January 2010 Legal Bulletin

Civil & Criminal Liability

NINTH CIRCUIT RULES APPLICATION OF TASER ON A TRAFFIC STOP VIOLATED THE FOURTH AMENDMENT

Bryan v. McPherson, ___ F.3d ___ (9th Cir. No. 08-55622, filed 12/29/09).  In a 42 U.S.C. section 1983 action based on defendant-officer's use of a taser on plaintiff at a traffic stop, denial of summary judgment based on qualified immunity is affirmed where, viewing the circumstances in the light most favorable to plaintiff, defendant's use of the taser was unconstitutionally excessive and a violation of plaintiff's clearly established rights.

ALLEGING THAT OFFICERS WERE RECKLESS INSUFFICIENT TO STATE A CLAIM IN A PURSUIT CASE

Ellis v. Ogden City, __F.3d __, (10th Cir. No. 08-4166, filed 12/17/09).  A city police struck and killed an innocent bystander while pursuing a known gang member at high speeds through residential areas.  Plaintiff alleged that the officers had been ordered to stop the chase due to the public safety concerns of supervisors, but the officers continued it on their own initiative.  The lower court dismissed the complaint because it did not include an express allegation that the officers subjectively intended to cause harm to the deceased bystander.  The appellate court agreed and affirmed the dismissal. The court reasoned that prior Supreme Court precedent required a federal civil rights plaintiff to establish that pursuing officers "acted with an intent to either physically harm the suspect or worsen his legal plight."  The appellate panel concluded that an intent to injure an innocent bystander was also a requirement where the plaintiff was not the subject of the pursuit.  The court rejected plaintiff's reliance on earlier precedent - no longer good law - that would impose liability where pursuing officers "disregard a known danger."  The appellate court concluded that "the plaintiff must establish not that the officers acted with reckless indifference but that the officers intended to cause harm."  General allegations of obvious and avoidable risk will not suffice to meet this test.

DISPATCHER PROTECTED BY PUBLIC DUTY DOCTRINE

Lovitt v. Board of Shawnee County Commissioners, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,159, filed 12/18/09).  Plaintiff claimed intangible damages due to the refusal of a dispatcher to send help in response to a 911 emergency call.  Plaintiff was a passenger in a motor vehicle operated by his mother, who suffered a seizure and lost control, resulting in a non-injury accident.  When the minor plaintiff reported the accident, the dispatcher mistakenly concluded that it was a prank call and refused to send aid.  Within less than a minute an adult passerby made a separate call to report the accident, and emergency responders were dispatched in response to this second call.  Emotional distress damages were sought under the theory that the refusal to send help met the requirements for the tort of outrage or negligent infliction of emotional distress under Kansas law.  The lower court granted summary judgment for the defendant, reasoning that the public duty doctrine and statutory immunity protected the dispatcher and her employer.  The appellate court affirmed, holding that any duty to respond to 911 emergency calls is a duty owed to the general public, not an actionable tort duty owed to individuals, at least in cases where there is no proof of detrimental reliance on a promise to dispatch help.  In addition, the discretion inherent in the dispatcher's decision to identify the call as a suspected prank was enough to trigger statutory tort immunity.  The opinion also reaffirmed the unavailability of a cause of action for purely emotional injuries based on a negligence theory under Kansas common law.  The facts did not establish the severe emotional distress required for a recovery of damages under the tort of outrage.

OFFICER ENTITLED TO QUALIFIED IMMUNITY ON FALSE ARREST CLAIM BASED ON CHILD ABUSE CASE

Herrera v. City of Albuquerque, ___ F.3d ___ (10th Cir. No. 09-2010, filed 12/14/09).  Plaintiff sued a police officer for a § 1983 violation alleging she was arrested without probable cause to believe child abuse by endangerment occurred.  The officer responded to a domestic disturbance of which plaintiff was a victim.  Plaintiff was 16 years old and had a three-year old son.  Plaintiff had been drinking when the officer responded.  The house was filthy and had razors, food, cigarette butts and clothes on the floor.  The bathtub was full of black water and emitting a foul odor.  There was also a vicious Pit Bull chained in the backyard that had access to the kitchen.  The Circuit held the New Mexico law at issue was not clearly established as to what constituted abuse by endangerment at the time of the arrest in 2005, and did not become so until 2009.  Accordingly, it affirmed summary judgment on qualified immunity grounds for the officer.

Driver's License Suspension

DC-27 FORM CAN BE MAILED BY AN ASSISTANT

Byrd v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,189, filed 01/15/10).  Byrd provided a blood sample that tested at 0.28.  Upon receipt of the results, Atchison County Deputy Clark executed the DC-27 form and gave it to an administrative assistant, Hale, who mailed it to Byrd.  Byrd argued to the district court that Clark had to mail the notice himself to comply with K.S.A. 8-1002(c).  The district court agreed.  The Court of Appeals reversed, finding substantial compliance with the service statue based on the 1993 amendment to K.S.A. 8-1001(v) ("this act is remedial law and shall be liberally construed to promote public health, safety and welfare.")  The Court of Appeals held the 1993 legislative amendment meant that Anderson v. Kansas Dept. of Revenue, 18 Kan.App.2d 347, 355, 853 P.3d 69, rev. denied 253 Kan. 856 (1993)(strict compliance with personal service statute K.S.A. 8-1002(c) required), was no longer good law.

MISTAKE ABOUT LENGTH OF SUSPENSION WHEN GIVING AN OPTIONAL IMPLIED CONSENT ADVISORY WAS HARMLESS ERROR

Cuthbertson v. Kansas Department of Revenue, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,494, filed 12/04/09).  An officer arrested Cuthbertson for DUI.  Cuthbertson had a CDL, but was not driving a commercial vehicle at the time of his arrest.  The officer gave him the standard implied consent advisories.  Prior to taking and failing the test, Cuthbertson asked what effect a test failure would have on his CDL.  The officer misrepresented that Cuthbertson CDL would be suspended for a year, but in actuality it was a second failure or refusal so it led to a lifetime suspension of Cuthbertson's CDL.  Cuthbertson claimed that the incorrect statement about his CDL should result in reinstatement.  The Court held that while the advice given by the officer was incorrect, a CDL advisory pursuant to K.S.A. 8-2,145(a) was not required and Cuthbertson could show no prejudice from the mistake since he had already decided to take the test, and even if he hadn't, the result would have been the same.

Entrapment

OPPD DETECTIVE'S ACTS DID NOT CONSTITUTE ENTRAPMENT OR OUTRAGEOUS GOVERNMENT CONDUCT

State v. Bratton, ___ Kan.App.2d ___, ___ P.3d ____ (No. ____, filed 12/04/09 unpublished), 2009 WL 4639504.  The Court of Appeals rejected the defendant's outrageous government conduct and entrapment defenses in an internet sting performed by Overland Park detectives.  Donald Bratton began corresponding over the internet on a "sex" website with an under-cover Overland Park police detective who was posing as a woman interested in hooking up with men on the internet.  The detective had a membership on the sex site that only allowed her to respond to contact with other website members, not initiate it.  Bratton made contact with the detective about 20 times over the course of a three month period.  They exchanged emails, some but not all of which were sexually suggestive.  After they arranged a date to meet in person, the detective told Bratton, "I don’t remember if I told you or not, but my donation amount is 150 Washingtons for an hour of non-stop entertainment and fun."  This was the first discussion of money in exchange for sex.  Within 2 hours of the email, Bratton responded that he felt the donation sounded reasonable and he couldn't wait for them to meet.  They arranged the date, time and place of their rendezvous and continued to discuss it over several more emails.  When Bratton knocked on the hotel room door, the detective answered it, still posing as the "Belinda" that Bratton had been corresponding with on the internet.  She asked if he had the money with him.  He put it out on the table , they discussed condoms, and he was arrested.  Bratton was charged and convicted of attempting to patronize a prostitute.

            Bratton first argued the "outrageous government conduct defense," which has been recognized in Kansas although it has never prevailed in a case.  It states that “governmental participation in a criminal enterprise reaches an intolerable degree when it constitutes a denial of fundamental fairness, shocking to the universal sense of justice, in violation of the due process clause of the 5th Amendment to the U.S. Constitution." The factors used to identify outrageous government conduct are:

1.      the type of activity under investigation;

2.      whether the government instigates the criminal activity in question or whether it infiltrates a preexisting criminal enterprise;

3.      whether the government directs or controls the activities or merely acquiesces in their criminality; and

4.      the causal relationship between the challenged government conduct and the commission of the acts for which the defendant stands convicted.

            The outrageous government conduct defense is an offshoot of the entrapment defense and intent and predisposition to commit the crime plays a role in the analysis.  These are factual determinations for the fact finder.  The Court of Appeals agreed that the predisposition analysis needed to focus on Bratton’s intent and expectations at the time he began corresponding with "Belinda."  It opined that to measure predisposition later, after a government had engaged in outrageous conduct, could reward the government for any outrageous conduct that succeeded in creating a predisposition to commit a crime.

            The defendant argued that the mere fact that he was on a sex website and had contact with "Belinda" could not lead a rational factfinder to conclude he had a predisposition to patronize prostitutes on the site.  However, the Court of Appeals found his use of the site to meet women to have sex with was material in the analysis.  The very first cursory mention of prostitution by "Belinda" resulted in his prompt agreement to the terms.  After money was discussed, he continued to push for a specific date and time.  There was no hesitancy or reluctance or undue persuasion.  Therefore, it held there was sufficient evidence for the trier of fact, the district court judge, to conclude that Bratton was predisposed to such behavior.

            Bratton also argued "entrapment."  The entrapment defense is codified in Kansas at K.S.A. 21-3210 and states that, "A person is not guilty of a crime if his criminal conduct was induced or solicited by a public officer...for the purpose of obtaining evidence to prosecute such person, unless the public officer... merely afforded an opportunity or facility for committing the crime in furtherance of a criminal purpose originated by such person or co-conspirator." Once inducement by the government has been proven, the defendant’s previous intent or predisposition to commit the crime must be shown to rebut the entrapment defense.  The Court of Appeals found that based on the facts of the case, a rational fact finder could find that Bratton was pre-disposed to hiring prostitutes for sex.  The OPPD merely afforded the opportunity.

 

Search & Seizure

COLUMBO PIVOT WORKS, EVEN IF YOU ARE STILL IN THE DRIVER'S SEAT OF YOUR PATROL VEHICLE

United States v. Villa, ___ F.3d ___ (10th Cir. No. 08-8100, filed 12/29/09).  The district court properly denied the defendant's motion to suppress evidence based on unreasonable continued detention.  A Wyoming trooper stopped Villa's car East of Cheyenne for speeding.  He approached on the passenger side and spoke to Ms. Davis.  Villa and Davis said they were headed to Minnesota to visit family.  (Villa later said Davis's family).  The trooper described Villa as nervous, and Davis as "overly friendly."  Villa had a California DL, but the registration and insurance documents had two different Nevada addresses and were only two weeks old.  The trooper returned to his car and ran the information.  All came back clear.  The trooper then requested Villa to join him in the patrol car and asked her more questions.  While filling out a warning ticket, Villa said her boyfriend lived in Nevada and that is why the car was registered there.  Villa could not say which city in Minnesota they were headed to.  The trooper served her the warning and returned her documents, telling her she was free to go.  As she was getting out of the patrol car, the trooper asked permission to ask a few more questions.  Villa agreed, and stayed in the car.  In response to a Villa statement, the trooper remarked that it was a long trip for a two-day visit.  Villa then said she may fly back.  The trooper told her to remain in the car while he asked Davis some questions.  Instead, Villa followed the trooper out of the car.  Villa refused consent to search the car.  The trooper requested a canine that arrived 11 minutes later and alerted on the car.  The trooper found two packages of methamphetamine under a panel.  Villa also possessed a gun that the trooper discovered in his back seat two months later.  Villa was convicted and sentenced to a 15-year controlling sentence.  Villa argued that she should have been released as soon as she and her documents came back clear.  The Circuit disagreed, finding detention was justified until the trooper served the warning and returned Villa's documents, and the encounter was consensual until detention started.  Further, detention was supported by reasonable suspicion based on Villa's and Davis's jacked up story.

OHIO SUPREME COURT REQUIRES EXIGENT CIRCUMSTANCES OR A WARRANT TO SEARCH A CELL PHONE

Ohio v. Antwaun Smith, ___ Ohio ___ (filed 12/15/09, a 5-4 decision).  Police officers must obtain a search warrant before searching the contents of a suspect's cell phone unless their safety is in danger.  Smith was arrested on drug charges after he answered a cell phone call from a crack cocaine user acting as a police informant.  Officers took Smith's cell phone when he was arrested and, acting without a warrant and without his consent, searched it.  They found a call history and stored numbers that showed Smith had previously been in contact with the drug user.  Smith argued that the evidence obtained through the cell phone search was inadmissible because it violated the constitutional ban on unreasonable search and seizure.  The Court agreed, the majority concluding that a cell phone was akin to a closed container.  A dissenting justice said the majority "needlessly theorized" about what a cell phone is capable of doing and the data it can store.  [NOTE:  This case does not control in Kansas, but Kansas Courts have not taken a clear position on this issue.]

STRICT LIABLITY ORDINANCE SUPPORTS A STOP FOR CROSSING CENTER LINE OF HIGHWAY

State v. Chavez-Zbarra, ___ Kan.App.2d ___, ___ P.3d ____ (No. 102,285, filed 12/11/09).  A Barton County deputy stopped a vehicle when it crossed the center line on a two-lane highway.  The driver turned out to be DUI.  The district court held the stop was illegal based on State v. Ross, 37 Kan. App. 2d 126, 149 P.3d 876, rev. denied 284 Kan. 950 (2007), and suppressed all the evidence.  The Court of Appeals reversed, holding that K.S.A. 8-1514 requires driving on the right half of the roadway, that it is a strict liability offense unlike K.S.A. 8-1522, and was a valid reason to stop the vehicle.

IF IT LOOKS LIKE AN EMERGENCY, IT PROBABLY IS

Michigan v. Fisher, 556 U.S. ___, ___ S.Ct. ___, ___ L.Ed.3d ___ (No. 09-91, per curium, 12/07/09), 2009 USLEXIS 8773 (2009).  In a somewhat unusual procedure, the Supreme Court summarily granted certiorari, reversed a judgment and remanded a case, all without briefing and argument.  Michigan officers responded to a disturbance complaint.  A citizen approached and advised police a man was "going crazy."  At the house they were directed to, officers saw a pickup truck in the driveway with its front smashed, damaged fence posts along the side of the property, and three broken house windows, the glass still on the ground outside.  The officers also noticed blood on the hood of the pickup and on clothes inside of it, as well as on one of the doors to the house.  Through a window, the officers could see Mr. Fisher screaming and throwing things.  The back door was locked, and a couch had been placed to block the front door.  Fisher refused to answer knocks at the door.  Officers saw Fisher was cut and bleeding.  They asked him whether he needed medical attention.  Fisher ignored these questions and demanded, with accompanying profanity, that the officers go to get a search warrant.  Officers entered the residence, and Fisher greeted them with a long gun.  The district court suppressed the evidence against Fisher, who was charged with assault with a dangerous weapon and possession of a firearm during the commission of a felony.  Reversing, the Supreme Court stated:

"It was error for the Michigan Court of Appeals to replace that objective inquiry into appearances with its hindsight determination that there was in fact no emergency.  It does not meet the needs of law enforcement or the demands of public safety to require officers to walk away from a situation like the one they encountered here.  Only when an apparent threat has become an actual harm can officers rule out innocuous explanations for ominous circumstances.  But "[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties."  Brigham City, [v. Stewart, 547 U. S. 398, 126 S.Ct. 1943 (2006)] supra, at 406.  It sufficed to invoke the emergency aid exception that it was reasonable to believe that Fisher had hurt himself (albeit nonfatally) and needed treatment that in his rage he was unable to provide, or that Fisher was about to hurt, or had already hurt, someone else. The Michigan Court of Appeals required more than what the Fourth Amendment demands.

Justice Stevens and Sotomayor dissented, saying the Supreme Court should not second-guess the state court judges.

LIMITED PURPOSE STOPS HAVE LIMITED SCOPE AND DURATION – DO NOT TREAT THEM LIKE NORMAL TRAFFIC STOPS

United States v. Pena-Montes, ___ F.3d ___ (10th Cir. No. 08-2169, filed 12/07/09).  An Albuquerque police officer saw a GMC Yukon traveling without an apparent tag and stopped the vehicle.  As the officer approached, he saw a dealer plate displayed in the rear window.  The officer engaged the driver and asked for his license, registration and proof of insurance.  The driver produced a license, but did not have registration, a bill of sale or proof of insurance.  The officer thought the vehicle might be stolen.  After being advised the driver had a handgun in the vehicle, the officer removed the driver and passenger while he checked with dispatch about the registration.  The officer patted down driver and passenger after learning the vehicle had not been reported stolen.  The passenger had no ID and the name he used did not show up in the Arizona DL database.  The passenger then gave a different birth date and SSN than he had previously.  Eventually, the officer discovered the passenger was an alien and a convicted felon.  The passenger filed a motion to suppress alleging he had been illegally detained.  The Circuit agreed.  It found the stop justified at its inception based on the officer's mistake of fact, but disagreed with the government's assertion that further detention was warranted to investigate possible misuse of the dealer plate.  The law did not restrict the use of this type of plate, and the officer's mistaken conclusion that such plates are only generally used during banker's hours when dealerships are open did not warrant further detention and violated the applicable scope of the stop.

INSUFFICIENT EVIDENCE FOR A SAFETY STOP, BUT WEAVING WITHIN AND OUTSIDE LANE DIVIDERS WAS RESONABLE SUSPICION FOR A STOP

State v. Knight, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100167, filed 11/06/09).  A trooper saw Knight's car on I-35 at around 11:24 p.m. cross the solid line on the left side and weave within its own lane.  The trooper believed that the driver might be under the influence of drugs and/or alcohol and stopped the car.  The Court of Appeals agreed the state failed to present adequate proof of a public safety stop, but held that observation of Knight's car weaving in and out of lanes without signaling and his car's weaving within its proper lane of travel, standing alone, created sufficient reasonable suspicion for the stop.

MOVING AUTOMBILES PROVIDE THEIR OWN EXIGENT CIRCUMSTANCES IF PROBABLE CAUSE IS PRESENT

State v. Sanchez-Loredo, ___ Kan.App.2d ___, ___ P.3d ____ (No. 101,912, filed 11/25/09).  Huchinson police had investigated the suspect for methamphetamine distribution approximately two months before stopping her car, and had informant information that she frequently drove to Dodge City to buy meth.  Officers followed her there, saw the vehicle park behind an auto detailing shop, and saw defendant go in and remain for about 10 minutes.  The vehicle drove in a manner that one of the officers thought indicated the driver was attempting to locate any tails.  While driving back to Hutchinson, the officers relayed information regarding a possible search warrant to an ADA.  After the car entered Reno County, the officers stopped it.  A drug-sniffing canine did not alert on the car, but officers obtained a warrant and searched the car, finding a pound of meth in the glove box, and paraphernalia.  The district court suppressed the evidence, finding no exigent circumstances.  The Court of Appeals reversed, again holding that an automobile search provides its own exigent circumstances when there is probable cause to believe contraband is in the vehicle.

ENTRY BASED ON MISTAKEN BELIEF RESIDENCE WAS COVERED BY A WARRANT WAS NOT UNREASONABLE

Harman v. Pollock, ___ F.3d ___ (10th Cir. No. 08-4068, filed 11/18/09)(Harman II).  The district court property granted defendants qualified immunity after remand from Harman I, 446 F.3d 1069 (10th Cir. 2006).  Utah police had a warrant for 44 West 2700 South in Salt Lake, including its detached garage.  The detached garage was actually an apartment at 44 ½ West 2700 South, and plaintiffs Harman and her boyfriend Overton lived there.  After the SERT team entered, they quickly realized they were not in a garage, but saw marijuana in plain view.  Thinking the apartment was a crash pad for the main house, they detained the occupants for about two hours and searched the apartment twice.  After interviews, they realized the apartment and its occupants had no connection to the main house.  The majority concluded that based on the officer's mistaken belief, the entry and plain view search was reasonable and, although the warrant was overbroad, based on their mistaken beliefs the officers did not violate Maryland v. Garrison, 480 U.S. 79 (1987).

COLUMBO PIVOT WORKS, AND YOU DON'T HAVE TO FIRST ASK FOR PERMISSION TO ASK FURTHER QUESTIONS

State v. Murphy, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,178, filed 11/13/09).  In yet another "Columbo Pivot" case, a majority of this Court of Appeals panel demonstrates understanding and application of the totality of the circumstances test on determining whether a police-citizen encounter was consensual or an illegal detention.  An officer stopped defendant for speeding 79 in a 70 in Geary County.  The officer wrote the defendant a warning ticket, returned his document, and told him he was free to go.  The defendant shook the officer's hand, apologized for speeding and began to walk away.  After a Columbo Pivot, the officer said something to the effect of, "By the way, do you have any illegal contraband, drugs, alcohol or weapons in the car?"  The defendant denied having those things, and gave consent to search (after consenting to a pat-down).  The officer found cocaine and paraphernalia in the vehicle.  The defendant claimed his consent was coerced during an illegal detention because the officer did not ask him for permission to ask further questions, and the officer still had his emergency lights on.  Rejecting this argument, the majority concluded that a reasonable person would feel free to leave under the circumstances.  Applying Thompson, the majority concluded the following voluntary factors outweighed the detention factors:  (1) returning documents; (2) telling the defendant he was free to go, (3) physical disengagement; (4) only one officer present; (5) no display of a weapon or physical touching and (6) the encounter occurred in a public place.  Defendant also claimed that admission of the lab report at trial without the chemist's testimony violated Crawford.  The Court rejected this claim as well, finding the state had proffered the lab report on October 5, 2006, but defendant never objected until two days before trial, on April 2, 2007.  Thus defendant waived any objection under the notice and demand statute, K.S.A. 22-3437(3) and State v. Laturner.  Judge Greene dissented, finding a reasonable person would not feel free to leave.  Focusing on the phrase "By the way," he said it indicates an afterthought and suggests a need to reengage the prior conversation to deal with an unfinished issue.  He also questions the direction of jurisprudence, saying it encourages suspects to disrespect law enforcement.  Greene stated that a suspect waives his rights if he does anything short of saying as little as possible, answering no questions until commanded to do so, declining cooperation and turning and walking away, which may seem "quite rude and disrespectful."

THE KANSAS APPELLATE COURTS COME OUT THE RIGHT WAY ON ASKING ABOUT TRAVEL PLANS DURING A STOP – FINALLY!

State v. Morlock, ___ Kan. ___, ___ P.3d ___ (No. 97,447, filed 11/06/09), reversing 40 Kan.App.2d 216, 190 P.3d 1002 (2008).  The Kansas Supreme Court reversed the Court of Appeals on whether consent was voluntary due to illegal detention.  The Court of Appeals held that some questions to a passenger during a traffic stop made it an illegal detention.  In magical language, the Supreme Court stated:

We hold that Deputy Cocking's questions about the van occupants' travel plans did not exceed the acceptable boundaries of the traffic stop.  We further hold that Cocking's taking of Morlock's driver's license to his patrol vehicle and using it to run a warrants check on the vehicle computer was justified by his reasonable suspicion, allowing an extension of the traffic stop.  Accordingly, we do not address whether any taint was attenuated by Morlock's later consent to search.

We reverse the Court of Appeals and affirm the district court.

            The Court of Appeals had ruled a Deputy violated a passenger's Fourth Amendment rights by inquires about travel plans and checking the passenger for warrants, and those questions tainted the later voluntary consent to search that yielded 113 pound of marijuana.  The deputy stopped a van bearing Arizona plates because it twice changed lanes without signaling.  The driver, a 16-year old male, was extremely nervous.  The passenger looked straight ahead during the deputy's encounter with the son and would not make eye contact with the deputy.  The deputy had the driver step out, and asked him Where he was coming from, how long he'd been there and the purpose of the trip.  The driver said they came from Phoenix, had been there a couple of days and went to see his dad's (the passenger's) girlfriend.  The driver also stated his dad rented the van.  The deputy then approached the passenger, asked for a copy of the rental agreement and asked the passenger for ID.  While the passenger was looking for the rental agreement, the deputy asked him the same questions he'd asked the driver.  The passenger stated they were traveling from Phoenix to Kansas City, they had been in Phoenix for 2 days, and they went there to meet a woman he had met on the internet, but they never made contact with her.  The passenger produced both the rental agreement and his ID.  The rental agreement indicated the van was rented in Tucson, not Phoenix.  The deputy asked why they flew to Phoenix but were driving back in a rented van.  The passenger stated they didn't have enough money for a return flight.  The deputy noticed four duffel bags in the cargo area of the van, which he thought was unusually large for a two-day trip.  Neither the driver nor the passenger had warrants.  The deputy returned the documents on the passenger side of the van, issued a warning citation, then said "have a nice day," and took a couple steps away.  The deputy then asked if he could ask some questions.  The passenger consented, and eventually consented to a search.  The Court of Appeals held it was ok to ask where the van's occupants were coming from, but held that questions regarding the length of stay and purpose of the trip were not reasonably related to the purpose of the stop.  While it was ok to ask for the rental agreement and about the Tucson/Phoenix discrepancy, the other questions were designed to probe into the passenger's personal business in the hope of uncovering suspicious activity.  The Court of Appeals also held that the warrant check on the passenger violated State v. Damm, 246 Kan. 220, 787 P.2d 1105 (1990), and the impermissible extension of the scope and duration tainted the passenger's later consent.  Thus, it held that all the evidence must be suppressed.  Judge Leben wrote a well-reasoned dissent indicating that Illinois v. Harris, 543 U.S. 1135 (2005) and Illinois v. Caballes, 543 U.S. 405 both indicate that an officer can ask for a passenger's ID and run them for warrants.  He also pointed out the total time of the traffic stop was only 12 minutes, and would have held the officer's actions were reasonable.  But see State v. Jones.

COURT PROHIBITS FURTHER INQUIRY OF POTENTIAL JURORS ON WHETHER THEY COULD BELIEVE A COP?

State v. Madkins III, ___ Kan.App.2d ___, ___ P.3d ____ (No. 100,593, filed 11/20/09).  Defendant was charged with possessing drugs and sought to voir dire jury panel members on whether they would believe statements just because a police officer said them.  After a general question to the panel with no response, the trial judge restricted further inquiry in this area.  Finding no reversible error, the Court of Appeals affirmed, finding that further inquiry would be cumulative.  The Court adopted the following test:  "To determine whether prohibited voir dire questions regarding prospective juror opinion on police credibility violates a defendant's constitutional right to trial by an impartial jury, the court considers the following three factors: (1) whether police officer credibility is at issue in the case and to what extent, (2) whether the prohibited inquiry is cumulative so as to provide no additional benefit in discovering bias, and (3) whether police officer testimony is corroborated by other, nonpolice witnesses."  ___ Kan.App.2d ___, Syl. ¶ 10.