Thursday, May 04, 2006

The Lt. Columbo gambit

Randall Fisher won in State v. Hayes, No. 94,313 (Kan. App. April 28, 2006), reversing a Harvey County drug conviction based on a Fourth Amendment violation. In this case, the officer had stopped a driver for speeding early one morning and had checked her ID and decided to give her a warning. He told the driver that he was giving her a warning and gave her documents back. Then he asked if he could ask her a few questions. (This has been coined the "Lt. Columbo gambit" by Professor LaFave). The driver said yes and the encounter extended until the driver consented to the search and officers found drugs.

The COA acknowledged that the officer had returned the driver's documentation, it rejected the state's claim that the encounter had become consensual:

The facts here present more an even more compelling basis to find that a reasonable person would not have felt free to go. Here, when Officer Hall returned Nichols' documentation, she was not even in her vehicle. Rather, in order to receive her warning citation, Nichols was required exit and stand outside of her vehicle in the presence of two officers and in front of both patrol vehicles, with emergency lights flashing. Further, instead of telling Nichols she was free to go, or that he had nothing further for her, Officer Hall told Nichols "as far as that [is] concerned we [are] done."
We believe that under the circumstances, this statement would imply to a reasonable person that other matters remained to be addressed, particularly where, as here, the statement was followed by the officer's offer to provide Nichols with directions. Significantly, even though this offer was accepted by Nichols, Officer Hall did not immediately give her directions or walk her back to her vehicle. Rather, he asked her if he could ask her a few more questions.

Under the totality of the circumstances, we conclude that at the time Officer Hall returned Nichols' documentation and issued her a warning citation, a reasonable person would have felt additional matters remained to be addressed before the encounter could be terminated and would not have felt free to go. We therefore hold that Nichols' agreement to answer additional questions was not consensual and Officer Hall's questioning of Nichols following the return of her documentation exceeded the scope of the traffic stop.

I have seen a lot of this Lt. Columbo gambit lately, (in fact I have the driver's case on appeal right now!). Keep this case in mind if you are dealing with this type of state's argument.

[Update: the state did not file a petition for review in this case and the mandate issued on June 1, 2006].

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