Friday, June 08, 2007

No reason for frisk

Michelle Davis won in State v. Burton, No. 95,970 (Kan. App. June 8, 2007), reversing a Sedgwick County possession prosecution. The officer testified that he did always frisked stopped persons for his safety. The COA easily found that this violated the Fourth Amendment:

Burton argues that [the officer's] testimony indicates that he always pats down an individual for his safety. Thus, Burton maintains that [the officer's] conducted an impermissible general, cursory search for weapons. Burton cites Ybarra v. Illinois, 444 U.S. 85, 93-94, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979), for the proposition that "[n]othing in Terry can be understood to allow a generalized 'cursory search for weapons' [as the officers admittedly did in Ybarra's case] or, indeed, any search whatever for anything but weapons."

In conducting a Terry frisk, "the officer must have prior knowledge of facts or observe conduct of the person or receive responses to the limited interrogation authorized by [K.S.A. 22-2402(1)] which, in the light of his experience, would cause the officer to reasonably suspect that his personal safety requires such search." (Emphasis added.) [The officer] admittedly did not observe any conduct by Burton or the female that would have caused him to reasonably suspect a weapons frisk was necessary for his personal safety, and he had not yet conducted any limited interrogation of Burton concerning the disturbance.

To illustrate, near the scene of the reported disturbance, [the officer] saw Burton and a female walking just east of Broadway on Indianapolis. When [the officer] stopped them, he did not have any details about the disturbance or whether the disturbance involved any criminal activity. Moreover, the record of the dispatch indicated that the disturbance involved no injuries or weapons.
Although the trial court stated that the area of the disturbance was a high crime area, [the officer] failed to testify that the area was a high crime area. Significantly, the circumstances surrounding [the officer's] previous experience with Burton was not developed during the suppression hearing. An officer's previous encounter or experience with a suspect is often helpful in determining whether a frisk is necessary. For example, an officer's previous knowledge about a suspect may bring to light that the suspect is wanted for other offenses or that the suspect has a record for violence or a mental disorder. Nevertheless, [the officer] did not state that his prior experience with Burton caused him to suspect that Burton was armed and dangerous.

The state tried to argue that the inculpatory evidence was not actually found during the pat-down, but the COA held that because the officer asked Mr. Burton about drugs during the time of the illegal pat down, the drugs were fruit of the poisonous tree.

What a candid officer. I suspect this case is somewhat fact-specific, and the product of a poorly litigated suppression motion by the state, but still a nice case.

[Update: the state did not file a PR and the mandate issued on July 12, 2007].

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