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.
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