Even the cop didn't fear for her safety

Washburn student intern Katie Whitsitt and I won in State v. Shaffer, No. 101,668 (Kan. App. June 11, 2010)(unpublished), reversing a Sedgwick County possession conviction. The case stemmed from a public safety stop after officers thought Ms. Shaffer walked across the street in an odd fashion. They continued to perceive Ms. Shaffer's behavior as odd and belligerent, and so they decided to handcuff her as they continued their interaction. And they decided to frisk her. The COA rejected the claim that the officers improperly handcuffed Ms. Shaffer, but held that, based on the officer's explicit testimony, once they had handcufffed her, the officer no longer had an reasonable safety concern and, therefore the frisk was illegal:

Shaffer's conduct would certainly lead a reasonable person at the outset to have a concern for his or her own safety, but that threat was neutralized by handcuffing her. Shaffer did not resist being handcuffed, and there is no evidence in the record that she continued to be belligerent once she was restrained. In fact, [the officer] testified that her concerns about her own safety disappeared at that point.

Because the officers did not articulate any reasonable suspicion that Ms. Shaffer was dangerous, the frisk was illegal and the evidence that stemmed from the frisk should have been suppressed.

[Update: the state did not file a PR and the mandate issued on July 15, 2010.]