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.