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.

Colin

Others this week will speak about this much more eloquently, but I wanted to add something important, at least to me.  

Gerald Ford was in the White House.  I was a wet-behind-the-ears rookie standing in January snow on the first rustic KLETC firearms range.  And, I had a problem.  Well, I had a lot of problems but one of them was a frightful anticipation-jerk when I pulled the trigger of my blue Colt Python.  Every round seemed to have a better chance of hitting Hutchinson than the target.  That week there was a volunteer FBI agent helping the range master.  He watched a while, then came over, demanded my wheel gun, turned away, loaded what turned out to be fewer than 6 rounds, spun the cylinder, closed it, and handed it back.  My first trigger pull landed on an empty chamber and I almost threw the Colt into the snow.  The second pull was not quite so bad.  As the day ended, my dangerous jerk was gone.  For a career it was gone.  

Just who was that volunteer FBI agent who did more for the safety of everyday Kansans that day in Yoder than he ever knew?  I did not know for 20 years.  By that time, I had joined the KBI and we were welcoming a new Director, Larry Welch.  Director Welch told stories.  Unlike many others who tell stories, the Director told good stories.  Funny stories.  One of those stories involved him helping at the KLETC firearms range when Gerald Ford was in the White House.  I am not the sharpest knife in the drawer, but even I could put those facts together and find probable cause that the unidentified FBI agent was a much younger Larry Welch.

Later, the Director, a law school graduate and big proponent of education, granted my request to rearrange my agent duties so as to attend law school.  That resulted in years of direct benefit for the KBI, and a later great second career for me.  A second career that has allowed me to help Kansas officers be a little better at their jobs.  The same thing that the Director did in each of his multiple careers.

I had enjoyed and learned from decades of reading the Director’s Point of Law magazine articles where he talked about the latest changes at the “Big Court” as he described the United States Supreme Court.  Beginning in 2004, I tried to emulate the Director’s ability to speak directly to officers by writing myself on case law changes.  He and I were successful in that because we were not “lawyers.”  We were both law enforcement officers who happened to have attended law school.  There is a true difference there.   That difference probably gave us not only credibility, but it allowed us to find in a case only what mattered to the street officer, and to not waste officers’ time wandering in the legal weeds.

Though only acquaintances at best, our paths crossed one last time a couple of years ago.  The Director was going to retire from writing Point of Law, and I was asked to step in.  Big shoes, I thought.  I sent him a note thanking him for what he had done for me over the years, and told him that I would try hard.  His note back to me was better than great.  

The Director passed away last week.  I told you in my first Point of Law article that I was going to steal from Larry Welch the phrase “Big Court” when referring to the U.S. Supreme Court.  I have done that.  I will continue to do that.  And, each time I type “Big Court,” I will think of the Director and his contribution to Kansas law enforcement.  I hope you do too.

Thanks again, Director. 

Colin

We have been watching the following four street-law enforcement cases currently before the United States Supreme Court: 

(1) Caniglia v. Strom, Question: Whether the “community caretaking” exception to the search warrant requirement extends to the home;

 (2) United States v. Cooley, Question: Whether evidence should have been suppressed when an Indian tribe police officer detained and searched a non-Indian on a public highway within a reservation; 

(3) Lange v. California, Question: Whether the pursuit of a person who has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant; and, 

(4) Torres v. Madrid, Question: Whether an unsuccessful attempt to detain a suspect by use of physical force is still a “seizure” under the Fourth Amendment.

Torres v. Madrid

The Big Court recently decided the Torres case and changed many decades of legal understanding about when a Fourth Amendment “seizure” of a person occurs.  In a 5-3 decision, the majority of justices said that law enforcement need not have taken a suspect into physical custody for there to have been a “seizure” and the protections of the Fourth Amendment to have been triggered.  

In 2014 in Albuquerque, New Mexico, state officers attempted to contact Torres in a parking lot thinking she was the target of an arrest warrant.  Torres, who later admitted to having been on methamphetamine at the time, entered her car and drove toward the officers.  “Fearing the oncoming car was about to hit them, the officers fired their duty weapons, and two bullets struck Ms. Torres while others hit her car.”  Torres did not stop, collided with another car, stole a second car, drove 75 miles and was eventually treated at a hospital and arrested the next day.  She later pleaded no contest to assault on a police officer, aggravated fleeing from an officer, and the unlawful taking of a motor vehicle.

More than two years later, Torres sued the officers under the federal civil rights statute, 42 U.S.C. 1983, for deprivation of her Fourth Amendment rights alleging the officers used excessive force in an unreasonable seizure.  The federal trial court, and later the 10th Circuit Court of Appeals, held for the officers holding that “no seizure can occur unless there is physical touch or a show of authority” and that “such physical touch (or force) must terminate the suspect’s movement” or otherwise give rise to physical control over the suspect.  Since Torres drove away, the lower courts said that there was no seizure.  Without a seizure, the Fourth Amendment was never triggered.  (Note that Torres may well have had state tort law remedies but she had failed to file a state court case before the expiration of New Mexico’s statute of limitations; however, there is no statute of limitations in the text of § 1983).

The Big Court’s majority reversed, holding that “the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued.”  The case was sent back to the trial court.  However, that does not necessarily mean any officer liability since the majority did say that “we leave open on remand any questions regarding the reasonableness of the seizure, the damages caused by the seizure, and the officers’ entitlement to qualified immunity.”  So, the case holding was somewhat narrow and only re-defined when a “seizure” occurs for Fourth Amendment purposes.

The dissenting justices: Gorsuch, Thomas and Alito noted that “[u]ntil today, a Fourth Amendment ‘seizure’ has required taking possession of someone or something.  To reach its contrary judgment, the majority must conflate a seizure with its attempt and confuse an arrest with a battery.  In the process, too, the majority must disregard the Constitution’s original and ordinary meaning, dispense with our conventional interpretive rules, and bypass the main currents of the common law. . . . Neither the Constitution nor common sense can sustain it.”

The other three cases, Caniglia, Cooley, and Lange, remain pending and should be decided before summer.

Kansas Court of Appeals No. 120,345; December 11, 2020

A panel of the Court of Appeals has recently issued an opinion and it is hopefully the last word in a civil case concerning which law enforcement agency truly owes an old hospital bill of an injured suspect.  The case involved the chase of a murder suspect, a hostage situation, and an arrest where the suspect was injured.  The main question was when there are multiple agencies involved in an event where a detained suspect is injured, which agency is responsible for the medical bill? 

In 2009, multiple KHP, Geary County, Shawnee County, and Topeka personnel were involved in a chase.  After the vehicle was disabled, the suspect ran into a house and held the occupants hostage.  KHP set up a command post and ordered a precautionary ambulance.  Supervisors from the agencies met and agreed on coordination of the differing on-scene units and skills.  In the end, a tactical unit entered the house and arrested the suspect.  During the arrest one of the officers’ weapons accidently discharged striking the suspect.  Officers from multiple agencies traveled with the suspect to Stormont Vail Hospital, stayed during surgery, and did guard duty.  

The hospital treatment bill was $41,700.00.  Years of legal wrangling followed.  Many years.  

The question?  Which agency was responsible for the medical bill under K.S.A. 22-4612.  In pertinent part, that statute says: “[A] county, a city, a county or city law enforcement agency, a county department of corrections or the Kansas Highway Patrol shall be liable to pay a health care provider for health care services rendered to persons in the custody of such agencies the lesser of the actual amount billed by such health care provider or the medicare rate.”

First, the panel affirmed an earlier holding that under that statute “custody” includes both formal arrest and detention that is the equivalent of an arrest.  

Second, what happens when there are multiple agencies involved in the arrest?  Which agency has “custody?”  The Court said that “[i]n a coordinated police action involving multiple law enforcement agencies, the agency ‘with operational control’ has the obligation under K.S.A. 22-4612 to pay for medical treatment requested during the action for an injured person taken into custody . . . [s]o if the response team acted in something other than a ‘willy-nilly exercise’ . . .  then the test for operational control is simply this: Who was ‘the captain of the team?’”

But, wait, in this case the officer who caused the injury was not employed by the “captain of the team” agency.  Does that make a difference?  No, the panel said.  “The obligation to pay under K.S.A. 22-4612 does not have a fault-based component to it.”  The captain is still responsible.

Left unanswered by the opinion are those noted “willy-nilly” situations that involve less time and less coordination between responding agencies.  And, they happen all the time.  Agency heads now have something else to think about and plan for.  

Colin

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).