Friday, April 27, 2007

Maybe it's not still America?

JoAn M. Lindfors and Pamela S. Sullivan of the Salina PDs office won in State v. Lee, No. 95,348 (Kan. April 27, 2007), affirming Judge Hebert's suppression ruling. Officers received word of a person acting sort of strangely in a city part and while investigating sought to pat him down, eventually uncovering drugs. Judge Hebert had suppressed the evidence stating that:
This is still America, and I don't think the fact that somebody is allegedly acting strange or, quote, looked out of place in a park, waives that person's rights as a citizen. The officers ascertained his identity and his business and that was all they had a right or responsibility to do at this point.

But the KSC disagreed with Judge Hebert and held that the encounter between police and Mr. Lee was a consensual encounter and, therefore, the resultant consent to pat-down for weapons did not implicate the Fourth Amendment. One interesting part of that decision in relation to some recent Lt. Columbo cases is that the KSC explicitly relied on Mr. Lee's subjective belief regarding whether he felt free to leave (he testified that he did feel free to go about his business).

The KSC did hold, however, that the scope of the consent was a search for weapons and that after conducting that pat-down and feeling an indeterminate object, the nature of the object was outside the scope of consent and not immediately apparent and, therefore, not subject to the "plain feel" doctrine. So the KSC ultimately upheld the suppression order.

Here is the coverage on

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