He looks pretty alive to me

Washburn student intern Laurie Blanton and I won in State v. Shafer, No. 98,016 (Kan. App. Sept. 26, 2008)(unpublished), reversing a Saline County possession conviction. Officers were called to investigate Mr. Shafer who had been reported slumped over in his vehicle in a driveway. Officers woke up Mr. Shafer who indicated that he was fine and had merely locked himself out of his house and did not want to wake people during the night. Even though Mr. Shafer was clearly okay, police detained Mr. Shafer by taking his identification, eventually leading to a search in which officers say they find drugs. The state argued that the continuing encounter was consensual; the COA disagreed:

Even if we were to concede that Shafer was not "stopped" or "seized" at the outset of this encounter, there is no question that he must be considered "seized" when the officer requested and retained his drivers' license. Generally, an officer's retention of a defendant's documentation is significant because it indicates the defendant did not reasonably feel free to terminate the encounter. Therefore, when the driver has relinquished his license to an officer, the State cannot rely on the defendant's consent to justify further detention, questioning, or a search. We decline to anyalze this encounter as "consensual" after the officer requested and retained Shafer's license.

Because the officer's actions exceeded the very limited scope of a welfare check, the majority held that the officer violated the Fourth Amendment and reversed.

Judge Leben dissented from the Fourth Amendment ruling, but concurred with reversal and remand because the record did not include a valid waiver of Mr. Shafer's right to a jury trial.

[Update: the state filed a PR on October 24, 2008.]

[Further update: the KSC denied the state's PR and the mandate issued on April 10, 2009.]