Monday, November 29, 2010

Cannot "routinely" pat down without articulable safety concern

Michael Redmon won in State v. White, 103,472 (Kan. App. Nov. 12, 2010), reversing a Wyandotte County drug prosecution based on a Fourth Amendment violation. The COA held that an officer had improperly extended a traffic stop and then considered the validity of a pat down (where an officer found incriminating evidence):

White argues that the officer-safety pat-down, sometimes called a frisk, was an illegal search and all the evidence found as a result of that search should have been suppressed. Specifically, White argues that James had no reasonable suspicion that White was armed and dangerous or that James' safety or the safety of others might have been in jeopardy.

The State maintains again that the encounter was consensual and, therefore, a Terry analysis is unnecessary. As discussed above, however, the State failed to prove the encounter became voluntary. The State further argues that "the officers, by their testimony demonstrated that they were acting as reasonably prudent men in the circumstances" when James conducted the pat-down.

To restate the pertinent facts, James arrived on the scene without being dispatched and saw Bell talking to White. White then stepped out of his car and walked toward James, who was standing near the rear bumper of White's car. White appeared to be cooperating fully with the investigation. At that point, James performed the pat-down.

James did not engage in any conversation with White before performing the pat-down, nor did he recognize White from a previous encounter. When asked why he performed the pat-down, James testified, "It's officer safety. That's just what I've done since I started out here. Just make sure nobody has weapons on them when I'm talking to them." James did not provide any further explanation for the pat-down. During cross-examination, James acknowledged that he "routinely" performs a pat-down in every traffic stop where a person is asked to step out of the car.

. . . .

We recognize that law enforcement officers have dangerous jobs, and traffic stops are especially perilous. As a result, officers must be allowed to take reasonable steps to protect their safety and the safety of others. Courts will uphold a pat-down for officer safety as long as the officer articulates any reasonable suspicion that the officer's personal safety requires it. But a law enforcement officer cannot "routinely" perform a pat-down every time the officer personally encounters a citizen and expect the courts to sanction such a blatant constitutional violation.

The COA shows how easy it is for law enforcement to both extend a stop and conduct a pat down under existing law. But the COA properly says if law enforcement doesn't even take those easy and basic steps, it constitutes a "blatant constitutional violation."

[Update: the state did not file a PR and the mandate issued on December 20, 2010.]

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