Just because you don't absolutely have to doesn't mean you shouldn't

Washburn student intern Star Jones and I won in State v. Branstetter, No. 98,884 (Kan. App. Jan. 23, 2009), reversing some Sedgwick County drug convictions on Fourth Amendment grounds. The case involved whether state proved the legality of an impoundment search. The state argued that the search was performed pursuant to a police "policy" and, in any case, that under a recent KSC case, officers did not have to seek alternatives to impoundment by the driver/owner. The COA disagreed, holding (1) that the state failed to provide evidence of the actual policy and (2) that the failure to inquire into alternatives to impoundment, although not dispositive, was still part of the totality of circumstances to be considered:

The totality of the circumstances here—i.e., the vehicle was not "unattended," illegally parked, or obstructing traffic—does not permit us to disregard the officer's failure to consider permitting the passenger to drive, to consult Branstetter, or to attempt to contact the registered owner regarding disposition.

Essentially, the State seeks to rely upon an unwritten and unproduced "policy" as carte blanche authority permitting the State to impound a vehicle when the registered owner is not present and the operator is arrested. The State would implement this policy without regard to (1) the wishes of the operator or the owner; (2) whether a passenger may be present to attend to the vehicle; and (3) whether the vehicle presents a safety or traffic hazard. The State's rationale would eviscerate the "reasonable grounds" test established in Fortune and the "totality of the circumstances" analysis espoused by Teeter.

The COA also held that the record supported a claim that the inventory search in this case was pretextual, bolstering its conclusion on the Fourth Amendment issue.

[Update: the state filed a PR on February 23, 2009.]

[Further update: the KSC denied the PR and the mandate issued on September 14, 2009.]