Saturday, February 03, 2007

Fourth Amendment win

Rick Kittel won in State v. Bastian, No. 95,651 (Kan. App. Feb. 2, 2007), reversing a Butler County possession conviction on Fourth Amendment grounds. This case was an appeal after a trial on stipulated facts. Apparently the state argued that the suppression issue was not preserved, but the COA held that the contemporaneous objection rule did not apply where the trial judge was the same judge that heard and decided the motion and where there was no additional evidence. The COA agreed with the state that the officer had reasonable suspicion to initially detain because a house-sitter called police and reported that an unknown person had parked a pickup truck under the deck of the house. The COA also upheld a paraphernalia conviction stemming from a syringe found in the pickup found during a search of the pickup. But the COA held that the officer's order that Mr. Bastian empty his pockets exceeded a proper pat-down search, violating the Fourth Amendment:

When Stewart saw the unspent cartridge in the pickup, he had a reasonable suspicion that Bastian was armed. During an investigative detention, if an officer reasonably suspects that personal safety requires it, the officer may frisk the seized person for firearms or other dangerous weapons. K.S.A. 22-2402(2). However, Bastian had already been patted down by Ball, "a capable and competent officer," when Bastian first got out of the pickup. Further, the pat-down frisk for weapons authorized by K.S.A. 22-2402 is not the same as a search inside a suspect's pockets. . . . When Stewart directed Bastian to empty his pockets in anticipation of a second pat-down search, Stewart violated Bastian's Fourth Amendment rights. He had no probable cause to search Bastian's person beyond a pat-down frisk to search for weapons.
This is a nice decision, both on the procedural ruling and the merits.

Here is the coverage on

[Update: the state did not file a PR in Bastian and the mandate issues on March 8, 2007].

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