In follow up on an issue in State v. Schooler (No. 116,636, lightly discussed in a June 27, 2018 summary): for those who have attended my Legal Issues in Car Stops class they will recall that the class ends with review of four possible resolutions to many investigative stops.
In Scenario No. 1, the officer is not suspicious beyond the initial traffic offense and simply releases the car after the enforcement action, if any.
In Scenario No. 2, the officer has become suspicious of other criminal activity but his/her “gut hunch” does not rise to reasonable suspicion to allow for further detention. The officer can choose to release the car or attempt to transform the temporary detention into a consensual encounter, allowing for more questions. If the driver consents to stay and respond to questions, then the officer could ask for consent to search.
In Scenario No. 3, the officer has developed reasonable suspicion of additional criminal activity beyond the original traffic offense, and thus has authority to continue the detention to ask more questions and/or wait for a dog. And, the officer does so.
In Scenario No. 4, the officer has developed reasonable suspicion of additional criminal activity beyond the original traffic offense, and thus has authority to continue the detention to ask more questions and/or wait for a dog. But, the officer chooses to stay quiet about the reasonable suspicion, and instead attempts to transform the temporary detention into a consensual encounter. Should the driver consent to stay and respond to questions (a consensual encounter ensues), then the officer could request consent to search the car. However, should the driver decline consent to stay or answer questions, then and only then would the officer tell the driver that the officer possesses reasonable suspicion of additional criminal activity and continue the investigative detention.
In Schooler, three of the justices voiced doubts about the procedure in Scenario No. 4. Those justices believe that telling a driver that they are free to leave when they are not is a lie. Whether such a lie actually taints the driver’s later consent to stay or consent to search is a question for a future case. But, Justice Rosen noted in his Schooler concurrence that “ . . . I would caution our law enforcement officers against using the promise of freedom in any attempt to circumvent the protections afforded by our Constitution.” In response to the doubts of the Court the State might argue: if at the time of consent the driver was unaware of the officer’s intention to continue the detention (in other words the driver is unaware of the “lie”), then the driver’s consent could not have been tainted by a fact unknown to the driver. But, that is an untested argument and with the loud rumblings in the Court it may be best not to have to cross that bridge.
With that history in mind, I have had conversations with a number of interdiction officers, deputies, and Troopers concerning the continued need for the procedure described in Scenario No. 4. Scenario No. 4 has apparently come about in an effort to deal with the Kansas Supreme Court’s legacy Terry v. Ohio rule prohibiting requesting consent to search during the temporary detention at a typical car stop. Because the Court is concerned about “fishing expeditions,” the Court has repeatedly held that during detention and in the absence of reasonable suspicion of other criminal activity, Kansas officers may not request consent to search a car. (See State v. Smith, 286 Kan. 402, 429 (2008); State v. Cleverly, 305 Kan. 598, 614 (2016)). Note here that when an officer has reasonable suspicion of other criminal activity then the officer may ask questions concerning such other criminal activity. And, those other questions could include requesting to search the car for evidence of that other criminal activity. Why? Because it is no longer a “fishing expedition.”
So, for those that still use Scenario No. 4, it may be a best practice to discard Scenario No. 4 and its potential pitfalls. Simply add to Scenario No. 3 (officer has reasonable suspicion of additional criminal activity) a question during the continued detention: may I search the car?