State v. Cash
Kansas Supreme Court, No. 121,467
This case arises from a 2018 traffic stop of a van for a tag violation. During the initial contact, and while the driver was looking for registration and insurance papers, the officer noticed in the back of the van a partially open flat safe. Hanging out of the safe was a plastic baggie and a Crown Royal bag. The officer could not see what was in either bag.
The officer asked Cash if he would open the safe, and Cash agreed. As Cash opened the safe, the officer could see orange hypodermic needle caps inside of the plastic bag. Cash then slammed the safe shut saying, “I think there’s a pipe in there.” That all together led to a probable cause search that found methamphetamine, other narcotics, and paraphernalia in the van.
Cash was charged and requested a suppression hearing. The question at the hearing was whether the officer had developed reasonable suspicion of other criminal activity so as to extend and broaden the traffic stop. At the hearing, the officer testified that she had come across Crown Royal bags in the past, and that she “more often than not” found drug paraphernalia in them. Based upon the officer’s experience, the safe, the plastic baggie, and the Crown Royal bag, the trial court held that the officer had reasonable suspicion to extend the stop so as to then inquire about the safe and to then hear Cash blurt out about the “pipe.” Cash was convicted and appealed.
In 2020, a divided Court of Appeals panel agreed with the district court. But, the lone dissenter, appellate Judge Michael Buser, would have held among other things that the officer had not testified sufficiently about her training and experience to believe that such innocent items as a baggie and Crown Royal bag, by themselves, could amount to reasonable suspicion of criminal activity. Cash lost his appeal, but the Kansas Supreme Court agreed to review the decision.
Justice Melissa Taylor Standridge, only recently moved up to the Supreme Court from the Court of Appeals, wrote the opinion also agreeing with the district court. She started with a recitation of the current law concerning car stop mission limitations and reasonable suspicion: “Yet these limitations do not mean that police must perform their duties with a blind eye. When a detainee’s responses and the surrounding circumstances give rise to an objectively reasonable and articulable suspicion that criminal activity is occurring during a traffic stop, an officer can broaden his or her inquiry to satisfy those suspicions . . .The reasonable suspicion analysis requires use of an objective standard based on the totality of the circumstances, not a subjective standard based on the detaining officer’s personal belief . . . So the relevant question for the district court at a suppression hearing is whether the facts presented to the officer—facts to which the officer must testify with particularity—give rise to an objective basis for suspecting criminal activity when viewed under the totality of the circumstances standard . . . [A]n officer is not required to neatly package the reasonable suspicion factors in a single succinct answer; the court is required to consider ‘the totality of the circumstances, all facts and inferences, [and] not a select few . . . Reasonable suspicion is a lower standard than probable cause. What is reasonable depends on the totality of the circumstances in the view of a trained law enforcement officer. The totality of the circumstances standard allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them.”
The Supreme Court went on to hold that the officer’s experience of having come across Crown Royal bags in the past that had “more often than not” contained drug paraphernalia, together with the safe and plastic baggie, amounted to reasonable suspicion to extend a car stop for further investigation.
This is a welcome re-setting of the reasonable suspicion bar. I have written for years that our state courts have been “all over the map” on what amounts to reasonable suspicion, and they have generally set the bar too high when compared to U.S. Supreme Court precedent. Only last year Kansas was reversed by the Big Court in Kansas v. Glover on a similar “what amounts to reasonable suspicion” traffic stop case.
State v. Arrizabalaga
Kansas Supreme Court, No. 120,209
You may recall this case from the 2019 Kansas Court of Appeals opinion that changed when drug dogs should be called. That appellate panel had split 2-1 on the issue of whether an officer was required to call a dog the moment that the officer developed reasonable suspicion. The State had appealed that ruling and the Kansas Supreme Court has recently agreed with the State.
The facts are long, but suffice it to say: car stop for a traffic violation: reasonable suspicion developed; warning ticket; driver released; re-contacted and consent to search given; withdrawal of consent a few minutes later; officer called for drug dog; the nearest dog arrived 24 minutes later; a sniff, an alert, and a search: 111-one pound bags of marijuana. At the time the dog was called, the event had lasted about 23 minutes.
Interestingly, in the initial criminal case the trial court had held two separate suppression hearings. Following testimony in the first hearing, the trial court had denied suppression. The defense then altered its strategy in a second hearing arguing that the officer “was not diligently and reasonably pursuing the purpose of the stop” while he awaited the drug dog. The defense convinced the trial judge that 24 minutes was too long to wait for a dog, and the drug evidence was then suppressed.
The State appealed. A split appeals panel agreed with the trial judge, holding that the officer “could have attempted to dispel his suspicions or tried to locate a drug-sniffing dog immediately [when first suspicious, not later when consent to search was withdrawn].” Appeals panel Judge Kathryn Gardner dissented having found no fault with the officer’s decision to wait and use other means to dispel his suspicions. Judge Gardner would have held that those other means used by the officer (release and consent to search) were diligent under the circumstances; and, there was nothing further that the officer could have done while then waiting for the dog.
The State then asked for review by the Supreme Court. Senior (retired) District Judge Michael Ward, sitting temporarily with the Supreme Court, wrote the opinion released last week reversing the Court of Appeals majority and the trial court.
Judge Ward first reviewed the law: “A routine traffic stop is likened to a brief stop under Terry v. Ohio as opposed to an arrest. It is a form of investigative detention which must be legally justified from the start by reasonable suspicion of criminal activity. A traffic infraction provides the reasonable suspicion required to initiate a traffic stop. The scope of investigation during the stop is delineated by the circumstances which rendered its initiation proper. Beyond determining whether to issue a traffic ticket, an officer’s mission includes . . . checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. The duration of a routine traffic stop is generally limited to the time reasonably necessary to carry out its mission. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. Normally, after the traffic citation process is concluded, the officer must allow the motorist to depart the scene. That is unless the officer has reasonable and articulable suspicion of additional criminal activity, or consent.”
So, this appeal surrounded only one question: whether the officer had, after developing reasonable suspicion of additional criminal activity, “acted diligently to verify or dispel his suspicions.” In other words, was it OK to go through the steps the officer first took, then call for a dog, and then to just sit and wait 24 minutes for the nearest dog to arrive. Judge Ward, speaking for the Supreme Court, said yes. First, there is no legal time limit for waiting for the arrival of the nearest dog. That said, “if an investigative stop continues indefinitely, at some point it can no longer be justified as an investigative stop.” Second, “[i]n evaluating the reasonableness of a stop, we consider what the police in fact do and whether the officers acted reasonably under the totality of the circumstances. The Court of Appeals should have Focused solely on the 24 minute segment of time between withdrawal of consent and the arrival of the drug dog: “[the officer] detained Arrizabalaga and his passenger for no longer than was necessary to get a drug dog to the scene to quickly confirm or dispel his reasonable suspicions. Under the circumstances existing that night . . . waiting 24 minutes for a fellow officer to arrive with a drug dog was reasonable and diligent . . . [w]e agree with the dissent that the panel majority engaged in post hoc second guessing of police conduct, imagining what other different investigative approaches might have accomplished. We choose not to go there. (emphasis added).
Hmmm. That is the second favorable Terry-related case from our Kansas Supreme Court in less than a month. A sign of a re-evaluation of the Court’s decades-long, unilateral and solitary, legal interpretations of Terry v. Ohio standards? Maybe. Time will tell.