Saturday, July 15, 2017

Dog sniff improperly extended pretextual stop

Clayton J. Perkins won in State v. Lewis, No. 115,285 (Kan. App. June 16, 2017), obtaining reversal and remand in a Sedgwick County possession prosecution. The case stemmed from a pretextual car stop and a dog sniff of the car during the stop. Mr. Lewis argued thaqt the officers unreasonably prolonged the stop to facilitate the dog sniff and that once the officers searched the location where the dog hit finding nothing, they did not have probable cause to search the rest of the car. The COA rejected the state's claim that officers had reasonable suspicion to extend the traffic stop, citing problems with a uncorroborated confidential informant's tip. The COA also noted that the district court, in contractiction to the state's argument, found that the dog sniff occurred after the car stop was completed: 

The State has attempted to alter the trial court's finding that the traffic investigation had been completed when Deputy Powell and PSD Riggs arrived. The State contends that Officer Kampling and Lieutenant Mears were still waiting to hear back from "the on-call person" about the nature of Lewis' federal parole status when Deputy Powell and PSD Riggs arrived. It is true that in its order, the trial court found that Officer Kampling had called "the on-call person" to understand the nature of Lewis' federal parole, but Officer Kampling never heard back from the on-call person. Despite making this finding, however, the trial court still concluded that Officer Kampling had completed the traffic investigation when Deputy Powell and PSD Riggs arrived. This clearly means that the trial court did not deem a response from the on-call person about Lewis' federal parole status necessary to complete the traffic investigation. Additionally, this conclusion is grounded in law as the elements of a routine traffic stop include only a request for an individual's license and registration, running a computer check, and issuing the citation.

To repeat, it is clear that the trial court determined that Officer Kampling's traffic investigation had been completed when the K-9 unit arrived.

The COA went on to hold that this finding was supported by substantial competent evidence and, therefore, that the stop had been extended without reasonable suspicion. The COA clarified that making Mr. Lewis get out of the car to facilitate safely conducting the dog sniff was improperly prolonging the stop:

Here, Officer Kampling and Lieutenant Mears testified that after completing the warrants check and the ticket, they made Lewis exit his car so Deputy Powell and PSD Riggs would be safe during the dog sniff. Seemingly, if Officer Kampling and Lieutenant Mears wanted to have Lewis exit his car so Deputy Powell and PSD Riggs would be safe during the dog sniff, to comply with [Rodriguez v. United States, 125 S.Ct. 1609 (2015)], Officer Kampling and Lieutenant Mears 24 must have done so in a manner that did not add time to Lewis' traffic stop. For instance, Lieutenant Mears could have made Lewis exit his car while Officer Kampling was running a computer check and writing the ticket. Yet, this was not what happened. Therefore, under the United States Supreme Court's holding in Rodriguez, Officer Kampling and Lieutenant Mears' actions constituted a detour from the mission of the traffic stop that resulted in unreasonably prolonging the stop for the purpose of conducting the dog sniff. 

As a result, the COA reversed the conviction and the case was remanded with directions to grant the motion to suppress.

[Update: the state filed a petition for review on July 14, 2017.]

[Further update: the KSC denied the state's petition for review and the mandate issued on January 29, 2018.]

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