No physical disengagement when trooper is asking questions while leaning in car window

Michelle A. Davis won in State v. Luis Gonzalez, No. 119,212 (Kan. App. November 27, 2019), obtaining reversal and remand in a Coffey County possession with intent to distribute prosecution. An trooper stopped Mr. Gonzalez' car for going 78 mph in a 75 mph zone. After obtaining and confirming Mr. Gonzalez' license and insurance information, the trooper did a "Kansas two-step" telling the driver to have a nice day, but immediately asking additional questions. Although Mr. Gonzalez was in the process of leaving he stopped and answered the trooper, who had placed his hands on Mr. Gonzalez' car. The trooper continued to question Mr. Gonzalez about his travel plans and eventually asked for and received consent to search, resulting in the discovery of marijuana.

The primary question on appeal was whether the trooper had improperly extended the traffic stop. The COA conducted a detailed analysis of the circumstances and concluded that the troooper's actions did not constitute a consensual encounter:

Based on the particular facts presented here, we find reasonable persons would not have known they could refuse to answer questions and leave the scene. Specifically, the dash cam video reflects that Trooper Marten was leaning into the Escalade with his hands on the open passenger window of the Escalade at the same time he was asking if Gonzalez would be willing to answer more questions. Had Gonzalez continued to proceed forward and leave the scene instead of putting his foot on the brake and placing his vehicle in park, Gonzalez easily could have concluded that leaving the scene would physically injure Trooper Marten.

The COA recognized that failure to inform the driver that he or she could leave is not dispositive, but is still relevant. The COA held that the circumstances did not amount to "clear physical disengagement." The COA also held that while several coercive factors were not necessarily present, the circumstances still constituted a detention. Because the state did not show reasonable suspicion to extend the stop, the COA reversed and remanded with directions to suppress.

[Update: the state did not file a PR and the mandate issued on January 3, 2020.]