No arrest, so no search incident

Jessica Glendening of the Johnson County Public Defender Office won in State v. Murphy, No. 99,058 (Kan. App. March 21, 2008)(unpublished), affirming Judge Anderson's suppression order in a Johnson County drug prosecution. The case turned on a detailed analysis of whether Mr. Murphy was arrested (allowing for a broader search incident to arrest) or merely detained (allowing a more limited Terry type of search):

Looking objectively at the facts, a reasonable person under the circumstances would not have believed an arrest had occurred. Sparks had not patted down Murphy, nor physically restrained him in any way. Instead, Sparks asked for permission to search, which would not have been necessary if Sparks believed he was performing a search incident to a lawful arrest. Given these facts, a reasonable person would not have believed Murphy was under arrest when Sparks started searching his car. In fact, if Sparks had found the intended object of his search, Murphy's identification, Sparks could have then written Murphy a citation and ended the investigatory detention. When one views all the circumstances, Murphy was not under arrest. These facts are more indicative of a routine traffic stop than an arrest.

Because Murphy was subject to an investigatory detention rather than an arrest, Sparks' search is circumscribed by the rules set forth in Terry. The case restricts an officer's search to a search for weapons in the defendant's immediate area only. An officer may not search for evidence during an investigative detention. Thus, Sparks'
search for evidence in a bag in the back seat of Murphy's car before placing him under arrest exceeds the scope of a Terry search. Sparks performed an illegal search, and the evidence discovered in the illegal search must be suppressed.

The COA avoided possible constitutional implications of the new search and seizure statute by noting that this search occurred before the effective date of the new statute.

[Update: the state filed a PR on April 21, 2008].

[Further update: the KSC denied the PR and the mandate issued on July 8, 2008].