Improper pat-down

Christina Waugh won in State v. Carson, No. 97,185 (Kan. App. Feb. 22, 2008)(unpublished), reversing a Lyon County drug conviction on Fourth Amendment grounds. Although the COA rejected claims regarding an improper car stop, improperly extended stop, and involuntary search of the vehicle, the COA held that the officer lacked reasonable suspicion to conduct a pat-down:

In Carson's case, it is undisputed that the stop took place in warm weather,which meant that Carson was not wearing bulky clothing which could have concealed a weapon. In fact, Deputy Fell testified that the did not notice any bulge or other indication that Carson was carrying a weapon. Rather, his request for a pat-down was just a "procedure" that Deputy Fell established for himself. When questioned, Deputy Fell admitted that there was no particular reason for the pat-down search. The district court asked, "Was there anything that went on out there that night that made you fear for your safety?" Deputy Fell responded, "No, sir, other than officers getting shot." When a follow up question was asked, Deputy Fell asserted that his personal safety was "always at risk."

The evidence presented at the suppression hearing clearly indicates that Deputy Fell had no reasonable suspicion that Carson was armed. Rather, it appears that Deputy Fell's customary habit was to perform the pat-down search regardless of the circumstances. Without the officer testifying that in this particular instance, he feared for his safety the search was unlawful.

Because the evidence used to prosecute was obtained during the unlawful search, the COA held the motion to suppress should have been granted and reversed the conviction.

[Update: the state did not file a PR and the mandate issued on March 27, 2008.]