Tuesday, January 25, 2011

No safety concerns

Washburn student intern Joshua Mikkelsen and I won in State v. List, No. 102,851 (Kan. App. Dec. 23, 2010)(unpublished), reversing a Johnson County drug conviction. The COA agreed that law enforcement officers violated the Fourth Amendment when they detained Ms. List:
The officers decided to approach List and McDowell because it appeared to the officers that the two were arguing. Kearney testified that the purpose of the stop was to “make sure that all parties involved were safe and that everything was okay” and “that there was no crime that was occurring at the time.” The justification for the stop was limited to making sure List and McDowell were safe and presumably to prevent the verbal argument from escalating into a physical altercation. From the record, it appears that any argument between List and McDowell was over when the officers made contact. In fact, Kearney testified that when he made contact with List, he believed the argument was over. Further, McDowell had walked away from the vehicle and was already 50 feet away from List. Both parties appeared to be safe, and the officers had no indication that List and McDowell were going to continue arguing or physically harm each other. After establishing that both were safe, the scope of the public safety stop was finished. Neither the initial request for documentation proving List's identity nor the follow-up request for documentation proving List possessed a license to drive were necessary to effectuate the purpose of the stop.

Based on the facts presented and the applicable law, we find Kearney's request to List for identifying documentation exceeded the scope of the safety stop and thus violated List's constitutional rights.

Another in a series of cases where appellate courts hold tight on "safety" stops.

[Update: the state filed a PR on January 24, 2011.]

[Further update: the KSC denied the state's PR and the mandate issued on March 1, 2011.]

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