The COA recognized that a recent SCOTUS decision has been cited as impacting the correctness of Smith:The [Smith] court then concluded: “[W]e continue to adhere to our longstanding rule that consensual searches during the period of a detention for a traffic stop are invalid under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights.”
Accordingly, the Smith court held the trial court had correctly ruled that the request and subsequent search of Smith exceeded the scope of Smith's detention. So too at bar. [The officer's] Wambold's initial questions to Heath concerned the accident. This did not exceed the scope of the traffic stop. But [the officer] “quickly discern[ed]” that Heath had not been in the car at the time of the accident and had not witnessed the accident. Yet, [the officer] continued to question Heath and asked to search because he thought Heath had used illegal drugs. As in Smith, the requests and searches here had nothing to do with the purpose of the stop. The searches of Heath, both the pat-down and the shoe search, exceeded the scope of the detention.
The facts in [Arizona v. Johnson, 129 S.Ct. 781 (2009)] are too dissimilar to the present case to provide us with much guidance on when an encounter becomes consensual. Accordingly, we are more comfortable relying on our Supreme Court's guidance in Smith.Additionally, even if Johnson does affect the correctness of Smith with regard to the Fourth Amendment interpretation, Smith also explictly relied upon the Kansas Constitution. Although the KSC has often held that the constitutional provisions are coextensive, until the KSC says the state constitutional law analysis in Smith is overruled, it is still good law.
[Update: the state did not file a PR and the mandate issued on May 7, 2009].
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