Saturday, July 27, 2013

Hunt for evidence unrelated to detention not justified

Carl F.A. Maughan won in State v. Krehbiel, No. 108,782 (Kan. App. July 5, 2013)(unpublished), affirming Judge Rose's suppression order in a Reno County drug prosecution.  During execution of a search warrant, officers detained and searched Ms. Krehbiel.  The COA agreed with Judge Rose that the search of Ms. Krehbiel's person was unjustified:
Here, the stated purpose by Detective Skomal for detaining Krehbiel was for officer safety. She was not a subject of the search warrant and had done nothing while being detained to justify a further search of her person beyond the pat-down, which was done twice to ensure no weapons were on her person. After no weapons were found on her, without more, Krehbiel should have been free to go once the search of the residence had been completed. There is simply no evidence in the record to support a probable cause finding to justify searching Krehbiel's pockets. Instead, she was subjected to a search that “could serve no purpose except to open up a hunt for evidence unrelated to ... [Krehbiel's] detention.”
The COA also agreed that the state did not prove that Ms. Krehbiel voluntarily consented:
We hold the detective could not have obtained a voluntary consent considering the circumstances surrounding the search of Krehbiel's pockets: (1) She was not permitted to leave the residence until officers checked to see if she had an outstanding warrant, (2) two officers conducted a pat-down search of her outer clothing for weapons, (3) she was handcuffed during the pat-down and subsequent search of her pockets, (4) she did not exhibit any unusual behavior, and (5) the search took place in a small room where multiple officers were present. A reasonable person would not have felt free to decline the detective's request.
[Update: the state did not file a PR and the mandate issued on August 8, 2013.]

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