Friday, February 17, 2017

Improper search during car stop requires suppression

Rick Kittel and KU law student, Ashley Stites, won in State v. Miles, No. 114,544 (Kan. App. January 27, 2017)(unpublished), reversing Sedgwick County convictions of possession of marijuana with intent to distribute, possession of drug paraphernalia, unlawful acts involving proceeds derived from violations of drug laws, and failing to maintain a single lane of traffic.

A police officer was parked in the median of I-35 conducting highway interdiction. A car passed the officer and, although the officer saw no traffic infractions, he saw the driver of the car (later identified as Mr. Miles) duck down in his car. Finding this to be suspicious, the officer entered the highway and followed the car. The officer saw what he believed to be a traffic infraction and stopped Mr. Miles’ car. He approached the passenger side of the car and talked to Mr. Miles through the window while shining a flashlight into the car. The officer could smell air freshener, could see a bottle of cologne in the console, and saw what he thought might be “marijuana crumbs” on the passenger seat of the car. Based on these factors and other observations (the car was a rental), the officer wanted to search the car but needed to wait until backup arrived. While waiting for backup the officer checked Mr. Miles’ driver’s license for warrants and found none. The officer then went back to Mr. Miles’ car, asked him to get out, and showed him the alleged marijuana crumbs. The officer then told Mr. Miles to stand at the rear of his car, and then the officer said, “I’m gonna pick that little chunk up right there and look at it. Okay?” He then reached into the car and picked up a crumb, manipulated it between his fingers so that it flaked away into the air, and said it was “hard to tell” what the substance was. The crumb of suspected marijuana was not preserved for evidence. The officer then asked Mr. Miles if he could search the car “to make sure that that’s not weed that I’m looking at.” Audio from a body cam indicated that Mr. Miles made an unintelligible statement followed by, “yeah, sure.” Backup arrived a couple minutes later and the officers searched the car, finding $220 cash in the console, marijuana, empty plastic baggies, and a digital scale with marijuana residue on it.

On appeal, Mr. Miles reasserted the search and seizure issues raised in the district court. The COA rejected his first claim and found that there was reasonable suspicion supporting the stop of the  car for a traffic infraction.

Next, Mr. Miles claimed that the officer lacked probable cause to search the car. After rejecting certain evidence as providing probable cause under the automobile exception to the warrant requirement (the smell of air freshener, the bottle of cologne, the car rental agreement), the COA considered whether the observation of suspected marijuana crumbs provided probable cause. The COA, examining the plain view exception to the warrant requirement as the district court had done, found the search was not justified under that exception:

[T]he incriminating nature of the alleged marijuana crumbs on the passenger seat of Miles’ car were never immediately apparent even after the officer viewed and manipulated the alleged marijuana.

The COA also found that Mr. Miles had given no valid consent to the search of his car because the taint of the initial illegal search of the car (reaching into the car and picking up the suspected marijuana crumb) was not dissipated:

The officer then went into Miles’ car without consent or probable cause and retrieved the alleged marijuana crumb from the passenger seat. The officer told Miles that he could not tell whether the object was marijuana. The officer let that alleged piece of marijuana crumble between his fingers. Immediately afterwards the officer asked for Miles’ consent to search the entire car. The officer did not tell Miles that he was free to go nor did the officer physically disengage with Miles. As a result, the taint was never dissipated. Thus, based on the totality of the circumstances, and with special consideration given to the officer’s previous conduct in entering Miles’ car without consent, Miles’ purported consent was not without coercion or duress.

The convictions were reversed with an order that the motion to suppress be granted.

[Update: the state did not file a PR and the mandate was issued on March 10, 2017.]

Wednesday, February 01, 2017

Illegal detention of passenger not sufficiently attenuated to support legal consent to search

Carol Longenecker Schmidt and I won in State v. Cleverly, No. 111,282 (Kan. December 23, 2016), obtaining reversal of a Butler County drug conviction. The KSC rejected the COA's assertion that a passenger's encounter was voluntary because of the driver's actions:

[W]e pause to address the Court of Appeals' newly minted holding that, because a passenger is seized for Fourth Amendment purposes during a traffic stop, "it follows that the passenger's presence becomes voluntary or consensual once the driver gives consent or voluntarily remains on the scene after the traffic stop concludes." . Syllogistically, the panel reached a faulty conclusion. An individual's Fourth Amendment rights are personal. The driver's waiver of his own Fourth Amendment rights by consenting to a voluntary encounter and consensual vehicle search cannot, as a matter of law, be deemed a waiver of the passenger's personal Fourth Amendment rights. If Cleverly's continued presence at the scene of the investigatory detention had transformed into a voluntary encounter, the change must have been based on Cleverly's own individual acts and personal circumstances.

The KSC went on to reject the state's argument that the circumstances had transformed into a voluntary encounter: 

After the permissible length of time for the traffic stop had expired, i.e., when Cleverly should have been free from police detention, an officer told him to exit the vehicle, conducted a pat-down search of his person without asking for permission, and directed him to stand in front of the patrol car. The district court and Court of Appeals appeared to discount the importance of the initial, illegal pat-down search because it did not produce any incriminating evidence. But it is important here as an objective indicator to a rational person that his or her actions are still under police control, both verbally and physically. A reasonable and prudent person's assessment of the voluntary nature of an encounter with a police officer would be informed by the involuntary manner in which it commenced. An officer who tells a person to exit a vehicle, puts hands on that person without consent, and directs the person to stand in front of the patrol car has not signaled to that person that he or she is totally free to disregard the officer's questions, decline the officer's requests, or otherwise terminate the encounter. Those detention indicators are not trumped by congenial conversation during the prolonged encounter.

After reviewing all of the circumstances, the KSC held that Mr. Cleverly was unlawfully seized. The KSC also rejected the COA's conclusion that any unlawful detention was sufficiently attenuated from later consent to search to render the later search legal:

The record does not definitively establish the length of time between the pat-down search and the cigarette package search. The Court of Appeals suggested that the absence of evidence of that time period was the defendant's fault for not including the patrol car video in the record on appeal.  Of course, as we have stated, it is the State's burden to prove the lawfulness of the search and that burden would include establishing an attenuation from the state actor's unlawful conduct. Nevertheless, the principal disconnect in the panel's analysis is that no time elapsed between the illegality and the acquisition of evidence. When Officer Humig searched the cigarette package, he was unlawfully detaining Cleverly and had been doing so continuously since the unlawful pat-down search.

Because any consent was obtain during an illegal detention, it was fruit of the poisonous tree. The KSC reversed and remanded.