Thursday, June 15, 2006

But the drugs have to be somewhere!

Phillip White, my old Sedgwick County public defender colleague, won in State v. Anderson, No. 92,580 (Kan. June 9, 2006), reversing a Sedgwick County possession with intent to sell conviction on Fourth Amendment grounds. The KSC agreed with the state that officers had reasonable suspicion to extend a traffic stop to investigate a possible drug offense. But the KSC disagreed with a prior Tenth Circuit case and held that further detention violated the Fourth Amendment:

The State also asserts that the officers' reasonable suspicion ripened into probable cause to arrest Anderson after Golston was found to be holding drugs and arrested, the drug dog alerted, and the officers thoroughly searched the truck and found no additional drugs. The State wants us to conclude that additional drugs had to be somewhere and that the somewhere was on Anderson's person 30 to 40 feet away from the truck.

We are not willing to do so. Rather, we adopt the Court of Appeals' analysis of this issue. Not only did no probable cause to arrest Anderson for drugs develop when the unproductive search of the truck was completed; the justification for the Terry detention ended.

The KSC also held that Mr. Anderson's arrest was not justified because he was a conditional release violator:
Probable cause to believe a person is a conditional release violator does not permit the person's warrantless arrest.
The KSC reviewed the statutes and found that being a conditional release violator is not a crime itself and statutes authorizing arrest of conditional release violators require a written order.

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