Call for backup matters

Carl Folsom won in State v. Thomas, No. 98,123 (Kan. Jan. 21, 2011), reversing a Geary County possession conviction on Fourth Amendment grounds. After a brief encounter with Ms. Thomas appeared to be over, an officer asked if he could ask her a few more questions, resulting in an extended encounter, which included calling for back up. The state's main argument was that the extended encounter at issue was voluntary and, therefore, that the Fourth Amendment not implicated. The KSC reviewed caselaw acknowledging that, by itself, law enforcement going up to someone and asking questions does not turn a voluntary encounter into an investigatory detention. But the KSC also held that the facts in this case went beyond simple asking questions. In particular, the KSC held that calling for backup would have a similar effect to the presence of more than one officer--although it did not by itself transform an encounter, it was a very relevant factor in this case:

We conclude that Officer Brown's call for back-up, when combined with his other conduct, would convey to a reasonable person that he or she was not free to refuse to answer Brown's questions or otherwise terminate the second stage of the encounter. More specifically, both before and after making the call, Brown repeatedly asked Thomas questions about her drug use and possession. After the call, Thomas emptied her pockets for him, apparently in an attempt to prove her denials. He then asked to feel inside her pockets, and she threw her hands in the air. After Brown again told Thomas to "be honest with me," she confessed to possessing two crack pipes. In contrast to the first stage, at no time during the second stage did Brown tell Thomas she was free to leave.

The KSC went on to hold that the officer did not have reasonable suspicion to detain Ms. Thomas and, therefore concluded that the motion to suppress should have been granted.

This a nice example of how, even when an officer asks "Can I ask you just a couple more questions?" (i.e. the Lt. Columbo gambit), it does not necessarily make the resulting encounter voluntary. The circumstances of the resulting encounter still determine that question.