Point of Law

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

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

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

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.

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).    

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

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). 

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.    

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.