Friday, October 09, 2009

Officers exceeded scope of search for safety purposes

Washburn student intern Sean Whittmore and I won in State v. Vicki Johnson, No. 100,728 (Kan. App. Oct. 9, 2009), reversing a Sedgwick County drug conviction. Officers responded to a report of a possible burglary, but quickly learned the the woman involved was the tenant's girlfriend, who was there with permission. Officers proceeded to search Ms. Johnson, including her purse and a cigarette package in her purse for officer safety
The question for us is whether, once Officer Tucker had seized the cigarette package and thereby removed the package from the defendant's possession, Officer Tucker still had sufficient officer safety concerns under Terry to justify his search of the cigarette package and purse. Decisions from other jurisdictions indicate that "[g]enerally, once a purse is no longer in its owner's possession, a protective search of the purse is not justified pursuant to Terry."
The COA concludes that, in these circumstances, although a safety search was barely justified at its inception, the officer exceeded the scope of a permissible safety search:
Here, by the time of the search and seizure, this defendant had offered Officer Tucker a plausible innocent explanation for her presence at the apartment, which was verified by the landlord. Tucker's concerns were raised when the defendant retrieved the cigarette package after Tucker told the defendant not to reach in her purse. Tucker cited his previous experience with individuals who would hide razors in cigarette packages. However, such individuals were involved in drugs and prostitution, neither of which Tucker connected with this defendant. This leads us to the conclusion Tucker's search of the cigarette package was an impermissible warrantless search.
As a result, the majority reverses and orders suppression.

[Here is coverage at]

[Update: the state filed a PR on November 9, 2009.]

[Further update: the KSC granted the state's PR and Ms. Johnson's cross-PR on July 1, 2010. The case will likely be argued late Fall 2010.]

[Further update: the KSC affirmed the COA on March 2, 2012.  Here is blog coverage.]

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