The Archives (1996 and Prior Cases)

Written & Compiled by Mike Gillespie - Former KLETC Legal Instructor
Arranged by John J. Knoll - December 7, 1999

Note: These cases were good law at the time this list was compiled. The list is maintained for historical purposes. Because the law changes all the time, some of these cases may no longer be good law. Check with your legal advisor before relying on any case in this archive.

I. Search & Seizure

a. Triggering Fourth Amendment Application
b. Abandoned Property
c. Curtilage, Open Fields, and Related Issues
d. Plain View
e. Consent Searches
f. Drug Cases
g. Canine Cases
h. Search Incident to Arrest
i. Inventory Searches
j. Traffic Stops
k. Stop & Frisk
l. Search Warrant Execution
m. Exceptions to the Exclusionary Rule

II Interrogation

I. Search & Seizure

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall be issued, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Fourth Amendment to the Bill of Rights of the Constitution or the United States of America.

a. Triggering Fourth Amendment Application

Has a search occurred warranting Fourth Amendment safeguards?

United States v. Jacobsen, 466 U.S. 109 (1984). Fourth Amendment protections did not apply when DEA agents searched a shipping container and found drugs. Federal Express employees opened the box after damaging it, found cocaine, and alerted the DEA. They then resealed the box. Agents arrived, searched the box, and found and field tested the cocaine. A controlled delivery and arrest followed. The U.S. Supreme Court applied the threshold test for determining whether a Fourth Amendment search has occurred: did the challenged activity involve government conduct and, if so, did the "search" intrude into an area in which someone had a reasonable expectation of privacy? It ruled that the DEA's warrantless search was valid because it followed a search by private persons who were not law enforcement officers or agents, and DEA personnel searched no further than their predecessors. The field test also did not violate the Fourth Amendment because it was not a search;the test simply detected the presence of narcotics and did not violate any reasonable expectation of privacy, as no such expectation exists in illegal substances.

State v. Windes, 13 Kan. App. 2d 577 (1989). As in Jacobsen, Fourth Amendment protections did not apply when officers opened a package, found cocaine, made a controlled delivery and arrest, and reopened the package without a warrant. Package addressed to Windes in Overland Park, Kansas, was received by Federal Express in Florida. Express employees, believing the box fit "drug profile" criteria, opened it and found cocaine. They alerted Florida authorities who alerted Overland Park Police. OPPD officers picked up the package at KCI Airport; opened it in Overland Park; and resealed it and sent it to the local Fed-Ex office where an undercover officer delivered it to Windes. Officers stopped Windes in his car, arrested him, and searched the box. The Kansas Court of Appeals applied a Jacobsen analysis and approved the police conduct.

New Jersey v. T.L.O., 469 U.S. 325, ___ S.Ct. ___, ___ L.Ed.2d ___ (1985). School officials can conduct warrantless searches of students and their lockers based on reasonable grounds of wrongdoing rather than probable cause. The need for discipline in a school setting justifies a less onerous standard.

Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). Highway sobriety checkpoints operated by uniformed officers pursuant to standard guidelines do not violate the Fourth Amendment.

Delaware v. Prouse, 440 U.S. 648 (1979) & United States v. Galindo-Gonzales, 142 F.3d 1217 (10th Cir. 1988). Use of roadblocks to check for driver's licenses and vehicle registrations are permissible.

b. Abandoned Property

Trash Searches California v. Greenwood, 486 U.S. 35 (1988). Police regularly searched garbage left at a curbside for evidence of drug trafficking. Searches did not violate the Fourth Amendment. Defendant had no reasonable expectation of privacy in rubbish left for pick up; society is not prepared to recognize a reasonable expectation of privacy in such garbage. It is common knowledge that garbage left at or near the street is readily accessible to "children, animals, scavengers, and snoops," and trash collectors.

c. Curtilage, Open Fields, and Related Issues

United States v. Dunn, 480 U.S. 294 (1987). DEA agents did not violate the Fourth Amendment when they entered defendant's property, ignored "No Trespassing" signs, climbed two fences surrounding a barn a short distance from a ranch house, and shined flashlights into the barn revealing a drug lab. Defendant claimed the activity violated the Fourth Amendment because the agents penetrated the ranch house curtilage, a constitutionally-protected area, without a warrant. The U.S. Supreme Court established four factors to determine whether an area is curtilage: its proximity to a home; whether the area is included in an enclosure surrounding the home; the nature of the uses to which the area is put; and protective measures taken to protect the area from sight by passersby. The Court said the barn, 180 feet from the house, was too far away; no fence surrounded the house and the barn; the barn was not being used for activities intimately associated with the house, instead, it was housing a drug lab; and, finally, the fence surrounding the barn was a stock fence, designed to keep animals in, not people out. (The case is properly analyzed as an "open fields" case, and open fields do not enjoy Fourth Amendment protection. Hester v. U.S., 265 U.S. 57 [1924] and Oliver v. U.S., 466 U.S. 170 [1984]).

Statev. Basurto, 15 Kan. App. 2d 264 (1991) (affirmed 249 Kan. 584 [1991]). Police legally searched a shed without a warrant while executing a search warrant on a nearby house. The warrant described the house but did not expressly authorize searching the curtilage. When officers noticed the shed, they examined it and saw inside what they thought was cocaine. The defendant's wife consented to a search of the shed but refused to sign a written consent form; the defendant signed a form and the officers conducted the search. The defendant claimed his consent was invalid (the Court strongly suggested, without actually holding, that the consent was probably invalid once the wife refused to sign the form) and claimed officers exceeded the scope of the warrant when they searched the shed. The Court cited Dunn, confirmed that curtilage is constitutionally protected, declared the shed within the curtilage, and ruled that whenever police execute a warrant for residence "premises," that warrant authorizes a search of the curtilage even when curtilage is not expressly included or described in the warrant.

State v. Tinsley, 16 Kan. App. 2d 287 (1991). The Kansas Court of Appeals expressly adopted the Dunn curtilage test and the Open Fields Doctrine in this case and approved the search of a marijuana field. Officers went to Tinsley's house to discuss a drug investigation concerning another person. They heard noise inside, but since Tinsley's doors were padlocked on the outside, they began looking around the premises for him. A path led from several buildings behind the house to an open field; officers walked to the field and saw "numerous marijuana plants growing." They obtained a search warrant before making a complete search. The Court applied the Dunn factors and ruled that the field was an open field. First, the area defendant claimed was curtilage was not included in an enclosure surrounding the home. No evidence was presented concerning the use to which defendant put the buildings. Although the area could not be seen from the open road, Tinsley took no steps to block the view of persons who might walk down the path, and the marijuana could easily be seen from the field. Finally, although the Court said the area was within about 70 feet of the house, and thus it "could be said to be in close proximity to the house," the other Dunn factors outweighed the "closeness."

State v. Waldshmidt, 12 Kan. App. 2d 284 (1987) (review denied Sept. 9, 1987). Officer unconstitutionally searched defendant's yard when he climbed a six-foot fence surrounding it to gain a view of the yard, looked over the fence, illuminated the area with a flashlight, and saw marijuana plants. Officer did the same thing a month later and relied on his observations to obtain a search warrant. The Court applied the Dunn factors and determined the yard was within protected curtilage. It was close to the defendant's residence and shielded by the high fence, which shielded the area from the view of passersby. The yard was of the type used for intimate family activities. The Court also rejected the state's argument that the officer's action was no less intrusive than the "fly-over" searches approved by the U.S. Supreme Court in California v. Ciraolo, 476 U.S. 207 (1986). Ciraolo searches are physically non-intrusive; the search here was physically intrusive because the officer climbed the fence, placed his arm and flashlight over it and looked over.

State v. Fuqua, (unpublished opinion, Kansas Ct. App. No. 66,524, 8-21-92). Kansas Court of Appeals logically concluded that one can't have curtilage without a residence. Officers entered land owned by Fuqua's parents, and adjacent land, several times over a four-month period, and observed marijuana and other evidence of cultivation and processing. Fuqua occasionally stayed in a camper near the marijuana operation. Officers obtained and executed a search warrant, seized evidence and arrested Fuqua. He claimed the area officers explored to gain evidence for their search warrant affidavit was close enough to the camper to constitute protected curtilage and that the warrantless intrusions violated the Fourth Amendment. The Court held that in proper circumstances, a camper could be a home; here, evidence suggested it was not. Fuqua gave a different address on many occasions, including during his booking. The meager amount of food found in the camper;a partial loaf of bread, some bologna, and several cans of beer, suggested Fuqua lived elsewhere. Since the camper was not a residence, and curtilage is the "area surrounding a residence," the area close to the camper could not have been curtilage.

d. Plain View

Horton v. California, 110 S. Ct. 2301 (1990). The U.S. Supreme Court abandoned the traditional requirement that sightings of "plain view" objects must be "inadvertent." Officers investigating a robbery knew the suspects wore ski masks and carried an Uzi and a stun gun, and searched a suspect's residence pursuant to a search warrant describing the items to be seized as cash and coins. They found and seized an Uzi, stun gun, and other evidence not described in the warrant. The Court held that the first two prongs of the plain view test were met;officers were lawfully present in the house by virtue of the warrant, and the items were immediately incriminating; and acknowledged that the officers might have expected to find the items the warrant failed to describe. The Court upheld the search by abandoning the inadvertent sighting rule. (To date, Kansas appellate courts have not followed Horton, presumably because they have not been faced with the issue. These court traditionally rule that the scope of the Fourth Amendment, as interpreted by the U.S. Supreme Court, is the scope of Kansas state constitutional protections; thus, Kansas may adopt Horton in the future).

California v. Acevedo, 111 S. Ct. 1982 (1991). Officers legally searched a vehicle and a container located inside it without a warrant, even though their probable cause was limited to the container. Federal Express intercepted a package containing marijuana, alerted officers, and a controlled delivery followed. Suspects took the container to a home; a short time later, a suspect left the house and threw the container in the trash. Officers obtained a warrant; several persons visited the house and one was searched after he left. Marijuana was found in his knapsack. Acevedo arrived, went inside, stayed 10 minutes, and emerged with a paper package, about the size of a marijuana package, that he put in his trunk. Police stopped him and seized the marijuana. The Court rejected its traditional rule, established in Arkansas v. Sanders, that allowed police, when they had probable cause that a container placed in a vehicle contained contraband, to search until they found it, but prohibited them from then opening it without a warrant. Now police may search for such a container, remove it, and search it without a warrant. (Traditionally, Kansas has followed Sanders; to date, Kansas appellate courts have not adopted Acevedo. But Kansas courts traditionally rule that the scope of the Fourth Amendment, as interpreted by the U.S. Supreme Court, controls Kansas state constitutional safeguards, so Kansas courts may adopt Acevedo in the future).

e. Consent Searches

Florida v. Jimeno, 111 S. Ct. 1801 (1991). The U.S. Supreme Court reminds us that the scope of consent controls the scope of a consent search. Officer overheard Jimeno on a public phone discussing what he thought was an impending drug transaction. Jimeno got in his car, and the officer followed and stopped him for a traffic violation. He told Jimeno the reason for the stop and that he thought Jimeno was carrying drugs. He then told defendant that he wanted to search the car; that Jimeno didn't have to consent to such a search; but that he'd like his consent to "search the car." Jimeno said he had nothing to hide and consented. The trial court suppressed cocaine found in a paper sack on the floorboard because, it said, a consent to search for drugs does not extend to sealed containers within the general area consented to. The Supreme Court reversed, affirmed the rule that the scope of consent controls the scope of consent searches, and established an "objective reasonableness standard" for determining the scope of consent. The Court held that it was reasonable for the officer to consider that a suspect's general consent to search a car included consent to search a bag inside it: Jimeno knew drugs were sought and the officer wanted to look for drugs in the car, so it was objectively reasonable for the officer to think that consent to search the car included containers that could hold drugs. (The Court warned that a reasonable person might not think that a general consent covers breaking into locked briefcases in a trunk).

State v. Ratley, 16 Kan. App. 2d 589 (1992). Officers may rely on consent received from a person who does not have actual authority to consent when the facts available to officers would warrant a person of reasonable caution to believe the person had such authority. (See also Illinois v. Rodriguez, 110 S. Ct. 2793 [1990] for the same rule). Also, a "non-occupying spouse" can give consent to search a residence she and her husband shared if she retains common authority over it, or a sufficient relationship to it. Factors to consider when determining if common authority or a sufficient relationship exist are the non-occupying spouse's retention of keys; the non-occupying spouse's access to the property; changed locks; the length of time the non-occupying spouse is away from the premises; whether the non-occupying spouse left personal property on the premises; and the reason for the non-occupying spouse's departure.

f. Drug Cases

State v. Nelson, 249 Kan. 689 (1991). Police allowed a suspect they had just arrested for sale of cocaine to complete a delivery of cocaine that she arranged prior to her arrest. Trial court held that the procedure amounted to outrageous police conduct, a Due Process violation, and entrapment, and dismissed the complaint. The Kansas Supreme Court reversed and remanded. The police did not instigate the delivery to Nelson. Nor did they direct or control the criminal activity involved in the case. Finally, evidence demonstrated that Nelson was predisposed to commit the crime, so the entrapment defense was unavailable. (The defense of outrageous police conduct is cognizable, however, when governmental participation in the criminal enterprise reaches an intolerable level).

State v. Hill, 16 Kan. App. 2d 280 (1992). When cocaine residue is found on an item of drug paraphernalia, suspect may be charged with and convicted of possession of cocaine and possession of drug paraphernalia. The offenses are distinct crimes. Any amount of a controlled substance is sufficient proof to sustain a conviction; it does not matter that the amount was not usable or measurable.

State v. Northrup, 16 Kan. App. 2d 443 (1992). Circumstantial evidence may be used to prove identity of controlled substance; scientific tests, while probative, are not required. So, defendant could be convicted of possession and sale of marijuana despite inability to produce the marijuana or scientific test results in court. Prosecution can rely on evidence of the substance's appearance; evidence that a high price was paid for the substance; evidence that the transaction was shrouded with secrecy or deviousness; and evidence that defendant or others in his presence referred to the substance by the name of the illegal narcotic.

State v. Barker, 252 Kan. 949 (1993). A "sniff" by a trained narcotics detection dog can constitute probable cause when evidence is presented indicating the dog's training; its successful previous detections of controlled substances; and its handler's training and ability to interpret the animal's alert. So, a trained canine's detection of narcotics located inside a vehicle can supply the requisite probable cause for a search of the vehicle.

U.S. v. Sukiz-Grado, 22 F.3d 1006 (10th Cir. 1994). A drug dog's alert outside a vehicle provide probable cause for a search of the vehicle. Thus, the outside alert justified the dog's entrance into the car to sniff further.

State v. Rios, 19 Kan. App. 2d 350 (1994). Proof that suspect had control over the places or things in which illegal drugs were found is essential to establishing possession; prosecution must also prove that requisite control was with knowledge, and that suspect had the intent to possess. These elements may be proven circumstantially, but mere presence of suspect where drugs are found is insufficient. Prosecution can supplement proof of presence, however, with evidence linking suspect to drugs, such as past participation in drug dealing; past drug convictions; proximity to the location where illegal drugs were found; and the fact that drugs were found in plain sight.

State v. Chapman, 252 Kan. 606 (1993). Defendant charged with aiding and abetting the possession of methamphetamine could be prosecuted in any county he and his principals passed through while in possession of the substance; it was not necessary to prosecute him in the county where the principal offense occurred. Critical to the Court's decision were the facts that defendant knowingly aided the principals; he shared with them the ultimate criminal intent to commit the principal crime; and he had a continuing interest in the success of the operation. Also important was the fact that narcotics trafficking is a continuing and transitory offense.

g. Canine Cases

United States v. Place, 462 U.S. 696, 706-07 (1983). A canine "sniff" is not a search in the constitutional sense because it does not intrude into an area in which there exists a reasonable expectation of privacy, and discloses nothing more than whether contraband is present. (Of course, an intrusion into an area to facilitate a dog sniff may violate the Fourth Amendment).

State v. Barker, 252 Kan. 949 (1993). A "sniff" by a trained narcotics detection dog can constitute probable cause when evidence is presented indicating the dog's training; its successful previous detections of controlled substances; and its handler's training and ability to interpret the animal's alert. So, a trained canine's detection of narcotics located inside a vehicle can supply the requisite probable cause for a search of the vehicle.

U.S. v. Stone, 866 F.2d 359 (10th Cir. 1989). A drug dog's detection of drugs located in an automobile provides the probable cause necessary to conduct a warrantless search of the vehicle under the automobile exception to the search warrant requirement.

U.S. v. Ludwig, 10 F.3d 1523 (10th Cir. 1993). Officers did not conduct a search for Fourth Amendment purposes when they walked through a motel parking lot, which was open to the public, allowing their narcotics detection dog to smell cars as they walked. Moreover, even when made without probable cause, reasonable suspicion, or any suspicion at all, random "walk-throughs" of public areas, and areas open to the public, do not violate the Fourth Amendment because there exists no reasonable expectation of privacy in such areas.

State v. Daly, 14 Kan. App. 2d 310 (1990), review denied, 246 Kan. 769 (1990). Critical privacy and possessory interests, and thus Fourth Amendment concerns, are not implicated when travelers surrender control of their luggage to a common carrier. In such situations, probable cause or reasonable suspicion are not necessary to establish before subjecting the luggage to canine sniffs while the luggage is in the carrier's possession.

United States v. Morales-Zamora, 914 F.2d 200 (10th Cir. 1990). Officers do not need individualized reasonable suspicion of illegal drug-related activity before having a dog sniff the exterior of a vehicle they have lawfully stopped. Critical in this case were the facts that the stop occurred in a public place, the sniff did not inconvenience the occupants in any way, and the sniffs did not embarrass them. The court also stated that "...when the odor of narcotics escapes from the interior of a vehicle, society does not recognize a reasonable privacy interest in the public airspace containing the incriminating odor."

U.S. v. Sukiz-Grado, 22 F.3d 1006 (10th Cir. 1994). A drug dog's alert outside a vehicle provide probable cause for a search of the vehicle. Thus, the outside alert justified the dog's entrance into the car to sniff further.

U.S. v. Gault, 92 F.3d 990 (10th Cir. 1996). There is no reasonable expectation of privacy in the air surrounding an object. Thus, a "sniff" of that air does not violate the Fourth Amendment when police have lawful access to the object.

h. Search Incident to Arrest

State v. Anderson, 259 Kan. 16 (1996). Following a lawful, custodial arrest, K.S.A. 22-2501 allows a warrantless search of an arrestee and the area and objects within his immediate control for any of these purposes: (1) to protect the officer from attack; (2) to prevent escape; and (3) to discover the fruits, instrumentalities, or evidence of the crime for which the arrestee was arrested. Such searches must be supported by articulable facts justifying the officer's actions and aligning the search with one or more of the purposes set forth in K.S.A. 22-2501. So, an arrest for a traffic warrant (e.g., failure to appear for a speeding violation) does not necessarily justify a search incident of the arrestee's vehicle; rather, the search must be related to the charge for which the person is arrested, or supported by one of the other two justifications K.S.A. 22-2501 prescribes.

Maryland v. Buie, 110 S. Ct. 1093 (1990). Police making a lawful arrest inside premises may conduct a "protective sweep" of the premises upon reasonable suspicion that there may be danger. The sweep is limited to those areas where a suspect may hide. Contraband or evidence found in plain view are, of course, subject to the plain view exception.

State v. VanWey, 18 Kan. App. 2d 260 (1993). A search of a vehicle incident to arrest is justified only when the vehicle is reasonably related to the offense, or the arrestee occupied it at the time of, or shortly before, the arrest. So, police could not lawfully search a vehicle located 25 feet from suspect arrested for battery and criminal trespass, when he last occupied it 20 minutes before. The vehicle's relationship to the crimes (if any existed at all) was too remote to justify the search.

i. Inventory Searches

State v. Webber, 918 P.2d 609 (Kan. 1996). Officers may conduct a warrantless inventory of personal belongings in an arrestee's possession at the time of their arrest. So, officers could inventory arrestee's purse when she removed it from her lap and placed it on a chair as she rose to be handcuffed.

State v. Copridge, 918 P.2d 1247 (Kan. 1996). Officers may take custody of those personal belongings an arrestee has in possession at the time of arrest, and store them for safekeeping. In such circumstances, the arrestee has no reasonable expectation of privacy in the belongings and they may be inventoried. A "second look" is also permissible in these situations; officers may, after conducting an initial inventory, examine personal belongings again, as long as they are still in police custody. So, physical evidence obtained from such a "second look" is admissible.

j. Traffic Stops

State v. Hopper, 917 P.2d 872 (Kan. 1996). A law enforcement officer may stop a vehicle when there exists reasonable suspicion that the driver has committed, is committing, or is about to commit a crime (including a traffic violation).

State v. Vistuba, 251 Kan. 821 (1992). An officer stopped a vehicle for erratic driving; the driving pattern did not constitute a violation, and the officer admitted she did not have reasonable suspicion. She justified the stop on her belief that the driver might be falling asleep, and she wanted to find out why he was driving erratically. Despite the lack of reasonable suspicion, the Kansas Supreme Court recognized that officers can legally make stops in such "safety stop" situations; the Court held that a criminal or civil infraction is not always needed to justify a vehicle stop;rather, safety reasons alone may supply the justification when those reasons are based on specific and articulable facts. The Court emphasized that in the non-safety stop context, only reasonable suspicion is required for a valid traffic stop, thus reiterating that the popular notion that probable cause is required is erroneous.

State v. Field, 252 Kan. 657 (1993). Although weaving within his own lane of traffic was not a traffic violation, that driving pattern, coupled with officer's training and experience that suggested such driving pattern in early morning hours was often indicative of driver's impairment, gave officer reason to stop vehicle and check driver to ensure he was all right. So, subsequent field sobriety tests and arrest of driver for DUI were not suppressable as fruits of an illegal stop.

State v. Tucker, 19 Kan. App. 2d 920 (1994). An anonymous tip can provide a reasonable basis for a traditional Terry stop or a Vistuba-Field-type safety stop. The totality of the circumstances controls; if the tipster provides sufficient detail to indicate her tip is based on first-hand knowledge, and those details are confirmed through independent police corroboration, the reasonable basis may be established. Also, an immediate threat to the public; such as a detailed report of a drunken driver; may make up for a weakness in corroboration. However, to justify a Terry or safety stop based on an anonymous tip, lack of immediate public danger demands strong showings of tipster reliability and independent police corroboration.

Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769 (1996). A traffic stop is legal as long as a legal reason exists to make the stop. The officer's motivation is irrelevant. So, officers may stop a vehicle as long as they have a legal reason to do so, even if the true motivation is not to enforce traffic laws, but rather to try and investigate other suspicions.

State v. Guy, 242 Kan. 840 (1988). Police may lawfully stop a vehicle, even if their reason for the stop is to develop probable cause to search the vehicle when no probable cause for such a search exists at the time of the stop. The critical question is whether a legal reason existed to stop the vehicle; the underlying motive for the stop does not affect its legality.

State v. Campbell, 19 Kan. App. 2d 778 (1994). Troopers stopped defendant's "rental vehicle" to check his compliance with motor carrier laws. They found no violations, but asked defendant if he was carrying drugs, weapons, contraband, or large amounts of cash; defendant, who was merely moving personal belongings, admitted he was transporting guns and allowed the troopers, when asked, their serial numbers. The troopers found marijuana and drug paraphernalia in the vehicle. The Court ruled that the stop, and thus the ensuing search, were illegal‚ random, unchecked stops of rental vehicles to determine whether their operation conforms with motor carrier laws and regulations are unconstitutional. While it may be legal to stop such vehicles to for such purposes, officers may not do so in the absence of established neutral criteria or guidelines governing officer discretion. The troopers exceeded the scope of the stop when they questioned the defendant after finding no violations. (This case should not be interpreted as banning, drug interdiction. The Court noted that evidence was conflicting concerning whether the troopers told defendant he was free to go; moreover, it did not address the issue of consent. Had the defendant not been free to go, his consent would have been tainted, but the Court, again, did not reach that issue).

Ohio v. Robinette, 117 S.Ct. 417 (1996). Officer stopped suspect for speeding, obtained his driver's license, and had him step outside his car. Officer returned the license and issued a verbal warning, then‚ without telling suspect he was free to go‚ asked him if he was carrying illegal drugs. The officer then asked for, and was granted, consent to search the vehicle. Suspect argued for suppression of resulting evidence on the grounds that he was not told he was free to go before the officer sought his consent to search. The Court ruled that the voluntariness of the consent‚p;not whether the suspect was told he was free to go‚ determines its validity. Thus, officers need not advise suspects they are free to go before seeking consent; they must be prepared, however, to demonstrate the voluntariness of any consent given.

k. Stop and Frisk

State v. Nugent, 15 Kan. App. 2d 554 (1991). Use of a shotgun and handcuffs did not transform a Terry stop, requiring only reasonable suspicion, into an arrest requiring probable cause because their use was reasonable under the circumstances. Officer had reasonable suspicion that suspect committed aggravated robbery and might be armed. Protecting himself with a shotgun, the officer handcuffed the suspect. The Court of Appeals ruled that the use of weapons and restraints on a Terry stop won't always transform it into an arrest; rather, facts and circumstances may make their use reasonable. Officer can take steps he reasonably believes are necessary to protect himself while he briefly detains suspects.

State v. Burks, 15 Kan. App. 2d 87 (1990) (review denied 248 Kan. 997 [1991]). Police may order passengers from stopped vehicles when they have reasonable suspicion as to the passengers. Facts that passenger riding with well-groomed driver in July had long hair, was wearing a heavy coat, had a bag on his lap and was wearing a "goony-looking hat" did not give rise to reasonable suspicion. Thus, officer could not order him from the car and frisk him.

State v. Damm, 246 Kan. 220 (1990). Officer exceeded the scope of traffic stop when she compelled passengers, for whom she had not developed reasonable suspicion, to produce their drivers' licenses and then ran computer checks on the licenses. Checks revealed a passenger was wanted on a warrant; passenger was arrested and a search incident to arrest revealed drugs. The Court held that the search was illegal because it was tainted by the illegal scope of the stop.

Minnesota v. Dickerson, 113 S. Ct. 2130 (1993). In this case, the U.S. Supreme Court agrees that an officer illegally seized drugs from a suspect, but extends the Stop & Frisk Doctrine to certain nonthreatening contraband. During a Terry stop, the officer frisked the suspect and felt a "lump" beneath his jacket. After examining the lump with his fingers, the officer decided it was crack cocaine, removed it, and arrested the suspect. The Court ruled that during a lawful Terry stop, officers may seize nonthreatening contraband if their feeling of the object gives them probable cause to believe it is contraband. But officers must stay within the limits of Terry; the feel must be limited to a pat-down, and officers may not subject the item to any further examination. A nonthreatening item may be seized only if, via this pat-down, the item's incriminating nature is readily apparent. Here, the officer exceeded a pat-down by examining the object with his fingers.

State v. McKeown, 249 Kan. 506, 509, 819 P.2d 644 (1991). An officer who does not have reasonable suspicion to justify a Terry stop may, however, approach an individual on the street for investigative purposes.... The officer can ask the individual's name and request identification but cannot force the individual to answer. The individual is free to leave.

State v. Marks, 226 Kan. 704, 710, 602 P.2d 1344 (1979). An officer's request for identification of an individual in a parked car was not a stop or detention; the police officer had the right to approach the defendant in the car.

Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1863, 75 L.Ed.2d 903 (1983) (Brennan, J., concurring): "In sum, under the Fourth Amendment, police officers with reasonable suspicion that an individual has committed or is about to commit a crime may detain that individual, using some force if necessary, for the purpose of asking investigative questions. They may ask their questions in a way calculated to obtain an answer. But they may not compel an answer, and they must allow the person to leave after a reasonably brief period of time unless the information they have acquired during the encounter has given them probable cause sufficient to justify an arrest. Because of the number of devices with "substantial coercive impact" available to police officers, few people will ever feel free not to cooperate fully with the police by answering their questions. Nonetheless, a refusal to answer furnishes no basis for an arrest, but may alert the officer to the need for continued observation.

State v. Latimer, 9 Kan.App.2d 728, 687 P.2d 648 (1984). Suspect's act of lying to a police officer about his identity sufficiently impeded the course of the investigation and hindered Officer Lane in carrying out his duties, and thus constituted obstruction in violation of K.S.A. 21-3808.

l. Search Warrant Execution

State v. Horn, 15 Kan. App. 2d 365 (rev. denied 248 Kan. 998 [1991]). Police obtained a search warrant authorizing search of premises and "all persons present." Officers announced their presence, heard "scurrying" inside, broke down a door and saw people running to the rear of the house. Money and drugs were in plain view. Horn was caught, a search of his person produced cash, and he was convicted of attempted possession of cocaine. Insofar as the warrant authorized searching all persons present, it was unconstitutionally general because the affidavit did not reflect that drug trafficking was the sole activity of the house; thus, police could not rely on the warrant to search Horn. But the search was lawful under the exigent circumstances exception to the warrant requirement. K.S.A. 22-2509 authorizes the search of persons present during execution of search warrants to prevent the disposal/concealment of anything described in the warrant; this warrant described drugs; police had probable cause the occupants had drugs; and exigent circumstances justified the search. First, officers were executing a valid warrant; the occupants of the premises fled when police announced their presence; and money and paraphernalia were in plain view. These facts and facts supporting the search warrant affidavit indicated that the premises housed past and present trafficking activity, and that the persons present were traffickers. Thus, the Court said, the circumstances justified officers in believing that the fleeing persons could have drugs: "Given that drugs are easily concealed and easily disposed of, the police had reasonable cause after entering the residence to search everyone running toward the back of the house."

State v. Vandiver, 19 Kan. App. 2d 786 (1994). Officer entered premises pursuant to a narcotics search warrant. After making an immediate arrest, he found six persons playing video games near a bag of marijuana; he also smelled burnt marijuana. Officer patted down the persons and found a 35mm film canister in defendant's pants pocket. Despite admitting that it did not resemble a weapon, the officer removed and opened the canister to see what it was; he found marijuana inside and arrested defendant. The Court ruled that the canister search was illegal; it was not justified by a warrant; defendant's mere presence near the marijuana did not establish probable cause to support an arrest for possession, so the search could not be justified as incident to arrest. Moreover, without probable cause, K.S.A. 22-2509(b), the statutory authorization to search persons present at the scene of a search warrant execution when probable cause and exigent circumstances, such as the need to prevent evidence from destruction, exists‚ could not justify the canister search. Even had probable cause existed, no exigent circumstances were present; unlike Horn, no evidence supported the notion that evidence might be destroyed‚ no one fled, or attempted to flee, the premises, and no one tried to conceal or destroy anything. To justify a search under K.S.A. 22-2509(b), there must be probable cause and some observable circumstances, such as someone fleeing from police, or an individual acting in a suspicious or furtive manner, in addition to reasonable police determinations that evidence will be destroyed or concealed before a warrant can be obtained.

State v. Tyler, 251 Kan. 616 (1992). In a case involving the killing of an undercover narcotics officer during a raid, the defense claimed that officers used excessive force when they executed their search warrant because they failed to "knock and announce" their identity and purpose. The Court noted that federal statutory provisions subject federal officers to knock and announce requirements, but those provisions don't apply to state officers. It ruled that Kansas has not adopted a knock and announce rule, and that, in this case, the officers' failure to knock and announce before entering the raided premises was reasonable. Only one officer was in uniform, but the others were dressed in raid regalia and other clothing clearly identifying them as officers as they entered. They also announced, again as they entered, who they were and their purpose for being there. The officers also knew a bodyguard, who carried a hammer, would be at the front door and that one person who had been previously seen at the raided premises was known to carry a gun. The Court stated, in conclusion, "Law enforcement officers, especially in narcotics cases, must weigh several factors when deciding how to execute a search warrant. For example, delay could possibly lead to the destruction of evidence and increase the danger to the officers. In this case, based upon the information available to the police prior to the execution of the search warrant, we find the search was reasonable..."

m. Exceptions to the Exclusionary Rule

Segura v. United States, 468 U.S. 796 (1984). Officers entered premises without a warrant to investigate a drug case. Facts developed by officers prior to entry would have constituted probable cause sufficient to obtain a search warrant. After entering and seeing evidence, officers obtained a warrant based only on the information they developed before entering. Evidence seized with the warrant was admissible because, although the initial entry was illegal, the evidence was obtained via an independent source; the search warrant based on information developed before the initial entry.

State v. Hemme, 15 Kan. App. 2d 198 (1991) (rev. denied 248 Kan. 998 (1991), cert. denied, 112 S. Ct. 191 [1991]). Evidence seized pursuant to search warrant was admissible despite affidavit's failure to establish informant's credibility. Informant said she saw drugs and drug paraphernalia in Hemme's bedroom and a box containing baggies elsewhere in the house. She also said she bought cocaine, and witnessed others buy it there, knew that Hemme was a big drug source, and that many people owed him money. The search warrant affidavit included this information, but none establishing the informant's credibility. Nor did police conduct an independent investigation which, had it developed sufficient facts, could have corroborated the informant's information and established probable cause. But evidence seized during the otherwise improper search was admissible under the Good Faith Exception because the affidavit did not contain false information; the issuing magistrate did not abandon his neutral and detached role; specificity was not lacking; and the indicia of probable cause was not so lacking that it would have been unreasonable for an officer to rely on the warrant.

II. Interrogation

Remember: Custody + Interrogation = Miranda

Stansbury v. California, 114 S. Ct. 1526 (1994). The objective circumstances of an interrogation control the "custody" question. Generally, an officer's subjective beliefs about the nature of an interrogation have no bearing on the determination of whether a suspect is in custody for Miranda purposes. But those beliefs become a factor, not in itself determinative to the custody question, if communicated to the suspect. The fact that an investigation has focused on the interviewee does not mean that Miranda warnings are required; but if an officer communicates that fact to the interviewee, it may become a factor in the custody element of the Miranda "equation."

State v. Fritschen, 247 Kan. 592 (1990). Miranda warnings are not required simply because a criminal investigation has focused on the suspect being interviewed. Rather, warnings are required only if a suspect is in custody and police intend to interrogate him.

State v. Reimann, 19 Kan. App. 2d 431 (1994). For Miranda purposes, only direct questioning or its functional equivalent (conduct that an officer knows, or should know, is reasonably likely to lead to an incriminating response) constitute interrogation. While trying to convince suspect not to kill himself, officer who asked suspect "What happened?" and similar questions was not interrogating, for Miranda purposes. Suspect's incriminating responses were admissible, despite lack of warnings.

State v. Morris, 255 Kan. 946 (1994). Following the U.S. Supreme Court's lead in Davis v. U.S., 114 S. Ct. 2350 (1994), the Kansas Supreme Court overruled State v. Ninci, 19 Kan. App. 2d 192 (1994) (review denied, Ks. Supreme Ct. No. 69,467, March 15, 1994), holding that police interrogators do not have a constitutional duty to cease questioning and ask clarifying questions to ascertain whether a suspect's ambiguous reference to counsel is actually an invocation of his right to counsel. Kansas officers may, but no longer are required to, cease questioning and seek clarification.

Minnick v. Mississippi, 111 S. Ct. 486 (1990). A suspect who invokes her Fifth Amendment (Miranda) right to counsel cannot be interrogated unless, and until, her attorney is present, or she reinitiates discussions about the case with police.

State v. Johnson, 255 Kan. 140 (1994). A suspect who invokes his Sixth Amendment right to counsel cannot be interrogated unless, and until, his attorney is present or he reinitiates discussions about the case with police. Suspect who invoked his Sixth Amendment right, but later called an officer, expressed his desire to tell his version of the story, waived Miranda, and gave a statement, cannot complain that his Sixth Amendment rights were violated. His post-reinitiation statement was admissible.

State v. Wacker, 253 Kan. 664 (1993), and State v. William, 248 Kan. 389 (1991). A confession preceded by Miranda warnings and a Miranda waiver may still be inadmissible as involuntary. Confession must be shown, in the totality of the circumstances surrounding it, to be voluntary.

State v. Montano, 18 Kan. App. 2d 502 (1993). While K.S.A. 75-4351 requires police to provide an interpreter, prior to custodial interrogation, to a suspect whose primary language is not English, it does not require provision of interpreters prior to seeking consent to search. But, prosecution must demonstrate that consent was given voluntarily, freely, and understandingly.

State v. Nguyen, 251 Kan. 69 (1992). K.S.A. 75-4351 et. seq. requires police to provide an interpreter for a suspect, whose primary language is not English, prior to custodial interrogation. If a custodial statement is taken in violation of this rule, it is admissible if it is shown that the statement was given voluntarily, freely, and understandingly.

State v. Matson, 921 P.2d 790 (Kan. 1996). A suspect who declines to discuss selected issues during custodial interrogation, but speaks about others, has not exercised his right to remain silent. He has merely refused to answer questions concerning that particular area.

In the Matter of B.M.B. 264 Kan. 417, 955 P.2d 1302 (1998). In custodial interrogation situations, juveniles under the age of 14 must be given the opportunity to consult with their parent, guardian, or attorney as to whether they will waive their rights to an attorney and against incrimination. Both the parent and juvenile shall be advised of the juvenile's rights to an attorney and to remain silent. Absent such a warning and consultation, a statement or confession cannot be used against the juvenile at a subsequent hearing or trial.

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