Friday, December 07, 2012

Search exceeded scope of stop

Meryl Carver-Allmond won  in State v. Spagnola, No. 101,521 (Kan. Dec. 7, 2012), reversing a Shawnee County possession conviction.  The KSC first rejected the COA's rationale that Mr. Spagnola had failed to preserve this issue when he had repeatedly objected immediately before a bench trial before the same judge that heard the suppression hearing.  Under these circumstances, the KSC held that a party need not object again at the bench trial to preserve the issue.

On the merits, the KSC held that the stop and intial detention was lawful, but that the search exceeded the scope of that proper stop and detention:
Although the initial stop was predicated on a traffic violation, the detention continued less out of a concern about impaired driving and increasingly out of a concern about stolen property. The possible stolen property was in the backseat of Spagnola's car, not on his person. The only justification for the pocket search was for Jones' safety. 
Under the United States Constitution, Jones was allowed to conduct a pat-down search of Spagnola's clothing. In the course of an investigatory detention, a police officer may conduct a pat-down search for weapons that might pose a danger to the officer.  In order to justify a pat-down search of a driver or a passenger during a traffic stop, the police officer must harbor reasonable suspicion that the person subjected to the search is armed and dangerous.  A warrantless Terry stop is permissible under the Fourth Amendment because of its limited nature and because of the officer's narrow scope of authority.
There was no reason, however, for Jones to expand the pat-down search. Such a search exceeds the narrowly crafted exception that Terry created for the purpose of police protection. 
During a Terry stop, a police officer may conduct a pat-down search only when nothing in the initial stages of the encounter dispels his or her reasonable fear for his or her own or others' safety. In such an instance, the officer may conduct a "carefully limited search of the outer clothing" to determine whether the individual has weapons that might be used against the officer.
"In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects. Nor may the police seek to verify their suspicions by means that approach the conditions of arrest."  Florida v. Royer, 460 U.S. 491, 499, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). 
The protections of the Fourth Amendment are not diluted when legitimate law enforcement interests justify a warrantless search; the search must still be limited in scope to whatever is justified by the exception to the constitutional requirement of a warrant."[T]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." (Emphasis added.) Royer, 460 U.S. at 500.
The KSC also held that the circumstances of this case failed to show consent to search without coercion:
Spagnola was standing outside of his car in the presence of more than one police officer, one of whom had arrived as backup support. When Spagnola gave his second permission for the search, he was standing with his back to the officers, with his hands behind his back and his fingers interlaced. This was not a posture or an environment in which it can be said that consent was voluntarily given free from coercion.
As a result, the KSC reversed the conviction and ordered suppression.

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