Reasonable people don't ignore cops' questions

Jacquelyn E. Rokusek won in State v. Mueller, No. 106,389 (Kan. App. July 27, 2012)(unpublished), affirming Judge Martin's suppression order in a Douglas County DUI prosecution.  The COA majority summarized the case as follows:

The Douglas County District Court concluded that a highway patrol trooper had violated this rule when he pulled his marked patrol car into a private driveway where another driver had pulled in and stopped his car. The officer had effectively detained the driver without cause, and the district court suppressed evidence developed after the stop that the driver had been under the influence of alcohol.

The State has appealed, arguing that nothing more than a legal, voluntary encounter took place between the officer and the driver—after all, an officer may approach us and ask questions in public places, and we may respond or not respond as we wish.But the test for a voluntary encounter is that the person feels free to leave or to decline to answer questions. Here, the officer had sped up on a mostly deserted street shortly after 2 a.m. to close the distance between his car and the driver's, and then he had followed the car onto a residential street and into a driveway. The officer then approached the car on foot while shining a flashlight on the driver and his passenger. And the officer immediately adopted an accusatory tone, not one that gave any indication that the driver was free to ignore the officer.

The COA majority analyzed these circumstances and concluded that the state had not proved that a reasonable person would feel free to leave:

Here, the officer briefly used his emergency lights to run a red light and drove at an increased rate of speed to catch up with Mueller (though we don't know whether Mueller saw the emergency lights). The officer followed Mueller through a left turn down a residential street that appeared to have no other traffic after 2 a.m. A reasonable person in Mueller's position is likely to perceive that the officer was following him and that a stop was about to happen. The officer followed Mueller into the driveway. When the officer approached, he didn't ask permission to ask questions, didn't ask about Mueller's welfare, and didn't communicate that Mueller was free to leave or to refuse to answer. The officer's tone was accusatory—“Live here?” followed, when Mueller said no, by a scolding, “No, you don't. No, you don't .” This accusatory tone continued when Mueller and his passenger said they were turning around, to which the officer skeptically replied that Mueller had turned his car off.

Officers are trained—for understandable reasons—to take control of a situation in a way that commands compliance. Based on our view of the videotape of this encounter, the officer's actions commanded compliance here. Nothing about the officer's conduct conveyed that Mueller was free to leave or to not respond to his questions—which is required for us to find a voluntary encounter. Further, the surrounding circumstances were intimidating enough that a reasonable person in Mueller's position wouldn't have felt free to back out of the driveway or ignore the officer once the officer approached the car. Although the State argues that Mueller “could have rolled up his window and ignored [the officer],” we can't imagine a reasonable person feeling free to do so.

I'm always amazed by courts that suggest the opposite--that a reasonable person would simply blow off an officer's orders or directions.  And I'm also frequently puzzled that prosecutors and law enforecement officers (and courts) would want to encourage suspects to have a big gray area where they might decide not to cooperate with officers.

[Update: the state did not file a PR and the mandate issued on Aug. 9, 2012.]