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 January 27, 2017)(unpublished), reversing Sedgwick County convictions of possession of marijuana with intent to distribute, possession of drug paraphernalia, unlawful acts involving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.]
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