “reeks of fraud or coercion” and they “. . . would caution our law enforcement officers against using the promise of freedom in any attempt to circumvent the protections afforded by our Constitution.” In other words, those justices thought that telling a driver that he or she was free to go when the officer had no intention of allowing the driver to leave was at best a falsehood, and may well taint any consent to search that the driver might later give. Officers should therefore err on the side of caution when contemplating the use of a re-detain tactic.

For further research and understanding: State v. Schooler, 308 Kan. 333 (2018); Terry v. Ohio, 392 U.S. 1 (1968); State v. Thompson, 284 Kan. 763 (2007).

United States Supreme Court Update

The Court’s 2019 term ended on July 14, 2020 when it issued the last of 63 opinions for the year. As predicted, the only street law enforcement case was that of Kansas v. Glover, a 2016 car stop from Douglas County. In an 8-1 vote, the U.S. Supreme Court reversed the Kansas Supreme Court holding that it is a “commonsense inference” that absent any other information known to an officer, a vehicle’s registered owner would be the driver of a vehicle. And, such an inference, standing alone, is sufficient reasonable suspicion to stop the vehicle. See Kansas v. Glover, __ U.S. ___, 140 S.Ct. 1183 (2020).

It will be very interesting to watch the new legal arguments as they develop around Glover, and what those will mean for reasonable suspicion in our state. Kansas court opinions have for years been confusing about what facts and inferences amount to reasonable suspicion, despite the relatively low bar set by the seminal U.S. Supreme Court case of Terry v. Ohio.

The Court’s 2020 term will begin on the first Monday in October.

Colin

Short KSA Article on Consent

Wed, 14 Oct 2020 23:27:25 GMT

The following is an article published earlier this year in the Kansas Sheriff magazine. Thank you to KSA for allowing its reproduction here.

Consent Searches at Kansas Car Stops

(First Article of Two)

This is the first of two summary articles on the topic of consent searches during car stops. This first article discusses options when officers have developed reasonable suspicion of other criminal activity during the stop. The second article will review when officers become suspicious of other criminal activity but such suspicion does not rise to reasonable suspicion.

Consent is recognized as an exception to the Fourth Amendment’s warrant requirement for searches. A driver may therefore voluntarily consent to the search of the driver’s car. With that in mind, when can a Kansas officer request consent to search a car during a car stop?

Car stops are seizures under the Constitution. Courts view them as temporary detentions and analyze them under Terry v. Ohio (Terry Stop) requirements. All temporary detentions require an officer to have developed reasonable and articulable suspicion of a crime having been, being, or about to be, committed. Most car stops begin with a minor traffic infraction. They are brief in duration and the inquiries tend to be checking a driver for a license, insurance, registration and warrants. When those tasks and a verbal warning or ticket are completed, the car stop ends, the driver is released, and everyone goes on with their day.

However, sometimes during a car stop an officer hears, sees or smells something that raises the officer’s suspicions of other criminal activity. When the particular facts and inferences, taken together, rise to “reasonable suspicion” then the officer gains new constitutional authority to continue to detain the car for further investigation. The additional detention continues until the officer’s “second crime’ suspicions have been dispelled. Remember that an officer’s “gut hunch” that something criminal may be happening is not reasonable suspicion, and a hunch provides officers with no additional authority to do anything.

Some Kansas officers are under the impression that they can ask for consent to search a car at any time during a car stop. That is wrong. Other Kansas officers have been trained that they can never ask for consent to search a car while the driver remains in temporary detention. That too is wrong.

Kansas courts do not like fishing expeditions. Fishing expeditions occur when at a car stop for a minor traffic offense an officer without reasonable suspicion of other criminal activity inquires about criminal topics which were not the basis for the original stop. To stem those unjustified expeditions, Kansas courts have narrowed when officers may request consent to search a car. During a temporary detention like a car stop, Kansas officers are required to have reasonable suspicion of other criminal activity before requesting consent to search. Said another way, should an officer have developed reasonable suspicion of other criminal activity then the officer may request consent to search the car. There is no requirement for the officer to have first ended the detention before asking for consent.

In summary, a driver may voluntarily consent to a search of their car. However, Kansas courts prohibit officers from seeking consent to search during a car stop detention unless and until an officer develops reasonable suspicion of other possible criminal activity afoot. Should the officer have such reasonable suspicion of other crime, then the officer has authority to hold the car for a dog sniff, additional questioning and/or to request consent to search. There is no requirement for the officer to first seek to transform the stop from a detention into a consensual encounter. In fact, as we will see in the next article, some attempts at transformation may actually taint any future voluntary consent.

For further research and understanding: State v. Smith, 286 Kan. 402 (2008); State v. Cleverly, 305 Kan. 598 (2016); State v. Clardy, 406 P.3d 922 (Kan.App., 2017)(unpublished); State v. Hanke, 307 Kan. 823 (2018); United States v. Knapp, 917 F.3d 1161 (2019); Rodriguez v. U.S., 135 S.Ct. 1609 (2015).

Colin

State v. Christopher Harris, No. 116,515

Tue, 04 Aug 2020 16:50:09 GMT

The Kansas Supreme Court has by a 4-3 vote found unconstitutionally vague the residual clause “or any other dangerous or deadly cutting instrument of like character” in K.S.A. 21-6304 because the definition fails to provide an explicit and objective standard of enforcement.

Christopher Harris is a convicted felon. Harris was in a disturbance and pulled out a pocketknife on his adversary. About that time a police officer came on the scene, and Harris was arrested for being a felon in possession of a knife. “Knife” in the statute means “a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character . . .”

The trial court had no problem with that definition and convicted Harris. The Kansas Court of Appeals agreed. But, a badly divided Kansas Supreme Court has held that because enforcement officials must ask themselves what exactly is a dangerous cutting instrument of like character, the Court was unable to discern a sufficiently objective standard of enforcement in the definition’s language. Instead, the majority said, “we are left with the subjective judgment of the enforcement agencies and actors. [What is a dangerous or deadly cutting instrument of like character?] A pair of scissors? Maybe. A safety razor blade? Perhaps. A box cutter? Probably, but would that decision be driven by an objective rule or a historically contingent fear of box cutters?”

And, it certainly did not help the State’s case that the Kansas Department of Corrections parolee handbook states “[a]n ordinary pocket knife with a blade no longer than 4 inches is not considered by law to be a dangerous knife, or a dangerous or deadly weapon or instrument.”

The Court’s dissenters would have agreed with the lower courts, saying that a pocketknife with a 3 ½ inch sharp, serrated blade cannot be mistaken as something outside the foreseeable statutory meaning of a “knife.” But, that thought did not prevail. So, until the statutory definition of “knife” is fixed, a felon is now only prohibited in K.S.A. 21-6304 from possessing a firearm, dagger, dirk, switchblade, stiletto, or a straight-edged razor. What everyone would probably agree to be a “knife” has been removed from the list.

Colin

Montgomery v. Saleh; #117,518/117,519

Mon, 13 Jul 2020 20:48:38 GMT

Recently, a very divided Kansas Supreme Court dealt a blow to law enforcement immunity in vehicle pursuits when an uninvolved third-party is injured. Only a few facts are necessary here because the Court did not actually resolve the lawsuit. Instead, it decided a few legal issues and then sent the case back to the district court. So, which party will ultimately prevail in this particular lawsuit is unknown at this juncture. Based upon the following reviewed legal issues, the case will settle, or a judge or jury will decide it by applying these new standards to the facts in this particular chase event. That said, it is the following reviewed legal issues that are the point of this summary.

In 2010, a KHP Trooper was involved in a chase in Topeka involving a vehicle driven by Robert Horton. The chase lasted about a minute and a half and covered about a mile. The Trooper decided to end the chase and was about two-and-a-half blocks behind Horton when Horton ran through a red light and collided with a vehicle driven by Shelby Montgomery, an uninvolved third-party. A passenger in Montgomery’s vehicle, Scott Bennett, was also injured. Montgomery and Bennett sued. Prior to trial, the district court judge granted summary judgment to the State and the Trooper. Montgomery and Bennett appealed. A split Court of Appeals panel reversed. The State and Trooper appealed to the Kansas Supreme Court and it issued its opinion on June 26, 2020 on the following issues, all of which directly affect law enforcement officer immunity during a flee and elude event.

In a civil negligence claim like this one, a plaintiff must establish the existence of: 1) a duty of care owed to the plaintiff; 2) a breach of that duty of care; 3) an injury to the plaintiff; and, 4) the breach of that duty of care having been the proximate cause of the plaintiff’s injury.

First, K.S.A. 8-1506 “grants drivers of authorized emergency vehicles certain privileges that excuse them from following traffic laws under specified conditions. Along with these privileges, subsection (d) provides: ‘The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others.” The Court emphasized that such a statutory duty is a “specific duty owed to all persons, unlike other general duties–like the duty to preserve the peace—which is owed to the public at large.” That court holding results in injured individuals having the right to sue officers and their employers for a breach of the statutory duty in K.S.A. 8-1506.

Second, for a breach of that duty to have occurred, a plaintiff must show that law enforcement drove “a vehicle under circumstances that show a realization of the imminence of danger to another person or property of another where there is a conscious and unjustifiable disregard of that danger. This standard applies to the officer’s decision to initiate the pursuit of a fleeing suspect, the officers decision to continue that pursuit, and the officer’s manner of operating his or her vehicle during the pursuit.” The majority opinion reminds us that the Court had in 2007 in Robbins v. City of Wichita implicitly held that K.S.A. 8-1506 imposed such a specific duty on law enforcement. So, it being mentioned in this case should be nothing new. However, it is not at all clear that the law enforcement community was aware of that 2007 “implicit” holding.

Third, the Court defines proximate cause as a cause that “in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.” “We also note a majority of jurisdictions have concluded that causation in police pursuits is a question of fact for the jury. We now join this majority [of jurisdictions] and hold [that] law enforcement’s conduct during a pursuit can be the legal cause of a third party’s injuries.”

Fourth, the Kansas Tort Claims Act provides that governmental entities may be held liable for the negligence of their employees. However, the KTCA also sets out an extensive list of immunities to that liability, including the “discretionary function exception” and the “method of providing police … protection exception”:

**Under the discretionary function exception government actors are immune from liability for “any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.” But, the Court majority held that because of the statutory duty to drive with due regard for the safety of all persons in K.S.A. 8-1506, an officer’s decision to pursue or to continue to pursue is not a discretionary function. Thus, no immunity here for car chase decisions.

**The method of providing police … protection exception “is aimed at such basic matters as the type and number of fire trucks and police cars considered necessary for the operation of the respective departments . . . a city is immunized from such claims as a burglary could have been prevented if additional police cars had been on patrol, or a house could have been saved if more or better fire equipment had been purchased. . . “ “[The] pursuit of Horton is not a basic matter of police protection, such as the number of personnel and cars necessary for the operation of the police department.” Thus, no immunity here for car chase decisions.

The vote on this case was 4-3. The Court for this matter was made up of four justices and two court of appeals judges who were sitting in because of the two current vacancies on the Supreme Court.

Any changes to this new case law will probably have to be legislative and involve amending the KTCA list of exceptions, especially the definition of the discretionary function exception.

Kansas v. Glover; No. 18-556

Mon, 06 Apr 2020 21:49:56 GMT

The United States Supreme Court has today reversed the Kansas Supreme Court in the traffic stop case of Kansas v. Glover. The vote was 8-1 with Justice Sotomayor in dissent.

The case facts were straightforward. The route to the final resolution was less so.

In 2016, a Douglas County deputy ran the tag on a truck the deputy was following. It came back registered to Charles Glover Jr. The deputy also learned that Glover’s driver’s license was revoked. Having no information to the contrary, the deputy inferred that the registered owner was the driver. The deputy stopped the truck. Charles Glover Jr. was driving the truck.

The State charged Glover. Glover filed a motion to suppress arguing that the information possessed by the deputy did not rise to the “reasonable suspicion” necessary for the stop. The district court agreed and suppressed. The State appealed, and the Kansas Court of Appeals reversed. Glover appealed, and the Kansas Supreme Court reversed. The State sought review by the United States Supreme Court, and three years after the stop, the State has prevailed.

The Big Court (so aptly-named by Director Larry Welch, KBI retired) initially responded by reaffirming comments from its past holdings: 1) reasonable suspicion is a less demanding standard that can be established with information that is different in quantity or content than that required to establish probable cause; 2) such a standard depends on the factual and practical considerations of everyday life on which reasonable and prudent men [and women], not legal technicians, act; 3) courts cannot reasonably demand scientific certainty . . . where none exists; rather, they must permit officers to make commonsense judgments and inferences about human behavior; and, that such judgments and inferences need not rule out the possibility of innocent conduct.

“Before initiating the stop, Deputy Mehrer observed an individual operating a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ. He also knew that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle. From these facts, Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.” [emphasis added].

The Big Court went on to remind the lower courts that officers may use commonsense, analyze probabilities, and may take into account knowledge gained in their personal lives. In other words, reasonable suspicion analysis is not limited to an individual officer’s police training and experience.

That said, the Court warned that its decision is narrow in scope. “ . . .{t]he presence of additional facts might dispel reasonable suspicion. For example, if an officer knows that the registered owner of the vehicle is in his mid-sixties but observes that the driver is in her mid-twenties, then the totality of the circumstances would not” amount to reasonable suspicion to stop the car.

This is a very valuable decision in our quest to better understand what sets of facts and circumstances rise to reasonable suspicion. And, it is a case that hopefully moves Kansas back toward the original standards of reasonable suspicion in Terry v. Ohio, 392 U.S. 1 (1968).

State v. Shelbie Ellis; No. 120,046

Tue, 19 Nov 2019 12:31:18 GMT

In 2018, Shelbie Ellis, a female customer, entered a convenience store restroom but never came back out. After 45 minutes the clerk called the police. Later joined by a second officer, the first officer arrived and contacted Shelbie in the restroom. After being asked if she was alright, Shelbie said that she was having stomach issues. The officer did not ask if she needed medical attention, but did ask for Shelbie’s driver’s license. Shelbie voluntarily gave over her license which the officer then kept. The officer ran a warrant check with the information, asked further questions of Shelbie, but never returned the license. The two officers and Shelbie later moved from the restroom to the parking lot to check for the arrival of Shelbie’s intended ride. After some additional back and forth outside, the officer inquired about Shelbie’s drug use, and asked if he could search her purse. Shelbie declined the search. Within a few minutes the dispatcher told the officers that there was an outstanding out-of-county arrest warrant for Shelbie. The officers arrested her on the warrant, and upon a search of her purse incident to the arrest, officers found methamphetamine and a pipe. The event had lasted between 5 and 10 minutes.

After the trial court denied Shelbie’s suppression motion and found her guilty of the meth possession, she appealed. A panel of the Kansas Court of Appeals recently reversed her conviction holding that the meth had been illegally seized and should have been suppressed.

First, the out-of-county arrest warrant and the case underpinning that arrest warrant is not affected by this illegal seizure holding. Only the new meth evidence found in Shelbie’s purse, and the new and separate criminal case arising from the meth, has been damaged.

Second, why then the suppression of the meth? We have discussed this issue before, and Kansas law has been settled for some time.

At the suppression hearing, the officer agreed that he had been dispatched on a welfare check, and that at no time prior to learning about the outstanding arrest warrant did he have reasonable suspicion that Shelbie had, was, or was about to commit a crime.

“Welfare checks—which are constitutionally analogous to public-safety stops—fall under law enforcement’s community-caretaking function. These encounters occur when an officer checks on a person’s welfare for safety or assistance reasons . . . A welfare check ‘is not for investigative purposes’ . . . Rather, it must be ‘divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”

Kansas courts use a three-part test to define the contours of a valid welfare check: 1) an officer has the right to stop or investigate when there are objective, specific, and articulable facts to suspect that a person needs help or is in peril; 2) if the person needs help, the officer may take the appropriate steps to render assistance; and, 3) when the officer believes that the person is no longer in need of assistance, any further actions constitute a seizure. “These considerations differentiate welfare checks and public-safety stops—which are performed under law enforcement’s caretaking function—from investigative detentions [based upon reasonable suspicion of criminal activity] and arrests [based upon probable cause of criminal activity] . . .”

When an officer holds on to a driver’s license or other property, a reasonable person will not believe that they have the right to leave. Legally, that means that Shelbie was being detained (whether the officer realized it or not), and because the officer did not have reasonable suspicion that a crime was being committed, that detention was unlawful. Thus, because the detention was illegal any evidence flowing from the detention should probably have been suppressed. [There are circumstances when the Exclusionary Rule would not have applied, but the panel held that those are not present here. The State had also argued that Shelbie had voluntarily given over her license, but the panel dismissed that contention too because the officer had kept the license during the NCIC check and questioning. “This court has held on multiple occasions . . . that an officer goes beyond the permissible scope of a welfare check or public-safety stop by retaining a person’s identification and running a records check for wants and warrants.”].

So, bottom line and best practice: officers should remember that they have no authority to compel identification from a person at a welfare check; and once it is found that the person does not need further assistance, then the officer should just leave. Police practice or department policy or supervisor directions notwithstanding. Such practices do not override the Constitution.

In Shelbie’s case, after Shelbie had made it clear that she did not need assistance: 1) the officers should have left; or, 2) at most, the officers could have asked for Shelbie’s affirmative consent to identify herself. And, after obtaining the identification, the officers should have immediately returned the ID, walked away, run the warrant check away from Shelbie, and when it hit, re-contacted Shelbie and arrested her on the warrant. It was the retention of the DL, the close remaining with Shelbie, and all of the unnecessary questioning that the panel justifiably did not like.

Lastly, there is an unfortunate comment by the panel in this case that the defense bar may cite to in the future. The panel hints that no person’s identification obtained at a welfare check, even given voluntarily and under no-detention circumstances, can be used for a warrant/NCIC check because that police action would be a “criminal investigation.” The panel’s comment is not supported in the case law, and interestingly the panel does not cite to any. Why? Probably because no person has an expectation of privacy in their personal criminal information inside of a warrant file or in the NCIC database.

Colin

Searches of Containers During Arrests

Wed, 23 Oct 2019 13:19:14 GMT

What exactly is the search authority of a Kansas law enforcement officer following a lawful arrest? The issue is generally divided into an examination of the three distinct “areas” of space that exist at the location of every arrest: 1) the area made up of the arrestee’s person; 2) the area away from the arrestee’s person but still within the arrestee’s immediate control; and, 3) the area outside and away from #1 and #2.

#1. Arrestee’s Person: By virtue of a lawful arrest, an arrestee has a reduced expectation of privacy in his or her person, their clothing, and in any containers within their clothing. Courts have for a century held that following a lawful arrest the search “of the person” is reasonable under the Fourth Amendment because it protects the arresting officer from harm by locating and isolating weapons, and by preventing the destruction of evidence. Thus, officers have blanket constitutional authority at every lawful arrest to search the person of all arrestees.

#2. Arrestee’s Immediate Control: However, when the search area moves away from the arrestee’s person, a lawful arrest standing alone may not justify searching anything else. At many arrests, a container like a backpack or a purse was being carried by the arrestee, or is found nearby. The first question is: following the arrest, was the container in question still located within “the grabbing area” of the arrestee? Courts will look to the number and relative locations of the officer(s) and the suspect(s), the time of day, and the general dangerousness of the particular situation. If the arrestee has been handcuffed and/or removed from the container’s location (or vice versa), the search-incident-to-arrest authority to look into the closed container has probably evaporated. Should an arrestee for some reason not have been restrained, and is still within the grab area, and the officer can later articulate that it was reasonable under the circumstances to believe that the closed container had in it a weapon or destroyable evidence, then the search-incident-to-arrest authority would allow a search of the container. As a practical matter, at a typical arrest scene, and contrary to popular belief: there will be few instances where search-incident-to-arrest authority can be used to search a closed container such as a purse or backpack that has been separated from an arrestee.

#3. Other Areas Surrounding Arrest Scene: There is no recognized search-incident-to-arrest search authority for those areas beyond an arrestee’s person or the grab/immediate control area, such as other rooms of a house, or outbuildings near a public-arrest scene.

But, should there be no authority arising from the arrest itself, sometimes an inventory search of a closed container taken into custody at an arrest scene may work. Inventory searches are one “well-defined” exception to the search warrant requirement. An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items, and to protect against false claims of loss or damage.

The justification for an inventory search does not rest upon probable cause or the need to search for evidence of a crime. Rather, a warrantless inventory search is only reasonable under the Fourth Amendment because it is an administrative action that attempts to protect both government agencies from liability and the property of citizens entangled in the justice system.

So, for an inventory search to be lawful, first a law enforcement agency must have lawful custody of the property to be inventoried. Officers may impound the personal effects of an arrestee if such impoundment was reasonable under the circumstances. A home arrest may be viewed differently than a public place arrest. For example, at a house it would be more reasonable to allow the arrestee to leave their backpack at their home; but, an arrest in a grocery store would be different. It would be unreasonable to leave the arrestee’s backpack in the frozen food isle “or expect someone at the store to take possession . . . not knowing what might be in it.”

The second requirement of a lawful inventory search is for the agency to have in place a standardized inventory policy. The policy need not be written, but officers will have to testify in detail to what the policy is and how it operates. The more discretion allowed by a policy, the more likely the policy will be held unreasonable and therefore unlawful. Inventory searches are to be narrow in application, and each inventory search handled in the same manner. Inventory searches are not to be used to further a criminal investigation.

Written inventory policies are the best practice. When an inventory search is contested at a suppression hearing, the prosecutor will be required to prove by a preponderance of the evidence that the searching law enforcement agency had a recognizable, standardized policy. Written policies are much easier to prove than unwritten policies. Constitutionally, if an agency has no inventory search policy, then its officers have no inventory search authority. It is as simple as that.

Should during a lawful inventory search evidence of a crime be found, then best practices would highly recommend that the officer stop the inventory search and immediately apply for a search warrant because the search has suddenly transformed from a routine administrative action into a new criminal investigation.

That all said, there may well be other legal reasons to search a particular container or area at an arrest scene such as probable cause/exigent circumstances, consent, plain view or protective sweep. Unfortunately, discussion of those alternative and overlapping authorities must await another day.

For further research and understanding: Chimel v. California, 395 U.S. 752 (1969); United States v. Robinson, 414 U.S. 218 (1973); State v. Copridge, 260 Kan. 19 (1996); State v. Baker, 306 Kan. 585 (2017); State v. Ritchey, 56 Kan.App.2d 530 (2018); United States v. Knapp, 917 F.3d 1161 (2019).

State v. Sergio Arrizabalaga; No. 120,209

Fri, 09 Aug 2019 14:11:50 GMT

A split Kansas Court of Appeals panel has, at least for now, changed Kansas law concerning the timeline for the calling of a drug dog at a traffic stop. For decades we have all understood that based upon reasonable suspicion of a second crime occurring: an officer could continue to detain the car, call for the nearest drug K-9, and wait. Yeah, well, so much for that last part.

Sergio Arrizabalaga was stopped for a traffic violation on an evening in 2017. The facts are not in dispute and the timeline is really what is important to understanding this case. The facts and timeline are: 1) the officer had reasonable suspicion of a traffic violation to stop Sergio and to perform a traffic investigation; 2) during the stop and a conversation with Sergio, the officer developed (secondary) reasonable suspicion that a drug offense was occurring; 3) within 8 minutes, the officer had performed his traffic stop duties, gave Sergio a warning ticket, and released him from the traffic detention; 4) during the next 16 minutes the officer re-contacted Sergio, Sergio consented both to stay, to answer more questions, and, later, to a search of the vehicle; 5) after some questions but before the vehicle search began, Sergio revoked his consent to search; 6) still having (secondary) reasonable suspicion of a drug offense occurring, the officer re-detained Sergio and called for a drug dog; 7) the nearest K-9 took 24 minutes to arrive; 8) upon arrival, the dog alerted to the odor of controlled substances coming from the vehicle (PC to search), and a search found 111 pounds of marijuana.

The trial court later held two suppression hearings. In the first, the trial judge found that the officer had developed reasonable suspicion of a drug crime occurring during the initial traffic stop investigation portion of the event. In the second hearing, the trial judge found that even with such reasonable suspicion of a second crime, that nevertheless the officer had waited too long to call the dog, and therefore the overall stop had been unreasonably lengthened and had become unlawful. The State appealed, arguing that despite when the officer might have called for a dog, reasonable suspicion of the then-occurring drug crime was all that was necessary to detain the vehicle until the closest drug dog was able to arrive.

In a 2-1 decision, the appeals panel agreed with the trial judge, holding that the officer should have called for the drug dog at the moment in time that the officer had developed reasonable suspicion of the drug crime; that the officer should not have waited until after he finished the traffic stop, after the consensual encounter questioning, after Sergio had consented to a search, and after Sergio had revoked his consent to search.

Judge Gardner, the dissenting judge, said wait a minute……that is not the law. Quoting the U.S. Supreme Court, Judge Gardner wrote, “In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished by ‘less intrusive’ means does not, by itself, render the search unreasonable. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.” It was Judge Gardner’s position that 1) judges and other legal experts continually argue at what point in time during an event that an officer might have developed reasonable suspicion. And, it has never been the law that simply because an officer thinks he or she has reasonable suspicion that such a belief is binding upon the case or the courts; and, 2) the question is not what the officer didn’t do (call for the dog earlier). The question should be whether or not what the officer did do was reasonable under the particular circumstances of this particular stop (ask more questions, seek consent to search, and only when all that did not work, then call for the nearest dog). That great dissent, however, was unable to carry the day.

The prosecuting County Attorney’s Office intends to request review by the Kansas Supreme Court. Such a review is discretionary with our Supreme Court. Hopefully, they will take it and fix this. In the meantime, officers should think about calling for a dog sooner than later.

State v. Devon Gill; No. 119986

Fri, 12 Jul 2019 16:31:51 GMT

A divided panel of the Kansas Court of Appeals has upheld 2-1 a trial court that had earlier found that an officer had unreasonably used race in deciding to initiate an enforcement action.

K.S.A. 22-4609 says: “It is unlawful to use racial or other biased-based policing in: (a) determining the existence of probable cause to take into custody or to arrest an individual; (b) constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a vehicle; or, (c) determining the existence of probable cause to conduct a search of an individual or a conveyance.”

In 2017, an officer was sent to an apartment complex on a theft call. No suspect information had been provided. As the officer exited his car in the complex parking lot, the officer testified that he detected the odor of marijuana. In a nearby SUV with its windows rolled down were two African-American men. The officer called out to the men, “You guys call?’ “No, sir” was the response.

The panel majority said: “Taking a step towards the apartment building, [the officer] turned back towards the SUV, and while walking about eight steps to the passenger door, asked, ‘Where you all from?’ He received a reply, ‘Not here.’ When the driver, later identified as Gill, started to drive away, [the officer] let Gill know that he was not free to leave and that he had to answer [the officer’s] questions: ‘Hold on. I’m talking to you . . . Because I got called out to this area . . . I know you didn’t call me. Put the vehicle in park.’ At this point, [the officer] began addressing Gill as ‘dude’ and although Gill had not committed a traffic violation and seemingly was lawfully parked, [the officer] demanded Gill’s driver’s license and proof of insurance ‘because I’m asking for it.’ Eventually, after about another 39 seconds and some 94 seconds after the encounter started, [the officer] stated that he could smell marijuana in the SUV. [A backup officer] arrived five minutes later and [the first officer] told [the backup officer] why he walked over to the SUV – ‘I’m out here for a theft case. I pull up in my vehicle and these two are staring at me hard and start looking back so I start walking over here.”

A search of the SUV found 18 individually wrapped baggies of marijuana. Upon being charged, Gill filed a suppression motion alleging race-based policing had been unreasonably used in the officer’s decision to initiate the enforcement. At the suppression hearing, the trial judge found that 1) the officer had not approached the SUV because of the theft investigation; and, 2) the officer’s testimony concerning the point in time when he smelled marijuana was not credible because from where the officer’s patrol car was located, the odor of marijuana could have come from a different car parked closer to the officer or from the nearby apartment complex.

Based on that trial court finding, the panel majority held that since neither the theft investigation nor the odor of marijuana were reasons for the enforcement action, then the reason must have been the officer’s statement, “These two are staring at me hard.” Supporting that belief was the officer having “contemptuously refer[red] to Gill as ‘dude.”

The dissenting member of the panel said hold on a minute: “. . . I draw a completely different conclusion from the evidence as the district court did. There is simply no evidence of racial animus . . . there is no evidence in the record on appeal establishing that ‘staring at him hard’ equates to a race-based decision to initiate law enforcement action. There is no testimony that [the officer] approached the vehicle because its occupants were African-American, nor is there testimony that such a statement is jargon or code for a race-based foundation of the stop. I view the words ‘staring at him hard’ in this context as possible evidence of a guilty mind on the part of Gill instead of racial animus. Although the district court said that [the officer] should have investigated the apartment complex and another vehicle – which appears to have been unoccupied with closed windows – before investigating whether the smell of marijuana was emanating from Gill’s vehicle, this is not a requirement the Kansas Supreme Court has placed on officers . . . the district court and the majority seem to view these four words [staring at him hard] in isolation from [the officer’s] entire statement. [The officer] stated, ’I’m out here for a theft case. And I pull up in the vehicle. These two are staring at me hard and then start looking back so I start walking over here – I smell the odor of marijuana.’ And the back up officer, who was approximately 8 to 10 feet away from Gill’s vehicle, replied, ‘Jesus, I can smell it from here.”

The dissenting judge was not done: “[a]nd no reasonable person could construe [the officer’s] use of the term “dude” when addressing Gill as racially insensitive . . the majority’s suggestion that [the officer] may have been motivated by his ‘implicit bias’ is also completely unsupported by the record.”

As of this writing, the State has not requested review by the Kansas Supreme Court.

What really makes this case extra hard for the State was the trial court’s officer credibility finding. When the marijuana odor was removed from the equation, the argument became very difficult.

That all said, here is another point in the case worth mentioning: a court can suppress evidence for violation of K.S.A. 22-4609 even when the violation does not involve the Exclusionary Rule and the Fourth Amendment (search and seizure). The Kansas Supreme Court held in an earlier case that K.S.A. 22-3216(1) can be used to suppress evidence in a biased-based policing matter. Remember that in this case the argument was not a search and seizure violation, rather it was a violation of the biased-based policing statute – the unreasonable initiation of enforcement.

Reply all

Forward

State v. Palacio; No. 116,899

Sun, 30 Jun 2019 20:11:28 GMT

State v. Palacio; No. 116,899

Macio Palacio Jr. was involved in a disturbance where he fired shots at the wrong vehicle and an innocent female passenger was killed. Palacio was arrested and interviewed at the station. Because Palacio was in arrest custody, and was being asked questions concerning the criminal event, the interviewing officers Mirandized him. He agreed to speak to them. One of the interviewers told Palacio that he knew Palacio was at the shooting and that Palacio’s gun had been used. Another interviewer said, “I think about some poor girl’s parents.” In response, Palacio said, “[h]onestly, I just want to talk to my attorney.”

The trial judge later found: “[A]fter defendant asked to speak to an attorney, [the Sergeant] proceeded to advise the defendant of the offenses he and his girlfriend were being charged with. The officers then asked the defendant if he had any felony convictions or drug charges. After the defendant answered these questions, the officers stood up to leave and stated they would get the paperwork prepared. The defendant then stated he wanted to speak further to the officers and asked them to sit down. After [the Sergeant] inquired as to whether the defendant wished to speak to them without an attorney, the interrogation continued.”

After restarting the interview, Palacio admitted to being the shooter. After being charged, he requested that the trial court suppress all of his statements made after he asked to speak to his attorney. Following a hearing, the trial judge suppressed only the statements made by Palacio between the time that he asked to speak to an attorney and when he told officers that he wanted to speak further with the officers. Palacio was convicted and appealed saying that the statements of the officers, and the questions that they asked immediately after Palacio had invoked his right to counsel, were interrogative and thus a constitutional violation. In essence, Palacio argued that the interrogation never ended.

The Kansas Supreme Court first noted that “once the right to have counsel present during interrogation has been invoked, the courts impose a relatively rigid requirement that interrogation must cease. The interrogation can continue only after a lawyer has been made available or the suspect reinitiates the interrogation . . . Although Palacio asked the officers to sit down and told them he wanted to talk without a lawyer present after he listened to those statements and answered the questions, his comments would not qualify as reinitiation if they occurred after interrogation. A valid waiver of a previously asserted right cannot be established by showing only that the suspect responded to further police-initiated custodial interrogation, even if the suspect has been advised of his rights.”

Interrogation is “express questioning” or “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The Supreme Court then held that “express questioning is not per se interrogation. Rather, it is subject to the same test as an officer’s other conduct. An officer’s words or actions, including explicit questioning, is interrogation only if the officer should have known that the questioning was reasonably likely to elicit an incriminating response from the suspect.”

The comments and questions in Palacio’s case were either declarative statements meant to inform Palacio of the reasons he and his girlfriend were in custody, or they were questions that did not otherwise concern Palacio’s involvement in or knowledge of the crimes the officers were investigating. The officers were not offering any information for Palacio to consider or pressuring him to change his mind [about speaking to an attorney]. The officers did not violate Palacio’s Fifth Amendment rights.

As for asking for the interview to continue, the Supreme Court agreed with the trial court that Palacio knowingly and intelligently waived his previously invoked right, and that his statements, “showed a desire . . . to re-engage in dialogue with law enforcement about the investigation.”

Then, the Supreme Court took up the issue of whether Palacio’s confession as the shooter was voluntarily given. To decide that question, Kansas courts look at the following factors: 1) the accused’s mental state; 2) the duration and manner of interrogation; 3) the ability of the accuse on request to communicate with the outside world; 4) the accused’s age, intellect, and background; 5) the fairness of the officers in conducting the interrogation; and, 6) the accused’s fluency with the English language. Palacio argued only the fifth factor: that the officers conducted the interrogation unfairly.

The Supreme Court again agreed with the trial judge who had earlier found based upon the recorded interview that “the officers spoke to the defendant in a polite and conversational tone . . . The officers did not at any time threaten, coerce, or engage in deceptive practices during the interview. No promises were made . . . the defendant was treated fairly by the officers . . .”

The Supreme Court did note that Palacio also complained that the interviewing officer’s statement “I think about some poor girl’s parents” was coercive. But, “[p]olice appeals to the defendant’s sympathies, such as the now-famous ‘Christian burial speech’ ploy, ‘do not automatically render a confession involuntary. Rather, “[t]heir use must instead be considered in conjunction with the rest of the circumstances.” Because none of the other factors in the test for voluntariness suggested coercion, that single statement, even if it was coercive, failed to render the confession involuntary.

Update on Use/Reporting of Forfeiture Proceeds/Cases

Wed, 08 May 2019 19:20:16 GMT

Since 2016 the Kansas Legislature has been reviewing our state’s law enforcement policies concerning civil asset forfeiture. On the recommendation of a 2017 Kansas Judicial Council subcommittee report, amendments were made in 2018 to the state forfeiture act. And, those changes will probably not be the final word. The Legislature will take some time to gather additional information and then again review the reform activists’ arguments. In a nutshell, the complaints tend to be: 1) a law enforcement tool that removes property from criminal use and benefit is bad public policy; 2) forfeiture of property should first require a criminal conviction of those involved; 3) law enforcement should not receive the proceeds of asset forfeiture; and,4) Kansas law does not provide sufficient due process to property owners and possessors before forfeiting property.

Holding Seized and Forfeited Monies: One important 2018 change concerned how Kansas law enforcement agencies are to hold and process seized, and later forfeited, monies. With those requirements in mind, administrators should immediately put into place procedures that prevent the commingling of the different kinds and sources of funds. Agencies should now have the following separated funds: 1) a holding fund for seized monies that are pending state court forfeiture; 2) a law enforcement trust fund for monies forfeited by a state court and to be used in the future by that law enforcement agency; 3) a fund to hold and use federal court forfeited funds that have been shared with the Kansas agency through the federal equitable sharing program; and, 4) a fund to hold and expend state drug tax sharing funds from the Kansas Department of Revenue. There should be no private bank accounts because all forfeited monies are to be received, held, budgeted, and expended through the same process regulating other public funds. Lastly, all interest earned by forfeiture and drug tax accounts should be returned to those accounts and should not be sent to the general fund.

Spending Forfeited Monies: The second change important to administrators, also effective on July 1, 2018, was some better guidance on how to lawfully expend monies forfeited in state court proceedings. For many years it has been both national and Kansas policy to send the proceeds of civil forfeiture to the law enforcement agencies that provided the investigative and litigation resources necessary to enforce the forfeiture laws. In Kansas, those forfeited funds were to then be expended by the law enforcement agencies for “special, additional law enforcement purposes.” In essence, the general policy redirected criminal property to a more lawful use while at the same time provided additional non-tax funding to law enforcement agencies. With the 2018 amendments, and thanks directly to retired Chief Ed Klumpp, Kansas agencies now have much better guidance about what the phrase “special, additional law enforcement purpose” means. Inspired by federal equitable sharing use rules, an amendment to K.S.A. 60-4117(e) now lists twelve general guidelines of proper expenditures, including things like law enforcement equipment, training, travel, and sharing between agencies.

Reporting Seized and Forfeited Property: Prior to 2019, law enforcement agencies were only required to annually report forfeiture receipts and expenditures to their respective governing bodies. That requirement has been repealed and two new reporting requirements will become effective July 1, 2019.

First, all Kansas law enforcement agencies that seize property for civil forfeiture will be required, upon final disposition of the forfeiture case, to report that information to a new on-line state forfeiture repository operated by the KBI. Law enforcement agency administrators will need to begin reporting all cases that have a final disposition occurring on and after July 1, 2019, even if the original seizure of the property occurred prior to July 1, 2019.

Second, and on an annual basis, all Kansas law enforcement agencies (whether they have seized property for civil forfeiture or not), will be required to report monies and property forfeited, held, and expended during the previous calendar year. Even if none, an annual report has to be filed. The first annual report will be due in 2020 and will cover the six-month period July 1-December 31, 2019.

KBI is currently completing work on the new reporting program’s rules, regulations, and online website. KBI is committed to assisting agency administrators in complying with the new requirements, and KBI personnel are currently on the road doing training sessions to fulfill that goal. Questions about the repository, online access, and new reporting requirements should be directed to:

Jessica Crowder, Program Consultant II
785-296-8338
Jessica.Crowder@kbi.ks.gov

Mitch Beemer, IBR Unit Manager
785-296-8279
Mitch.Beemer@kbi.ks.gov

Timbs v. Indiana; 17-1091

Wed, 08 May 2019 14:48:35 GMT

The 8th Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The “excessive fines” clause of that Amendment protects against “grossly disproportional” fines. Think small crime, huge fine. In 1993, the U.S. Supreme Court held that civil asset forfeiture cases brought by the federal government were quasi-punitive and were therefore subject to the 8th Amendment’s excessive fines clause. Since then, when a federal court forfeits property gained or used in crime, that decision is subject to a “gross disproportionality” review. Think small federal crime, huge federal forfeiture of property. Thus, the 8th Amendment requires a balancing of community and individual interests.

Tyson Timbs was convicted on state theft and controlled substances charges. At his arrest, Indiana authorities seized his $42,000 Land Rover that had been purchased with his late father’s life insurance proceeds. The State of Indiana alleged that the Land Rover had facilitated [had made easier] committing the crimes. Property that facilitates crime is forfeitable both federally and in almost all states including Kansas.

The Indiana trial judge agreed that the Land Rover had facilitated Tyson’s crimes and that it was therefore forfeitable. However, the judge further held that because the value of the Land Rover was greater than the maximum $10,000.00 fine that could have been imposed in the parallel criminal case against Tyson, it would be unconstitutional under the 8th Amendment to forfeit the Land Rover in the civil forfeiture case. The Court of Appeals of Indiana agreed. But, the Indiana Supreme Court did not. The Indiana justices held that the 8th Amendment’s excessive fines clause has never applied to the states, and that the trial judge erred by looking to that clause. Tyson appealed to the U.S. Supreme Court.

The Big Court agreed with Tyson that the excessive fines clause should apply to the states, and reversed the Indiana Supreme Court. “When ratified in 1791, the Bill of Rights applied only to the Federal Government. The Constitutional Amendments adopted in the aftermath of the Civil War, however, fundamentally altered our country’s federal system.” Over the years, the Court has made applicable to the states through the 14th Amendment most of the rights contained in the first ten Amendments known as the Bill of Rights. In short, the right against excessive fines in federal courts is now a right in state courts.

The Big Court sent the case back to Indiana for it to determine if the forfeiture of a $42,000 Land Rover is grossly disproportional to the societal damage caused by the Land Rover when it made the serious crimes easier and more efficient to commit.

That said, the Timbs case will have little practical impact in Kansas civil forfeiture cases because Kansas has already codified into our state law those same excessive fines protections. In 1993, the Big Court had just held in Austin v. United States that the excessive fines clause applied in federal civil forfeitures. Because Kansas was at that same time reforming its civil asset forfeiture laws, our Legislature included in the 1994 state forfeiture reform act an excessive fines protection procedure. See K.S.A. 60-4106(c).

State v. Hubbard; No. 113,888

Tue, 11 Dec 2018 22:53:10 GMT

The Kansas Supreme Court has finally given us some guidance for when officers detect the odor of marijuana coming from a residence. The issue has been muddy for years.

During an arrest warrant investigation, officers contacted Lawrence Hubbard at his apartment. When Hubbard opened the door and stepped outside, officers detected the “strong odor of raw marijuana emanating from the apartment.” Through open window blinds, officers noticed five to seven people in the apartment. When Hubbard again opened the door to re-enter the apartment, the odor was again present. Hubbard closed the open window blinds. Officers decided to seek a search warrant and ordered everyone in the apartment to leave. No one was searched as they left, but officers noted that they did not smell marijuana on anyone as they departed.

Officers then secured the apartment awaiting a search warrant. As a part of that security effort, a physical sweep of the apartment was done to make sure that no one else was present, and the sweep was confined to only those places where a person could hide. During the sweep, officers saw drug paraphernalia in plain view. A search warrant was obtained and during its execution, officers found a small amount of marijuana and seized the earlier-noticed paraphernalia. Hubbard was charged with misdemeanor possession. He asked the trial judge to suppress the evidence arguing: 1) the odor of marijuana coming from a private residence, standing alone, does not amount to probable cause; 2) the protective sweep was unnecessary and therefore illegal; and, 3) when officers testify about recognizing the odor of marijuana, they should have to qualify as experts and not just testify based upon their training and experience. After a hearing, the trial judge said no. The Kansas Court of Appeals later said no. Last week, a divided Supreme Court (4-3) also said no.

MJ Odor and Probable Cause: “Probable cause can be established if the totality of the circumstances indicates there is a fair probability that the place to be searched contains contraband or evidence of a crime.” In odor cases, those circumstances include, but are not limited to: 1) proximity to the odor’s source; 2) reported strength of the odor; 3) experience identifying the odor; 4) elimination of other possible sources of the odor; and, 5) the number of witnesses testifying to the odor’s presence.

But, importantly, the Court warned us, “[t]his is ultimately a case-by-case determination based on the circumstances. Not all cases relying on odor will have the same result.” So, remember that houses are just different and probable cause for a house warrant will assuredly receive a more critical review.

Protective Sweep/Exigent Circumstances: A “protective sweep” of a house or other building is a Fourth Amendment search, and it requires consent, a search warrant, or a recognized exception to the warrant rule. There are two kinds of protective sweep exceptions, and both are based in part upon “exigent circumstances.”

The first is for officer safety: a protective sweep is proper during an arrest when it is reasonable to believe that there may be other persons present who could be an immediate danger to the officers.

The second is when officers reasonably believe that before a search warrant can be obtained evidence will be destroyed or concealed. Hubbard’s situation involved this second type of sweep.

Courts analyze the existence of exigent circumstances by looking at the following factors: 1) the time needed to secure a search warrant; 2) the reasonableness of the officers’ belief the evidence may be immediately lost; 3) potential danger to the officers guarding the site while awaiting a search warrant; 4) whether those persons with possession of the evidence are aware of the officers’ presence; and, 5) the ease with which the evidence might be destroyed or hidden.

Here, the Court agreed that because there was probable cause to believe marijuana was in the apartment and because marijuana is easily disposed of, officers properly swept the apartment for other unknown persons who could have destroyed or hidden the evidence. Also, because the officers were performing a proper sweep, their legal presence in the apartment allowed them to legally see in plain view the drug paraphernalia, and to later note that in the search warrant affidavit.

Officer Testimony About Odor: This was really the main disagreement between the justices. The question was: when an officer testifies that based upon his or her training and experience the odor the officer detected was marijuana: is that statement a fact or an opinion? And, if its an opinion, is it a lay opinion or an expert opinion?

Generally, a lay witness’s opinion should not be based upon scientific, technical or other specialized knowledge. Here, the Court’s majority held that “in this instance we are confident it is within the realm of common human experience to smell something and subsequently be able to recognize that same odor again, e.g. alcohol, gasoline, freshly baked bread, recently cut grass, and so on.”

So, the Court found that an officer’s odor-identification testimony is an opinion but it is a lay opinion. And, for these purposes, that is sufficient.

Colin

State v. Aaron Lees; No. 119,052

Wed, 21 Nov 2018 21:19:31 GMT

You may recall the 2008 case of Martin v. KDOR that involved the “third” or “top-middle” brake light found on newer cars. The third light is usually mounted either inside or outside of the vehicle’s rear window. In Martin, the Kansas Supreme Court recognized the new “third” lights as acceptable brake lights, and went on to hold that the Kansas brake light statute, K.S.A. 8-1708, requires that only two of those three brake lights have to function. Unfortunately, not everyone got the word.

In 2017, Aaron Lees was leaving a casino when an officer noticed that the left-side brake light on Aaron’s car was out. The right-side brake light and the “top-middle” brake lights were functioning. Apparently unaware of Martin, the officer stopped Lees for a violation K.S.A. 8-1708(a). During the stop, Lees was arrested for DUI. Predictably, Lees asked the trial court to suppress the car stop (and thus the resulting DUI investigation) arguing that the officer did not have reasonable suspicion of a traffic violation for the initial stop, citing Martin.

In the suppression hearing, the State did not contest that the officer had made a mistake of law, but instead argued that the mistake was a reasonable one. And, the U.S. Supreme Court has previously decided that reasonable mistakes of law do not invalidate reasonable suspicion. The trial judge did not buy it and suppressed the car stop. The State appealed. Last week, a panel of the Kansas Court of Appeals agreed with the trial judge. The panel held that Martin is still good law and the officer’s mistake of law was not objectively reasonable because law enforcement has been on notice since 2008 that the “top-middle” light is a brake light. “[The officer] made the same mistake of law that the officer in Martin made over 10 years ago in Martin. [The officer] is a law enforcement officer, not an average citizen, and he is expected to understand the laws that he is duty bound to enforce.”

A second issue in the case was K.S.A. 8-1759a, the special vehicle inspection authority of KHP that says: “(a) Uniformed members of the highway patrol, at any time upon reasonable cause to believe that a vehicle is [1] unsafe or [2] not equipped as required by law, or that [3] its equipment is not in proper adjustment or repair, may require the driver of such vehicle to stop and submit such vehicle to an inspection and such test with reference thereto as may be appropriate.”

After lengthy discussion, the panel judicially narrowed the statute’s authority by adding the word “required” to number [3]. In other words: Troopers may stop a vehicle under [3] only when “its required equipment is not in proper adjustment or repair.” An example would be a driver that has mounted a large antenna on his car to receive messages from his Mother Ship in deep space. Everyone that sports a tin foil hat knows that such antennas are to be adjusted to the Flint Hills electromagnetic fields-50 Ohms of the Standing Wave Ratio. So, under the panel’s new ruling, a Trooper seeing such an antenna obviously out of tune, no longer has authority under K.S.A. 8-1759a to stop the car because having an antenna to communicate with space aliens, properly aligned or not, is not statutorily required to operate a vehicle in Kansas.

Colin

State v. Schooler; No. 116,636

Thu, 08 Nov 2018 13:41:10 GMT

In follow up on an issue in State v. Schooler (No. 116,636, lightly discussed in a June 27, 2018 summary): for those who have attended my Legal Issues in Car Stops class they will recall that the class ends with review of four possible resolutions to many investigative stops.

In Scenario No. 1, the officer is not suspicious beyond the initial traffic offense and simply releases the car after the enforcement action, if any.

In Scenario No. 2, the officer has become suspicious of other criminal activity but his/her “gut hunch” does not rise to reasonable suspicion to allow for further detention. The officer can choose to release the car or attempt to transform the temporary detention into a consensual encounter, allowing for more questions. If the driver consents to stay and respond to questions, then the officer could ask for consent to search.

In Scenario No. 3, the officer has developed reasonable suspicion of additional criminal activity beyond the original traffic offense, and thus has authority to continue the detention to ask more questions and/or wait for a dog. And, the officer does so.

In Scenario No. 4, the officer has developed reasonable suspicion of additional criminal activity beyond the original traffic offense, and thus has authority to continue the detention to ask more questions and/or wait for a dog. But, the officer chooses to stay quiet about the reasonable suspicion, and instead attempts to transform the temporary detention into a consensual encounter. Should the driver consent to stay and respond to questions (a consensual encounter ensues), then the officer could request consent to search the car. However, should the driver decline consent to stay or answer questions, then and only then would the officer tell the driver that the officer possesses reasonable suspicion of additional criminal activity and continue the investigative detention.

In Schooler, three of the justices voiced doubts about the procedure in Scenario No. 4. Those justices believe that telling a driver that they are free to leave when they are not is a lie. Whether such a lie actually taints the driver’s later consent to stay or consent to search is a question for a future case. But, Justice Rosen noted in his Schooler concurrence that “ . . . I would caution our law enforcement officers against using the promise of freedom in any attempt to circumvent the protections afforded by our Constitution.” In response to the doubts of the Court the State might argue: if at the time of consent the driver was unaware of the officer’s intention to continue the detention (in other words the driver is unaware of the “lie”), then the driver’s consent could not have been tainted by a fact unknown to the driver. But, that is an untested argument and with the loud rumblings in the Court it may be best not to have to cross that bridge.

With that history in mind, I have had conversations with a number of interdiction officers, deputies, and Troopers concerning the continued need for the procedure described in Scenario No. 4. Scenario No. 4 has apparently come about in an effort to deal with the Kansas Supreme Court’s legacy Terry v. Ohio rule prohibiting requesting consent to search during the temporary detention at a typical car stop. Because the Court is concerned about “fishing expeditions,” the Court has repeatedly held that during detention and in the absence of reasonable suspicion of other criminal activity, Kansas officers may not request consent to search a car. (See State v. Smith, 286 Kan. 402, 429 (2008); State v. Cleverly, 305 Kan. 598, 614 (2016)). Note here that when an officer has reasonable suspicion of other criminal activity then the officer may ask questions concerning such other criminal activity. And, those other questions could include requesting to search the car for evidence of that other criminal activity. Why? Because it is no longer a “fishing expedition.”

So, for those that still use Scenario No. 4, it may be a best practice to discard Scenario No. 4 and its potential pitfalls. Simply add to Scenario No. 3 (officer has reasonable suspicion of additional criminal activity) a question during the continued detention: may I search the car?

State v. Schooler, No. 116,636; State v. Jimenez, No. 116,250; State v. Lowery, No. 116,637

Thu, 28 Jun 2018 13:40:11 GMT

We have been expecting from the Kansas Supreme Court three cases on traffic stop law. All three came down last Friday and all three leaned heavily upon Rodriguez v. United States, a watershed 2015 U.S. Supreme Court traffic/dog sniff case (135 S.Ct. 1609). To say the least, these latest Kansas decisions have narrowed an officer’s ability at a routine traffic stop to inquire into matters not directly connected to the traffic infraction. If you stop cars as part of your duties, you will want to read and think about these cases because they are guaranteed to be the topic of discussion in your future suppression hearings.

I always try to keep these summaries as short as possible and because the cases are discussed jointly by the Court, I am going to dispense with the facts and pass along only the highlights.

The highlights of the cases are:

The Court holds in Schooler that the officer had reasonable suspicion to detain the car for a drug dog, but 3 justices find potential future fault as discussed in #6 below. Jimenez holds the officer’s detailed questions into travel plans, which therefore delayed processing the driver’s license and outstanding warrant inquiries, measurably extended the stop. Lowery holds that the officer did not have reasonable suspicion to further detain the car (video did not support “extreme nervousness;” minor discrepancies in travel plans do not support reasonable suspicion; a third-party vehicle, when vehicle ownership, insurance, and registration are not in question, adds little; the destination of Colorado, when the driver’s license showed Colorado as the driver’s current address, is of no value; a vehicle’s tag showing multiple trips past a license plate reader, when there is no testimony as to the times and dates of the readings, was no evidence that the car had traveled on to Colorado; when investigating why a driver would fly one-way yet chose to drive back, the checking of online airline ticket prices for the day of the stop does not provide any legitimate information about the price of the tickets purchased on the earlier day.
The following are the ordinary inquiries within the “mission” of all traffic stops: 1) checking the driver’s license; 2) inspecting the automobile’s registration and proof of insurance; 3) determining whether there are outstanding warrants against the driver; and, 4) the “negligibly burdensome precautions” for officer safety. Remember in a case a few weeks ago (State v. One 2008 Toyota) that criminal history (Triple I) is not an ordinary inquiry of every car stop. Officers should have an officer safety reason to inquire, or inquire while multitasking as explained below.
Officers are to “diligently pursue the traffic investigation;” and, without consent or reasonable suspicion of a second crime, “on-scene investigation into other crimes . . . detours from the [that] mission [and becomes unlawful].”
Travel plan questioning “is not always within a traffic stop’s scope.” Travel plans are best inquired about while other duties of the stop’s “mission” are occurring.
Questioning “within the scope of the stop” are questions with a close connection to the initial infraction under investigation or to roadway safety, i.e. ensuring vehicles on the road are operated safely and responsibly. Without consent or reasonable suspicion of separate criminal activity, inquiries about subjects “outside the scope of the stop” must be done only at the same time as the officer is completing the tasks appropriate for the processing of the initial infraction. As the Court explained, that would be known as “overlapping” efforts or “multitasking.” Otherwise, the “outside the scope” questioning unlawfully extends the duration of the stop.
Courts are to review traffic stops on a case-by-case basis; a particular stop’s reasonableness of time depends upon what the particular officer did or did not do during the particular stop; how long other similar types of past traffic stops have taken is irrelevant. And, courts are to “guard” against “mission creep” referring to officers conflating the inquiries that are approved with inquiries that are either unwarranted or unauthorized.
Concerning those officers having developed reasonable suspicion of a second crime (and thus having the authority to continue to detain and question the driver) but who choose to hold in reserve such detention authority and simply tell the driver that he or she is free to go (in an effort to transform the detention into a consensual encounter allowing the officer to request consent to search the car): Justice Rosen (joined by Justices Johnson and Beier) noted at the end of Schooler that, “the issue of whether any consent or confession was voluntary is a question for another day . . . However, there should be no doubt that constitutional concerns arise when a detained traveler on the roadway is purposely misinformed that the basis for the detention is no longer in place and as a result the traveler is free to leave. . . I would caution law enforcement officers against using the promise of freedom in any attempt to circumvent the protections afforded by our Constitution.”

The bottom line issues in traffic stops continue to be scope of the inquires, and the duration of the stop. For criminal interdiction purposes, the best practice will be multitasking: the ability to do two things at once will help prevent a car stop from being unlawfully extended. Barring a driver’s consent or the development of reasonable suspicion of a second crime, officers should inquire about things outside the scope of the original reason for the stop only while performing the “mission” of a car stop: which is usually the enforcement of the traffic infraction.

Although not a question before the Court here, I predict that the next big issue will be the intersection of the car stop’s “mission” and the speaking with passengers. To be safe, multitasking will be the word of the day there, too.

Full text of each opinion:

Kansas Peace Officers Association Point of Law

Case v. Montana No. 24-624

Chatrie v. United States

United States v. Nahkai and United States v. Tyler

United States v. Watkins, United States v. McGregor, and United States v. Huerta

State v. Dane Michael Knoblauch No. 126,896

State v. Cory Helmstead No. 127,667

State v. James Lee (No. 127,436)

State v. Brian Beck No. 126,350 - ADDENDUM TO EARLIER 07/07/2025 SUMMARY

State v. Brian Beck No. 126,350

United States v. Maytubby, 130 F.4th 1194 (10th Circuit 2025)

Barnes v. Felix, No. 23-1239 (605 U.S. ____ (2025))

State v. Nicholas George No. 126,414

Ronnie Hickles v. KDOR No. 126,958

HOW TO WIN AND LOSE AT THE SAME TIME - United States v. Dennys Rodriguez

Amir v. Kansas Department of Revenue (No. 126,162)

Summary of the 2024 Changes in Kansas Asset Forfeiture Law

The Emergency Aid Doctrine: State v. Jessica Dixon

State v. Kerrigan No. 123,862

Abused Dogs, An Anonymous Tipster, and the Open Fields Doctrine

U.S. v. Batara-Molina No. 21-8079

ROJAS V. CITY OF OCALA

State v. Jeremiah Orange #124,785

Garner v. KDOR

State v. Kerrigan No. 123,862

Courts Begin Struggle with Pole Cameras

State v. Bates, No. 122,128

Irizarry v. Yehia 10th Circuit COA, No. 21-1247

A Short History: Police Use of Force

A Short History: Police Use of Force

State v. Harbacek, No. 124,513

U.S. Supreme Court Update

A Note About Brady/Giglio Responsibilities

Supreme Court Roundup

Taylor v. RiojasNo. 19-1261

Lombardo v. St. LouisNo. 20-391

Caniglia v. Strom No. 20-157

Cooley v. United States No. 19-1414

Lange v. California

PERMISSION TO PURSUE? [MONTGOMERY V. SALEH, 361 KAN. 649, 466 P.3D 902, (KAN. 2020).]

State v. Cash & State v. Arrizabalaga

State v. Cash

Kansas Supreme Court, No. 121,467

State v. Arrizabalaga

Kansas Supreme Court, No. 120,209

Thanks Again, Director

United States Supreme Court Update

Torres v. Madrid

Stormont-Vail v. Board of County Commissioners II

Kansas Court of Appeals No. 120,345; December 11, 2020

U.S. Supreme Court Update

Consent Searches at Kansas Car Stops (Second of Two Articles)

United States Supreme Court Update

Short KSA Article on Consent

State v. Christopher Harris, No. 116,515

Montgomery v. Saleh; #117,518/117,519

Kansas v. Glover; No. 18-556

State v. Shelbie Ellis; No. 120,046

Searches of Containers During Arrests

State v. Sergio Arrizabalaga; No. 120,209

State v. Devon Gill; No. 119986

State v. Palacio; No. 116,899

Update on Use/Reporting of Forfeiture Proceeds/Cases

Timbs v. Indiana; 17-1091

State v. Hubbard; No. 113,888

State v. Aaron Lees; No. 119,052

State v. Schooler; No. 116,636

State v. Schooler, No. 116,636; State v. Jimenez, No. 116,250; State v. Lowery, No. 116,637

Taylor v. Riojas
No. 19-1261

Lombardo v. St. Louis
No. 20-391

Caniglia v. Strom
No. 20-157

Cooley v. United States
No. 19-1414