Traffic Stops and Normal Incidents Thereto
| Citation | Vol. 79 No. 4 Pg. 31 |
| Pages | 31 |
| Publication year | 2010 |
By John J. Knoll, J.
I. Introduction
As pointed out in "Paradigm Shifts in Search and Suppression Law,"[1] recent court decisions have changed several areas of Fourth Amendment law. Perhaps the most significant change has been the growing body of law dealing with traffic stops and police officer activities incidental thereto.[2] While the U.S. Supreme Court's 2009 Arizona v. Gant[3] decision significantly altered the landscape of search of vehicles incident to arrest, Kansas courts have adopted more sweeping changes in the body of law defining when police can stop a car and what activities the Constitution permits thereafter.
Although the legal definition of a Fourth Amendment "seizure" depends upon whether a reasonable person would feel like they were free to leave, does that mean every car stop is an arrest because the driver is not free to go? The answer is a qualified no. The temporary detention of individuals during a car stop by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" and is subject to the constitutional imperative that it not be "unreasonable" under the circumstances.[4] Car stops usually involve a brief, limited detention based on a traffic infraction or misdemeanor committed in the officer's presence, and are generally governed by the law on Terry stops[5] rather than the more exacting probable cause required for an arrest or to obtain a search warrant. In order to be reasonable under the Fourth Amendment, the stop of a moving vehicle must be based on reasonable suspicion, sometimes called reasonable articulable suspicion, of criminal activity.[6] In some instances, however, police can stop a car even absent the suspicion required for a Terry stop. Kansas courts have allowed "community caretaking" or "safety stops" in situations where police express concerns that the driver appears to be sleepy or intoxicated, or where officers indicate a vehicle may have a mechanical problem making it unsafe for highway operation.[7]
Police-Citizen encounters in Kansas can be summarized as follows:[8]
Interaction Fourth Amendment Seizure Justification Required Scope Valuntary Police-Citizen Encouter No None Unlimited, as long as it remains voluntary. Valid Safety Stop Yes Reason to believe a driver might be sleepy or intoxicated, or his/her vehicle is incapable of safe operation. The time it takes to confirm or dispel the original reason for the stop, unless the officer develops reasonable suspicion of some other crime. Terry Stop Yes Reasonable Suspicion Brief, limited Seizure to confirm or dispel the office's suspicion. Arrest Yes Probable Cause Taking into Custody to answer for the commission of a crime.
II. Traffic Stops
A. Voluntary contacts
In some circumstances, a car "stop" may not be a stop at all, but instead a voluntary encounter for which no constitutional justification is required. Although an officer may be responding to a call of "suspicious activity," as long as the officer does not involuntarily detain[9] persons or engage in excessive shows of authority, the encounter may be deemed "voluntary" and not restricted by the Fourth Amendment. For example, in State v. McGinnis,[10] an officer responded to a report that a possibly stolen car was partially submerged in the Missouri River, near the mouth of Independence Creek. The officer drove to the area and saw a car pull into a driveway used by fishermen to park near the creek. The officer stopped two or three car lengths behind the vehicle, did not turn on his emergency lights, and approached the driver (McGinnis), who was now standing near the creek looking back at the car. While walking past the car, the officer saw a 12-pack of beer in the front seat, and upon making contact with McGinnis, noticed an odor of an alcoholic beverage and other usual indicators of driving under the influence. In the prosecution of McGinnis for felony driving under the influence and transporting an open container, the Kansas Court of Appeals affirmed denial of a motion to suppress, agreeing that the initial contact between the officer and McGinnis was voluntary.[11]
B. Limited purpose stops
Sometimes police stop cars for eleemosynary purposes — due to a concern for the driver's safety or the safety of other members of the motoring public who might be damaged or injured by a defective vehicle, for example. It is when these stops transform into a detention that constitutional problems arise. Kansas courts have steadfastly refused to allow community caretaking or safety stops to be transformed into some other kind of detention absent reasonable suspicion of criminal activity. Such stops are very limited in scope and duration. For example, in State v. Gonzales,[12] a trooper stopped a vehicle because the fuel tank door was open and it had a "bouncy tire. However, rather than checking the tire immediately after the stop, the trooper asked the driver for ownership information and demanded the driver's licenses from the occupants. After several minutes of questioning, the driver consented to a search of the vehicle which yielded drugs. The Court of Appeals held the drugs should have been suppressed because the officer's continued questioning exceeded the scope and duration of the limited purpose stop.[13]
In State v. Diaz-Ruiz,[14] a trooper stopped a pickup on Interstate 70 in Geary county because he thought the ladder in the rear of the pickup might be loose and ready to fall out. As the trooper approached the pickup, he tugged on the ladder. Although it moved side to side, the trooper concluded it was secure. Rather than allowing the driver to proceed on his way, the trooper asked the driver for his driver's license and asked him about his travel plans. The driver did not have a license, and a later check revealed his license was suspended out of New Mexico. The trooper attempted to turn the stop back into a voluntary encounter, and then obtained consent to "check the load." Under plywood in the rear of the pickup, the trooper found 300 pounds of marijuana. The Kansas Court of Appeals affirmed the district court's suppression of the marijuana, finding the occupants were illegally detained and their consent was not attenuated from the illegal detention.[15]
Not all safety stops result in suppression of evidence. If the officer quickly develops reasonable suspicion of criminal activity while investigating the safety issue that justified the stop, further detention and investigation is justified. The Court of Appeals recently upheld a stop where a citizen called police to report that a car drove past the dead end of a road near a residential neighborhood. An officer drove to the area, parked about 20 feet behind the defendant's vehicle, and activated his emergency lights. Upon approaching the car on foot, he smelled the odor of marijuana and saw some on the window frame. A canine alerted on the vehicle, and the police found marijuana inside the vehicle. The court held this was a valid safety stop and upheld denial of the defendant's motion to suppress.[16]
C. "Normal" Terry stops
As noted above, police stops of a moving vehicle are a seizure under the Fourth Amendment, must be "reasonable" under the circumstances, and are constitutionally justified when supported by the reasonable suspicion standard rather than the more demanding probable cause standard.[17]
1. Reasonable suspicion and lane change violations
Reasonable articulable suspicion[18] sufficient to stop a moving vehicle must be based upon facts known to or observed by the officer prior to the stop.[19] Inchoate and unparticularized suspicion or hunches will not suffice.[20] Courts examine the "totality of the circumstances" and attempt to determine the issue from the point of view of a reasonable police officer.[21] In assessing whether reasonable articulable suspicion exists, Kansas courts sometimes give the impression they do not defer to an officer's perception of suspicious activity, and in doing so, have blurred the hazy line between reasonable suspicion of criminal activity and probable cause to cite or arrest for a violation.
For example, in State v. Ross[22] and State v. Hess,[23] the Kansas Court of Appeals held traffic stops were not justified at their inception based on the court's determination the officer did not have enough evidence to prove a violation of the traffic ordinance for which he or she stopped the vehicle.
In Ross, the officer saw Ross' car cross the fog line (the solid line at the right edge of the road) once. The officer stopped the car for failure to maintain a single lane of traffic, an alleged violation of K.S.A. 8-1522(a). The driver had a suspended license and had cocaine and paraphernalia on his person. The court suppressed all the evidence, holding the vehicle stop was not justified at its inception.[24]
In Hess, a deputy stopped a car after observing it traveling close to the lane divider lines. The deputy testified the car would occasionally drive upon or touch the broken lines. The Hess court held that hugging the lines or driving on the lines did not provide reasonable suspicion to stop an automobile without the presence of other indicators of possible intoxication, such as erratic driving or weaving.[25]
A Court of Appeals panel recently departed from the rationale of Ross,[26] but the Kansas Supreme Court reversed, holding that a single crossing of the fog line will not support a stop.[27] The language of the relevant statute in each case makes a difference. Compare the "as nearly as practicable" language in K.S.A. 8-1522(a) that was the asserted basis for the stop in Ross, with language in K.S.A. 8-1514 stating that no vehicle shall be driven left of the center line of the...
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