Is that an RPG in your pocket or are you just glad to see me?

Rick Kittel won in State v. Wilson, No. 96,507 (Kan. App. June 15, 2007)(unpublished), reversing a Leavenworth County drug conviction. It is really one of the funniest reads in a case I've seen in a while. Police were checking Mr. Wilson's sister's apartment looking for a runaway who was Mr. Wilson's girlfriend. When officers approached the front door, back up officers saw Mr. Wilson leaving a back window, but he could not get down and ended up asking the officer for help. The officer put Mr. Wilson in handcuffs, escorted him to the front of the residence and patted him down. He did not find a weapon, but found some drugs. To put it mildly, the COA was skeptical of the state's purported jusification for the pat down:

[The officer] was not at [the apartment] to apprehend a violent criminal. [The officer] testified that Wilson was very cooperative throughout the encounter. [The officer] expressed no reason for suspecting Wilson had a weapon other than the following: "Just leaving the window, Judge." Rather than questioning Wilson regarding the whereabouts of [the runaway, the officer] asked Wilson if he had any drugs or weapons on his person. When the court inquired about this, [the officer] responded: "It's just procedure, Judge. As far as for officer safety, I always ask if they have drugs, weapons, hand grenades, RPG's [rocket-propelled grenades], items like that."

At the time of [the officer's] interrogation, the apparently meek and cooperative Wilson had his hands handcuffed behind his back. How Wilson presented a possible threat to [the officer's] safety remains a puzzle. In the unlikely event Wilson had secreted a rocket-propelled grenade on his person, we finding hard to believe he could have activated it to harm [the officer]. The purpose of the pat-down search authorized by Terry is to identify and remove weapons that may be used against the officer, not to search for evidence.

I guess Fort Leavenworth is in Leavenworth County. Maybe local law enforcement have to routinely deal with things like rocket-propelled grenades? A very funny opinion.

[Update: the state did not file a PR and the mandate issued on July 19, 2007].