The COA noted that the state had not argued that the officer had reasonable suspicion, but only that the encounter had become voluntary, which did not require reasonable suspicion. The COA applied the well-defined test whether at the time the detention purportedly terminated, a reasonable person in the defednant's position would have felt free to disregard the police and go about his or her business. The COA found the answer easy:
When Yotter left the detention room, she had been informed that it was a crime for her to remain inside [the store] and that the law enforcement officer would escort her out of the store. A reasonable person in those circumstances would perceive that she could not disregard [the officer] and resume shopping . . . or otherwise go about her business at that time and in that place. . . . . In order to characterize Yotter's interaction with [the officer] in the hallway outside the detntion room as a voluntary encounter, one must ignore the totality of the circumstances and suspend all rational thought. We are not prepared to do so.
Heather Cessna won in State v. Oetken, Appeal No. 95,505 (Kan. App. Feb. 16, 2007) (unpublished), reversing a Barton County possession conviction. This is another Lt. Columbo gambit case. See here for previous blogging on this subject. A truck was stopped for no tag light and Ms. Oetken, the driver, was ordered out while the officer conducted a license check. After confirming that none of the truck's occupants had any outstanding warrants, the officer returned the licence to Ms. Oetken and told her she was free to go. As she walked back to the truck, the officer "asked her if she had a couple of seconds [so] that [he] could spike with her." She agreed and circumstances led to a search of the truck uncovering drugs. Again, the test is whether a reasonable person would feel free to leave:
After receiving an all clear from dispatch, the officer gave Oetken the licenses back and told her she was free to go. The officer then questioned Oetken again, this time between two vehicles. Chapman was still in the truck during all this time. [The passenger] was still in the truck during all this time. The State has not established that [the passenter] ever heard the conversations between Oetken and the officer or that he was otherwise informed the occupants of the car were free to leave. With no break in time, the officer then proceeded to the passenter side of the truck and asked [the passenger] if he could talk to him. On these facts, we must conclude that , a reasonable passenger and owner of the stopped vehicle would not have felt free to leave.[Update: the state did not file a PR in Yotter and the mandate isued on March 22, 2007]
[Update: the state filed a PR in Oetken on February 28, 2007]
[Further update: the KSC denied the state's PR in Oetken on May 8, 2007]