Saturday, September 20, 2014

No reasonable suspicion that assault rifle in small bag

Douglas L. Adams won in State v. White, No. 109,118 (Kan. App. Aug. 29, 2014)(unpublished), obtaining a suppression order in a Geary County drug prosecution.  The COA held that the record supported a finding that an investigatory stop was justified, that it was not improperly prolonged by a canine sniff, and that officers articulated a basis for searching the truck for weapons.  But it went on to reject any claim of voluntary consent and hold that the officer exceeded the proper scope of that investigatory stop:
As we have stated, the police officers had probable cause to search the Ram for a loaded handgun which was illegal to have in the vehicle. An officer thought he had seen the handle of a weapon when White first opened the glove compartment. That probable cause was enhanced and also further defined once the officers found that the item actually was a magazine for an AK–47 assault type rifle that contained live ammunition.
The bag in which the cocaine in this case was found appears to be approximately 8″ by 6″ in size. Obviously, it could not contain an assault rifle. Perhaps it could possibly contain a very small handgun but that is not what the officers had probable cause to search for since the item that gave rise to that probable cause was indicative of a much larger weapon. Moreover, even if probable cause existed to search for a small handgun, once officers lifted and held the bag, it had to be obvious by its light weight and the fact it apparently did not contain any hard objects that there was no handgun inside of it.
The State argues the police officers were also searching for other ammunition and that allowed them to search the bag. However, ammunition was not the direct object of the search. The State cites us to no law that makes it illegal to possess ammunition separate and apart from a weapon or how such possession could lead to discovery of the item that is illegal, namely a loaded firearm. Officers already had the requisite probable cause to search for a loaded weapon in the vehicle. They simply had no justifiable need or reason to search any small container within the vehicle for more ammunition in order to determine whether White possessed a loaded firearm in violation of city ordinance.
As a result, the COA reversed and ordered suppression of the fruits of the illegal search.

[Update: the state did not file a PR and the mandate issued on October 2, 2014.]

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