When you find the drugs, probably not a voluntary encounter anymore [NOT FINAL]

Tom Lemon won in State v. Schultz, No. 98,727 (Kan. App. March 14, 2008)(unpublished), affirming Judge Braun's suppression order in a Shawnee County drug prosecution. The district court denied suppression of evidence and statements made before discovery of a large amount of marijuana, but suppressed statements made after the discovery based on lack of Miranda warnings. The COA reviewed the highly factually intensive case and found that, although the encounter started as voluntary, the circumstances evolved into a situation where Mr. Shultz' statements were not voluntary:

We recognize the initial encounter was consensual, but the facts clearly show this intrusion into Schultz' domicile changed once the 900-gram bags of marijuana and the scales were found. That change was orchestrated by the officers who turned what had been an investigation into an interrogation of Schultz as a person believed by the officers to have a sufficiently large amount of drugs in his possession that would be sold or distributed.

The officers were skillfully coercive in utilizing the technique of relating all of the facts they could use to request a search warrant and leading Schultz to the conclusion that one would be granted. They never told Schultz that a search warrant could be obtained, but their conversation was designed to show that a judge would likely issue one. The change from a verbal consent to their desire to have Schultz sign a written consent shows that he was then being viewed differently by the officers.

The State argues the fact the female was told she could not leave must not be utilized to cause Schultz to believe that he could not leave because the female was a juvenile and subject to different circumstances. However, there is no question but that Schultz would have been affected by the limitations placed on his girlfriend. In addition, as the district court reasoned, where would Schultz want to go? He was in his own domicile and not in a vehicle where he could drive away or at a police station where he could terminate an encounter.

When all of the circumstances are considered, a reasonable person in Schultz' situation would not believe he was free to terminate the interview. We reach this conclusion despite the officers' calm demeanors and statements to Schultz that he could refuse their requests. It is also persuasive that the officers had indicated the premises would be secured if they were required to attempt to obtain a search warrant.

We hold that up to the point Officer Rhodd found the initial 900-gram bags of marijuana, all of the conversation that the officers had with Schultz was investigatory. We further hold that once Schultz was directed by the officers to have a seat at the dining room table, the officers effectively treated him as a suspect of the crime of selling or distributing marijuana, controlled his actions, and turned the investigation into an interrogation that resulted in Schultz being deprived of his freedom in a significant way that required Miranda warnings to have been given.

Sort of a reverse situation from the line of traffic stops that become voluntary encounter cases we have seen in Kansas and the Tenth Circuit.

[Update: the state filed a PR on April 11, 2008.]