Point of Law

A split Kansas Court of Appeals panel has, at least for now, changed Kansas law concerning the timeline for the calling of a drug dog at a traffic stop.  For decades we have all understood that based upon reasonable suspicion of a second crime occurring: an officer could continue to detain the car, call for the nearest drug K-9, and wait.  Yeah, well, so much for that last part.    

Sergio Arrizabalaga was stopped for a traffic violation on an evening in 2017.  The facts are not in dispute and the timeline is really what is important to understanding this case.  The facts and timeline are: 1) the officer had reasonable suspicion of a traffic violation to stop Sergio and to perform a traffic investigation; 2) during the stop and a conversation with Sergio, the officer developed (secondary) reasonable suspicion that a drug offense was occurring; 3) within 8 minutes, the officer had performed his traffic stop duties, gave Sergio a warning ticket, and released him from the traffic detention; 4) during the next 16 minutes the officer re-contacted Sergio, Sergio consented both to stay, to answer more questions, and, later, to a search of the vehicle; 5) after some questions but before the vehicle search began, Sergio revoked his consent to search; 6) still having (secondary) reasonable suspicion of a drug offense occurring, the officer re-detained Sergio and called for a drug dog; 7) the nearest K-9 took 24 minutes to arrive; 8) upon arrival, the dog alerted to the odor of controlled substances coming from the vehicle (PC to search), and a search found 111 pounds of marijuana.

The trial court later held two suppression hearings.  In the first, the trial judge found that the officer had developed reasonable suspicion of a drug crime occurring during the initial traffic stop investigation portion of the event.  In the second hearing, the trial judge found that even with such reasonable suspicion of a second crime, that nevertheless the officer had waited too long to call the dog, and therefore the overall stop had been unreasonably lengthened and had become unlawful.  The State appealed, arguing that despite when the officer might have called for a dog, reasonable suspicion of the then-occurring drug crime was all that was necessary to detain the vehicle until the closest drug dog was able to arrive.

In a 2-1 decision, the appeals panel agreed with the trial judge, holding that the officer should have called for the drug dog at the moment in time that the officer had developed reasonable suspicion of the drug crime; that the officer should not have waited until after he finished the traffic stop, after the consensual encounter questioning, after Sergio had consented to a search, and after Sergio had revoked his consent to search. 

Judge Gardner, the dissenting judge, said wait a minute……that is not the law.  Quoting the U.S. Supreme Court, Judge Gardner wrote, “In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.  A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.  A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished by ‘less intrusive’ means does not, by itself, render the search unreasonable.  The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.”  It was Judge Gardner’s position that 1) judges and other legal experts continually argue at what point in time during an event that an officer might have developed reasonable suspicion.  And, it has never been the law that simply because an officer thinks he or she has reasonable suspicion that such a belief is binding upon the case or the courts; and, 2) the question is not what the officer didn’t do (call for the dog earlier).  The question should be whether or not what the officer did do was reasonable under the particular circumstances of this particular stop (ask more questions, seek consent to search, and only when all that did not work, then call for the nearest dog).  That great dissent, however, was unable to carry the day.

The prosecuting County Attorney’s Office intends to request review by the Kansas Supreme Court.  Such a review is discretionary with our Supreme Court.  Hopefully, they will take it and fix this.  In the meantime, officers should think about calling for a dog sooner than later.    

A divided panel of the Kansas Court of Appeals has upheld 2-1 a trial court that had earlier found that an officer had unreasonably used race in deciding to initiate an enforcement action.  

K.S.A. 22-4609 says: “It is unlawful to use racial or other biased-based policing in: (a) determining the existence of probable cause to take into custody or to arrest an individual; (b) constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a vehicle; or, (c) determining the existence of probable cause to conduct a search of an individual or a conveyance.” 

In 2017, an officer was sent to an apartment complex on a theft call.  No suspect information had been provided.  As the officer exited his car in the complex parking lot, the officer testified that he detected the odor of marijuana.  In a nearby SUV with its windows rolled down were two African-American men.  The officer called out to the men, “You guys call?’  “No, sir” was the response.  

The panel majority said: “Taking a step towards the apartment building, [the officer] turned back towards the SUV, and while walking about eight steps to the passenger door, asked, ‘Where you all from?’  He received a reply, ‘Not here.’  When the driver, later identified as Gill, started to drive away, [the officer] let Gill know that he was not free to leave and that he had to answer [the officer’s] questions: ‘Hold on.  I’m talking to you . . . Because I got called out to this area . . . I know you didn’t call me.  Put the vehicle in park.’  At this point, [the officer] began addressing Gill as ‘dude’ and although Gill had not committed a traffic violation and seemingly was lawfully parked, [the officer] demanded Gill’s driver’s license and proof of insurance ‘because I’m asking for it.’  Eventually, after about another 39 seconds and some 94 seconds after the encounter started, [the officer] stated that he could smell marijuana in the SUV.  [A backup officer] arrived five minutes later and [the first officer] told [the backup officer] why he walked over to the SUV – ‘I’m out here for a theft case.  I pull up in my vehicle and these two are staring at me hard and start looking back so I start walking over here.” 

A search of the SUV found 18 individually wrapped baggies of marijuana.  Upon being charged, Gill filed a suppression motion alleging race-based policing had been unreasonably used in the officer’s decision to initiate the enforcement.  At the suppression hearing, the trial judge found that 1) the officer had not approached the SUV because of the theft investigation; and, 2) the officer’s testimony concerning the point in time when he smelled marijuana was not credible because from where the officer’s patrol car was located, the odor of marijuana could have come from a different car parked closer to the officer or from the nearby apartment complex.  

Based on that trial court finding, the panel majority held that since neither the theft investigation nor the odor of marijuana were reasons for the enforcement action, then the reason must have been the officer’s statement,  “These two are staring at me hard.”  Supporting that belief was the officer having “contemptuously refer[red] to Gill as ‘dude.”    

The dissenting member of the panel said hold on a minute: “. . . I draw a completely different conclusion from the evidence as the district court did.  There is simply no evidence of racial animus . . . there is no evidence in the record on appeal establishing that ‘staring at him hard’ equates to a race-based decision to initiate law enforcement action.  There is no testimony that [the officer] approached the vehicle because its occupants were African-American, nor is there testimony that such a statement is jargon or code for a race-based foundation of the stop.  I view the words ‘staring at him hard’ in this context as possible evidence of a guilty mind on the part of Gill instead of racial animus.  Although the district court said that [the officer] should have investigated the apartment complex and another vehicle – which appears to have been unoccupied with closed windows – before investigating whether the smell of marijuana was emanating from Gill’s vehicle, this is not a requirement the Kansas Supreme Court has placed on officers . . . the district court and the majority seem to view these four words [staring at him hard] in isolation from [the officer’s] entire statement.  [The officer] stated, ’I’m out here for a theft case.  And I pull up in the vehicle.  These two are staring at me hard and then start looking back so I start walking over here – I smell the odor of marijuana.’  And the back up officer, who was approximately 8 to 10 feet away from Gill’s vehicle, replied, ‘Jesus, I can smell it from here.”  

The dissenting judge was not done: “[a]nd no reasonable person could construe [the officer’s] use of the term “dude” when addressing Gill as racially insensitive . . the majority’s suggestion that [the officer] may have been motivated by his ‘implicit bias’ is also completely unsupported by the record.”  

As of this writing, the State has not requested review by the Kansas Supreme Court.  

What really makes this case extra hard for the State was the trial court’s officer credibility finding.  When the marijuana odor was removed from the equation, the argument became very difficult. 

That all said, here is another point in the case worth mentioning: a court can suppress evidence for violation of K.S.A. 22-4609 even when the violation does not involve the Exclusionary Rule and the Fourth Amendment (search and seizure).  The Kansas Supreme Court held in an earlier case that K.S.A. 22-3216(1) can be used to suppress evidence in a biased-based policing matter.  Remember that in this case the argument was not a search and seizure violation, rather it was a violation of the biased-based policing statute – the unreasonable initiation of enforcement.

 

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 State v. Palacio; No. 116,899

Macio Palacio Jr. was involved in a disturbance where he fired shots at the wrong vehicle and an innocent female passenger was killed.  Palacio was arrested and interviewed at the station.  Because Palacio was in arrest custody, and was being asked questions concerning the criminal event, the interviewing officers Mirandized him.  He agreed to speak to them.  One of the interviewers told Palacio that he knew Palacio was at the shooting and that Palacio’s gun had been used.  Another interviewer said, “I think about some poor girl’s parents.”  In response, Palacio said, “[h]onestly, I just want to talk to my attorney.”

The trial judge later found: “[A]fter defendant asked to speak to an attorney, [the Sergeant] proceeded to advise the defendant of the offenses he and his girlfriend were being charged with.  The officers then asked the defendant if he had any felony convictions or drug charges.  After the defendant answered these questions, the officers stood up to leave and stated they would get the paperwork prepared.  The defendant then stated he wanted to speak further to the officers and asked them to sit down.  After [the Sergeant] inquired as to whether the defendant wished to speak to them without an attorney, the interrogation continued.”

After restarting the interview, Palacio admitted to being the shooter.  After being charged, he requested that the trial court suppress all of his statements made after he asked to speak to his attorney.  Following a hearing, the trial judge suppressed only the statements made by Palacio between the time that he asked to speak to an attorney and when he told officers that he wanted to speak further with the officers.  Palacio was convicted and appealed saying that the statements of the officers, and the questions that they asked immediately after Palacio had invoked his right to counsel, were interrogative and thus a constitutional violation.  In essence, Palacio argued that the interrogation never ended.

The Kansas Supreme Court first noted that “once the right to have counsel present during interrogation has been invoked, the courts impose a relatively rigid requirement that interrogation must cease.  The interrogation can continue only after a lawyer has been made available or the suspect reinitiates the interrogation . . . Although Palacio asked the officers to sit down and told them he wanted to talk without a lawyer present after he listened to those statements and answered the questions, his comments would not qualify as reinitiation if they occurred after interrogation.  A valid waiver of a previously asserted right cannot be established by showing only that the suspect responded to further police-initiated custodial interrogation, even if the suspect has been advised of his rights.”

Interrogation is “express questioning” or “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.  The Supreme Court then held that “express questioning is not per se interrogation.  Rather, it is subject to the same test as an officer’s other conduct.  An officer’s words or actions, including explicit questioning, is interrogation only if the officer should have known that the questioning was reasonably likely to elicit an incriminating response from the suspect.”

The comments and questions in Palacio’s case were either declarative statements meant to inform Palacio of the reasons he and his girlfriend were in custody, or they were questions that did not otherwise concern Palacio’s involvement in or knowledge of the crimes the officers were investigating.  The officers were not offering any information for Palacio to consider or pressuring him to change his mind [about speaking to an attorney].  The officers did not violate Palacio’s Fifth Amendment rights.

As for asking for the interview to continue, the Supreme Court agreed with the trial court that Palacio knowingly and intelligently waived his previously invoked right, and that his statements, “showed a desire . . . to re-engage in dialogue with law enforcement about the investigation.”

Then, the Supreme Court took up the issue of whether Palacio’s confession as the shooter was voluntarily given.  To decide that question, Kansas courts look at the following factors: 1) the accused’s mental state; 2) the duration and manner of interrogation; 3) the ability of the accuse on request to communicate with the outside world; 4) the accused’s age, intellect, and background; 5) the fairness of the officers in conducting the interrogation; and, 6) the accused’s fluency with the English language.  Palacio argued only the fifth factor: that the officers conducted the interrogation unfairly.

The Supreme Court again agreed with the trial judge who had earlier found based upon the recorded interview that “the officers spoke to the defendant in a polite and conversational tone . . . The officers did not at any time threaten, coerce, or engage in deceptive practices during the interview.  No promises were made . . . the defendant was treated fairly by the officers . . .”

The Supreme Court did note that Palacio also complained that the interviewing officer’s statement “I think about some poor girl’s parents” was coercive.  But, “[p]olice appeals to the defendant’s sympathies, such as the now-famous ‘Christian burial speech’ ploy, ‘do not automatically render a confession involuntary.  Rather, “[t]heir use must instead be considered in conjunction with the rest of the circumstances.”  Because none of the other factors in the test for voluntariness suggested coercion, that single statement, even if it was coercive, failed to render the confession involuntary.

Since 2016 the Kansas Legislature has been reviewing our state’s law enforcement policies concerning civil asset forfeiture.  On the recommendation of a 2017 Kansas Judicial Council subcommittee report, amendments were made in 2018 to the state forfeiture act.  And, those changes will probably not be the final word.  The Legislature will take some time to gather additional information and then again review the reform activists’ arguments.  In a nutshell, the complaints tend to be: 1) a law enforcement tool that removes property from criminal use and benefit is bad public policy; 2) forfeiture of property should first require a criminal conviction of those involved; 3) law enforcement should not receive the proceeds of asset forfeiture; and,4) Kansas law does not provide sufficient due process to property owners and possessors before forfeiting property.

Holding Seized and Forfeited Monies: One important 2018 change concerned how Kansas law enforcement agencies are to hold and process seized, and later forfeited, monies.  With those requirements in mind, administrators should immediately put into place procedures that prevent the commingling of the different kinds and sources of funds.  Agencies should now have the following separated funds: 1) a holding fund for seized monies that are pending state court forfeiture; 2) a law enforcement trust fund for monies forfeited by a state court and to be used in the future by that law enforcement agency; 3) a fund to hold and use federal court forfeited funds that have been shared with the Kansas agency through the federal equitable sharing program; and, 4) a fund to hold and expend state drug tax sharing funds from the Kansas Department of Revenue.  There should be no private bank accounts because all forfeited monies are to be received, held, budgeted, and expended through the same process regulating other public funds.  Lastly, all interest earned by forfeiture and drug tax accounts should be returned to those accounts and should not be sent to the general fund. 

Spending Forfeited Monies: The second change important to administrators, also effective on July 1, 2018, was some better guidance on how to lawfully expend monies forfeited in state court proceedings.  For many years it has been both national and Kansas policy to send the proceeds of civil forfeiture to the law enforcement agencies that provided the investigative and litigation resources necessary to enforce the forfeiture laws.  In Kansas, those forfeited funds were to then be expended by the law enforcement agencies for “special, additional law enforcement purposes.”  In essence, the general policy redirected criminal property to a more lawful use while at the same time provided additional non-tax funding to law enforcement agencies.  With the 2018 amendments, and thanks directly to retired Chief Ed Klumpp, Kansas agencies now have much better guidance about what the phrase “special, additional law enforcement purpose” means.  Inspired by federal equitable sharing use rules, an amendment to K.S.A. 60-4117(e) now lists twelve general guidelines of proper expenditures, including things like law enforcement equipment, training, travel, and sharing between agencies.     

Reporting Seized and Forfeited Property: Prior to 2019, law enforcement agencies were only required to annually report forfeiture receipts and expenditures to their respective governing bodies.  That requirement has been repealed and two new reporting requirements will become effective July 1, 2019. 

First, all Kansas law enforcement agencies that seize property for civil forfeiture will be required, upon final disposition of the forfeiture case, to report that information to a new on-line state forfeiture repository operated by the KBI.  Law enforcement agency administrators will need to begin reporting all cases that have a final disposition occurring on and after July 1, 2019, even if the original seizure of the property occurred prior to July 1, 2019. 

Second, and on an annual basis, all Kansas law enforcement agencies (whether they have seized property for civil forfeiture or not), will be required to report monies and property forfeited, held, and expended during the previous calendar year.  Even if none, an annual report has to be filed.  The first annual report will be due in 2020 and will cover the six-month period July 1-December 31, 2019.    

KBI is currently completing work on the new reporting program’s rules, regulations, and online website.  KBI is committed to assisting agency administrators in complying with the new requirements, and KBI personnel are currently on the road doing training sessions to fulfill that goal.  Questions about the repository, online access, and new reporting requirements should be directed to:

Jessica Crowder, Program Consultant II
785-296-8338
Jessica.Crowder@kbi.ks.gov

Mitch Beemer, IBR Unit Manager
785-296-8279
Mitch.Beemer@kbi.ks.gov

The 8th Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”   The “excessive fines” clause of that Amendment protects against “grossly disproportional” fines.  Think small crime, huge fine.  In 1993, the U.S. Supreme Court held that civil asset forfeiture cases brought by the federal government were quasi-punitive and were therefore subject to the 8th Amendment’s excessive fines clause.  Since then, when a federal court forfeits property gained or used in crime, that decision is subject to a “gross disproportionality” review.  Think small federal crime, huge federal forfeiture of property.  Thus, the 8th Amendment requires a balancing of community and individual interests. 

Tyson Timbs was convicted on state theft and controlled substances charges.  At his arrest, Indiana authorities seized his $42,000 Land Rover that had been purchased with his late father’s life insurance proceeds.  The State of Indiana alleged that the Land Rover had facilitated  [had made easier] committing the crimes.  Property that facilitates crime is forfeitable both federally and in almost all states including Kansas.   

The Indiana trial judge agreed that the Land Rover had facilitated Tyson’s crimes and that it was therefore forfeitable.  However, the judge further held that because the value of the Land Rover was greater than the maximum $10,000.00 fine that could have been imposed in the parallel criminal case against Tyson, it would be unconstitutional under the 8th Amendment to forfeit the Land Rover in the civil forfeiture case.  The Court of Appeals of Indiana agreed.  But, the Indiana Supreme Court did not.  The Indiana justices held that the 8th Amendment’s excessive fines clause has never applied to the states, and that the trial judge erred by looking to that clause.  Tyson appealed to the U.S. Supreme Court.

The Big Court agreed with Tyson that the excessive fines clause should apply to the states, and reversed the Indiana Supreme Court.  “When ratified in 1791, the Bill of Rights applied only to the Federal Government.  The Constitutional Amendments adopted in the aftermath of the Civil War, however, fundamentally altered our country’s federal system.”  Over the years, the Court has made applicable to the states through the 14th Amendment most of the rights contained in the first ten Amendments known as the Bill of Rights.  In short, the right against excessive fines in federal courts is now a right in state courts.

The Big Court sent the case back to Indiana for it to determine if the forfeiture of a $42,000 Land Rover is grossly disproportional to the societal damage caused by the Land Rover when it made the serious crimes easier and more efficient to commit.

That said, the Timbs case will have little practical impact in Kansas civil forfeiture cases because Kansas has already codified into our state law those same excessive fines protections.  In 1993, the Big Court had just held in Austin v. United States that the excessive fines clause applied in federal civil forfeitures.  Because Kansas was at that same time reforming its civil asset forfeiture laws, our Legislature included in the 1994 state forfeiture reform act an excessive fines protection procedure.  See K.S.A. 60-4106(c).

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)