Director
Larry Welch ( Ret)
May 30, 2008
(A disappointing ruling that defies other state and federal court opinions, and at least one U.S. Supreme Court decision, Muehler v. Mena, 544 U.S. 93 (2005). The Kansas Big Court holds that we violate the Fourth Amendment when we ask a passenger in a vehicle stopped for a traffic violation to consent to a search (purse) that is unrelated to the purpose of the stop (drugs).)
Early one September morning, a Winfield officer observed a vehicle with a broken taillight and followed it until it parked in an angled parking space on the side of the street. He had intended to pull the driver over, but the latter parked first. The officer parked behind the vehicle, activated the emergency lights, and then observed the vehicle had expired tags.
The driver exited the vehicle and approached the patrol car. The officer gave the driver the reason for the stop (taillight) and asked about the expired tag. The driver claimed the car belonged to his girlfriend and he knew nothing about an illegal tag.
At this point, as the officer later testified, the car was going to be towed and the driver was going to receive a citation. But then a passenger emerged from the car and sat down on some nearby steps. The officer recognized the passenger, Lacey Smith, our defendant, and knew she was not the owner of the car or the tag, or the driver's girlfriend. He greeted her very briefly.
Meanwhile, a second officer arrived to provide backup. He also recognized Lacey and he suspected she might have drugs in her possession. He approached her, greeted her (“How are you doing?”) and asked if he could look in her purse. She consented (Felony Stupid raises its head again) and officer #2 finds meth in the purse and arrests Smith. He transported her to the police station where he found drug paraphernalia in her possession. She also made incriminating statements.
Officer #1 was in the process of citing the driver and handling the tow when officer #2 and Smith left that scene. Smith is charged with felony possession of meth and misdemeanor possession of drug paraphernalia. She moved to suppress the evidence seized during the search of her purse and person, and to suppress her incriminating statements.
The district court found Smith was lawfully seized as a passenger of the stopped car, but held that officer #2’s request for consent to search for drugs exceeded the scope of the stop and was improper. Evidence and statements were suppressed.
The Kansas Court of Appeals reversed the lower court and here the Kansas Supreme Court reversed the appellate court, finding for the defense, holding that officers conducting a routine traffic stop must have particularized suspicion before requesting permission to search the vehicle or anyone for drugs. Such a request, the court says, is not within the permissible scope of an investigative stop or Terry v. Ohio temporary detention. Any such request for consent to search must be related to the traffic violation, even if the request and search do not prolong the duration of the traffic stop.
The Kansas Supreme Court noted that, without particularized suspicion justifying more extensive inquiry, an officer, in a traffic stop, according to Kansas appellate courts, “…may request the motorist’s driver’s license, car registration, and proof of insurance; conduct a computer check; issue a citation; and take those steps reasonably necessary to protect officer safety. The stop can last only as long as necessary to complete those tasks, and those tasks must be diligently pursued.”
(Bottom line: No probable cause or reasonable suspicion of criminal activity on the part of Lacey Smith. Perhaps if the drugs had been found in the broken taillight rather than purse? This ruling is contrary to the position of the U.S. Court of Appeals for the Tenth Circuit, which covers Kansas. “Detention for a traffic citation can turn into a consensual encounter after the trooper has returned the driver his documentation so long as a reasonable person under the circumstances would believe he was free to leave or disregard the officer’s request for information.” U.S. v. Guerrero – Espinoza, 462 F. 3d 1302, 1308 (2006).)