Friday, April 15, 2011

Not a voluntary encounter

Rick Kittel and KU Defender Project intern Josh Berry won in State v. Hogan, No. 102,681 (Kan. App. April 15, 2011), obtaining a reversal of a Sedgwick County possession conviction based on an illegal search. The COA majority applied prior KSC precedent regarding voluntary encounters, but held, after a factually-intensive analysis, that the circumstances in this case did not prove a voluntary encounter:

Examining the totality of the circumstances, we are unable to conclude that Hogan freely, voluntarily, specifically, and without implied coercion, gave his consent to search the bag in the back seat. In addition to the equivocal nature of any consent by Hogan, many of the same factors considered in evaluating the detention must be considered here, including the presence of two uniformed and armed officers, the holding of Hogan behind the vehicle by Crowe as Robinson searched the back seat, the continuing activation of the overhead light bar, and the repeated questions from Robinson. Additionally, we note that Robinson utilized aggressive language after Hogan's protestation when he responded, "[Y]ou said I could search, correct?" We view that language as indicating that acquiescence to the officer's extended search was compulsory.

Examining the totality of the circumstances, we conclude that a reasonable person would not have felt free to leave upon Robinson's initial request to search the vehicle, and even if we were to conclude otherwise, any consensual encounter was transformed back to an illegal detention after Hogan objected to further search of his personal stuff. And finally, we are unable to conclude that Hogan's consent to search the black bag was voluntary after he protested to that search.

It's a good lesson that just because the KSC said that some police encounters can become voluntary encounters, these cases are factually intensive and the KSC precedent does not stand for the proposition that all police encounters are voluntary encounters.

[Update: the state filed a PR on May 16, 2011.]

[Further update: the KSC denied the PR and the mandate issued on March 13, 2012.]

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