Point of Law

The Kansas Supreme Court has finally given us some guidance for when officers detect the odor of marijuana coming from a residence.  The issue has been muddy for years. 

During an arrest warrant investigation, officers contacted Lawrence Hubbard at his apartment.  When Hubbard opened the door and stepped outside, officers detected the “strong odor of raw marijuana emanating from the apartment.”  Through open window blinds, officers noticed five to seven people in the apartment.  When Hubbard again opened the door to re-enter the apartment, the odor was again present.  Hubbard closed the open window blinds.  Officers decided to seek a search warrant and ordered everyone in the apartment to leave.  No one was searched as they left, but officers noted that they did not smell marijuana on anyone as they departed.

Officers then secured the apartment awaiting a search warrant.  As a part of that security effort, a physical sweep of the apartment was done to make sure that no one else was present, and the sweep was confined to only those places where a person could hide.  During the sweep, officers saw drug paraphernalia in plain view.  A search warrant was obtained and during its execution, officers found a small amount of marijuana and seized the earlier-noticed paraphernalia.  Hubbard was charged with misdemeanor possession.  He asked the trial judge to suppress the evidence arguing: 1) the odor of marijuana coming from a private residence, standing alone, does not amount to probable cause; 2) the protective sweep was unnecessary and therefore illegal; and, 3) when officers testify about recognizing the odor of marijuana, they should have to qualify as experts and not just testify based upon their training and experience.  After a hearing, the trial judge said no.  The Kansas Court of Appeals later said no.  Last week, a divided Supreme Court (4-3) also said no.    

MJ Odor and Probable Cause: “Probable cause can be established if the totality of the circumstances indicates there is a fair probability that the place to be searched contains contraband or evidence of a crime.”  In odor cases, those circumstances include, but are not limited to: 1) proximity to the odor’s source; 2) reported strength of the odor; 3) experience identifying the odor; 4) elimination of other possible sources of the odor; and, 5) the number of witnesses testifying to the odor’s presence. 

But, importantly, the Court warned us, “[t]his is ultimately a case-by-case determination based on the circumstances.  Not all cases relying on odor will have the same result.”  So, remember that houses are just different and probable cause for a house warrant will assuredly receive a more critical review.

Protective Sweep/Exigent Circumstances: A “protective sweep” of a house or other building is a Fourth Amendment search, and it requires consent, a search warrant, or a recognized exception to the warrant rule.  There are two kinds of protective sweep exceptions, and both are based in part upon “exigent circumstances.” 

The first is for officer safety: a protective sweep is proper during an arrest when it is reasonable to believe that there may be other persons present who could be an immediate danger to the officers.   

The second is when officers reasonably believe that before a search warrant can be obtained evidence will be destroyed or concealed.  Hubbard’s situation involved this second type of sweep. 

Courts analyze the existence of exigent circumstances by looking at the following factors: 1) the time needed to secure a search warrant; 2) the reasonableness of the officers’ belief the evidence may be immediately lost; 3) potential danger to the officers guarding the site while awaiting a search warrant; 4) whether those persons with possession of the evidence are aware of the officers’ presence; and, 5) the ease with which the evidence might be destroyed or hidden. 

Here, the Court agreed that because there was probable cause to believe marijuana was in the apartment and because marijuana is easily disposed of, officers properly swept the apartment for other unknown persons who could have destroyed or hidden the evidence.  Also, because the officers were performing a proper sweep, their legal presence in the apartment allowed them to legally see in plain view the drug paraphernalia, and to later note that in the search warrant affidavit.  

Officer Testimony About Odor: This was really the main disagreement between the justices.  The question was: when an officer testifies that based upon his or her training and experience the odor the officer detected was marijuana: is that statement a fact or an opinion?  And, if its an opinion, is it a lay opinion or an expert opinion?

Generally, a lay witness’s opinion should not be based upon scientific, technical or other specialized knowledge.  Here, the Court’s majority held that “in this instance we are confident it is within the realm of common human experience to smell something and subsequently be able to recognize that same odor again, e.g. alcohol, gasoline, freshly baked bread, recently cut grass, and so on.” 

So, the Court found that an officer’s odor-identification testimony is an opinion but it is a lay opinion.  And, for these purposes, that is sufficient. 

Colin

You may recall the 2008 case of Martin v. KDOR that involved the “third” or “top-middle” brake light found on newer cars. The third light is usually mounted either inside or outside of the vehicle’s rear window. In Martin, the Kansas Supreme Court recognized the new “third” lights as acceptable brake lights, and went on to hold that the Kansas brake light statute, K.S.A. 8-1708, requires that only two of those three brake lights have to function. Unfortunately, not everyone got the word.

In 2017, Aaron Lees was leaving a casino when an officer noticed that the left-side brake light on Aaron’s car was out. The right-side brake light and the “top-middle” brake lights were functioning. Apparently unaware of Martin, the officer stopped Lees for a violation K.S.A. 8-1708(a). During the stop, Lees was arrested for DUI. Predictably, Lees asked the trial court to suppress the car stop (and thus the resulting DUI investigation) arguing that the officer did not have reasonable suspicion of a traffic violation for the initial stop, citing Martin.

In the suppression hearing, the State did not contest that the officer had made a mistake of law, but instead argued that the mistake was a reasonable one. And, the U.S. Supreme Court has previously decided that reasonable mistakes of law do not invalidate reasonable suspicion. The trial judge did not buy it and suppressed the car stop. The State appealed. Last week, a panel of the Kansas Court of Appeals agreed with the trial judge. The panel held that Martin is still good law and the officer’s mistake of law was not objectively reasonable because law enforcement has been on notice since 2008 that the “top-middle” light is a brake light. “[The officer] made the same mistake of law that the officer in Martin made over 10 years ago in Martin. [The officer] is a law enforcement officer, not an average citizen, and he is expected to understand the laws that he is duty bound to enforce.”

A second issue in the case was K.S.A. 8-1759a, the special vehicle inspection authority of KHP that says: “(a) Uniformed members of the highway patrol, at any time upon reasonable cause to believe that a vehicle is [1] unsafe or [2] not equipped as required by law, or that [3] its equipment is not in proper adjustment or repair, may require the driver of such vehicle to stop and submit such vehicle to an inspection and such test with reference thereto as may be appropriate.”

After lengthy discussion, the panel judicially narrowed the statute’s authority by adding the word “required” to number [3]. In other words: Troopers may stop a vehicle under [3] only when “its required equipment is not in proper adjustment or repair.” An example would be a driver that has mounted a large antenna on his car to receive messages from his Mother Ship in deep space. Everyone that sports a tin foil hat knows that such antennas are to be adjusted to the Flint Hills electromagnetic fields-50 Ohms of the Standing Wave Ratio. So, under the panel’s new ruling, a Trooper seeing such an antenna obviously out of tune, no longer has authority under K.S.A. 8-1759a to stop the car because having an antenna to communicate with space aliens, properly aligned or not, is not statutorily required to operate a vehicle in Kansas.

Colin

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?

We have been expecting from the Kansas Supreme Court three cases on traffic stop law.  All three came down last Friday and all three leaned heavily upon Rodriguez v. United States, a watershed 2015 U.S. Supreme Court traffic/dog sniff case (135 S.Ct. 1609).  To say the least, these latest Kansas decisions have narrowed an officer’s ability at a routine traffic stop to inquire into matters not directly connected to the traffic infraction.  If you stop cars as part of your duties, you will want to read and think about these cases because they are guaranteed to be the topic of discussion in your future suppression hearings.

I always try to keep these summaries as short as possible and because the cases are discussed jointly by the Court, I am going to dispense with the facts and pass along only the highlights.

The highlights of the cases are:

1. The Court holds in Schooler that the officer had reasonable suspicion to detain the car for a drug dog, but 3 justices find potential future fault as discussed in #6 below.  Jimenez holds the officer’s detailed questions into travel plans, which therefore delayed processing the driver’s license and outstanding warrant inquiries, measurably extended the stop.  Lowery holds that the officer did not have reasonable suspicion to further detain the car (video did not support “extreme nervousness;” minor discrepancies in travel plans do not support reasonable suspicion; a third-party vehicle, when vehicle ownership, insurance, and registration are not in question, adds little; the destination of Colorado, when the driver’s license showed Colorado as the driver’s current address, is of no value; a vehicle’s tag showing multiple trips past a license plate reader, when there is no testimony as to the times and dates of the readings, was no evidence that the car had traveled on to Colorado; when investigating why a driver would fly one-way yet chose to drive back, the checking of online airline ticket prices for the day of the stop does not provide any legitimate information about the price of the tickets purchased on the earlier day.
   
2. The following are the ordinary inquiries within the “mission” of all traffic stops: 1) checking the driver’s license; 2) inspecting the automobile’s registration and proof of insurance; 3) determining whether there are outstanding warrants against the driver; and, 4) the “negligibly burdensome precautions” for officer safety.  Remember in a case a few weeks ago (State v. One 2008 Toyota) that criminal history (Triple I) is not an ordinary inquiry of every car stop.  Officers should have an officer safety reason to inquire, or inquire while multitasking as explained below.
   
3. Officers are to “diligently pursue the traffic investigation;” and, without consent or reasonable suspicion of a second crime, “on-scene investigation into other crimes . . . detours from the [that] mission [and becomes unlawful].”
   
4. Travel plan questioning “is not always within a traffic stop’s scope.”  Travel plans are best inquired about while other duties of the stop’s “mission” are occurring.
   
5. Questioning “within the scope of the stop” are questions with a close connection to the initial infraction under investigation or to roadway safety, i.e. ensuring vehicles on the road are operated safely and responsibly.  Without consent or reasonable suspicion of separate criminal activity, inquiries about subjects “outside the scope of the stop” must be done only at the same time as the officer is completing the tasks appropriate for the processing of the initial infraction.  As the Court explained, that would be known as “overlapping” efforts or “multitasking.”  Otherwise, the “outside the scope” questioning unlawfully extends the duration of the stop.
   
6. Courts are to review traffic stops on a case-by-case basis; a particular stop’s reasonableness of time depends upon what the particular officer did or did not do during the particular stop; how long other similar types of past traffic stops have taken is irrelevant.  And, courts are to “guard” against “mission creep” referring to officers conflating the inquiries that are approved with inquiries that are either unwarranted or unauthorized.
   
7. Concerning those officers having developed reasonable suspicion of a second crime (and thus having the authority to continue to detain and question the driver) but who choose to hold in reserve such detention authority and simply tell the driver that he or she is free to go (in an effort to transform the detention into a consensual encounter allowing the officer to request consent to search the car): Justice Rosen (joined by Justices Johnson and Beier) noted at the end of Schooler that, “the issue of whether any consent or confession was voluntary is a question for another day . . .   However, there should be no doubt that constitutional concerns arise when a detained traveler on the roadway is purposely misinformed that the basis for the detention is no longer in place and as a result the traveler is free to leave. . . I would caution law enforcement officers against using the promise of freedom in any attempt to circumvent the protections afforded by our Constitution.”

The bottom line issues in traffic stops continue to be scope of the inquires, and the duration of the stop.  For criminal interdiction purposes, the best practice will be multitasking: the ability to do two things at once will help prevent a car stop from being unlawfully extended.  Barring a driver’s consent or the development of reasonable suspicion of a second crime, officers should inquire about things outside the scope of the original reason for the stop only while performing the “mission” of a car stop: which is usually the enforcement of the traffic infraction. 

Although not a question before the Court here, I predict that the next big issue will be the intersection of the car stop’s “mission” and the speaking with passengers.  To be safe, multitasking will be the word of the day there, too.

Full text of each opinion:

• State v. Schooler, No. 116,636;
• State v. Jimenez, No. 116,250;
• State v. Lowery, No. 116,637;
• Rodriguez v. U.S., 135 S.Ct. 1609 (2015)