Legal Article: Traffic Stops ... ENDNOTES 1. Kathryn A. Gardner, Paradigm Shifts in Search and Suppression Law, supra at 22. For another Fourth Amendment article dealing with reasonable suspicion, see Colin Wood, They Didn’t Look Right to Me!, Reasonable Suspicion in Kansas: Through Whose Eyes is it Viewed? 76 J. Kan. Bar Ass’n 16 (Sept. 2007). 2. A search for cases involving a “traffic stop” on Casemaker 2.1 conducted on Jan. 26, 2010, yielded 280 hits. 3. Arizona v. Gant, ___ U.S. ___, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). 4. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). 5. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Mitchell, 265 Kan. 238, 960 P.2d 200 (1998). 6. United States v. Orduna-Martinez, 561 F.3d 1134 (10th Cir. 2009). A trooper stopped defendant’s car because his Ohio State Buckeye’s license plate frame was obstructing one of the two-digit year stickers on his license plate. After the stop, the trooper found 25 kilograms of cocaine in the car based on a consent search. The motion to suppress was properly denied because the officer had reasonable suspicion the tag was obstructed in violation of K.S.A. 8-134. 7. State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992), disapproved in part on other grounds, State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993). The safety reasons justifying the stop still must be based on “specific and articulable facts.” Vistuba, 251 Kan. at 824 (officer observed erratic driving and thought driver might be sleepy or impaired). 8. Kansas courts have recognized four categories of police-citizen encounters: (1) arrests supported by probable cause; (2) stops made in accordance with Terry, which are supported by reasonable and articulable suspicion of criminal activity; (3) volunteer encounters that are not seizures; and (4) community caretaking functions. City of Topeka v. Graubauskas, 33 Kan. App. 2d 210, 214, 99 P.3d 1125 (2004). 9. An encounter occurring in a public place is considered voluntary “as long as a reasonable person would feel free to decline the officer’s requests for information or otherwise terminate the encounter.” State v. Young, 37 Kan. App. 2d 700, 704, 157 P.3d 644 (2007). 10. State v. McGinnis, 40 Kan. App. 2d 620, 194 P.3d 46 (2008). 11. The McGinnis court said: Although there is no bright line test for distinguishing a seizure from a voluntary encounter, the Kansas Supreme Court has identified certain factors which support a seizure, including activation of sirens or flashers, a command to halt, a display of weapons, or [an] attempt to control the ability to flee or the direction of travel during the chase. Other factors supporting a seizure include the presence of more than one officer, the display of a weapon, physical contact by the officer, or use of a commanding tone of voice. Once a voluntary encounter loses its consensual nature and becomes an investigatory detention, the law enforcement officer must have knowledge of facts giving rise to a reasonable and articulable suspicion that the defendant had committed, was committing, or was about to commit a crime. Id. at 624-25 (citations and quotation marks omitted). See also United States v. Guerrero, 472 F.3d 784 (10th Cir. 2007) (returning driver’s documents, saying thanks, and beginning to walk away are generally sufficient to terminate detention after a traffic stop). 12. State v. Gonzales, 36 Kan. App. 2d 446, 141 P.3d 501 (2006). 13. In doing so, the court applied a three-part test to judge safety stops: First, as long as there are objective, specific, and articulable facts from which a law enforcement officer would suspect that a citizen is in need of help or is in peril, the officer has the right to stop and investigate. Second, if the citizen is in need of aid, the officer may take appropriate action to render assistance. Third, once the officer is assured that the citizen is not in peril or is no longer in need of assistance, any actions beyond that constitute a seizure, implicating the protections provided by the Fourth Amendment to the U.S. Constitution. Id. at 456.
www.ksbar.org
14. State v. Diaz-Ruiz, 42 Kan. App. 2d 325, 211 P.3d 836 (2009). 15. The court in Diaz-Ruiz indicated that an officer can explain the purpose of the stop and need not simply turn and leave once he or she figures out the reason for the stop is not a violation or a safety problem, but once the officer dispels his or her initial suspicion, he or she needs to quickly release the driver from further detention. Id. at 336-37. The court also questioned the officer’s credibility about the timing and preparation of a written warning citation and pointed out the trooper was motivated by a “desire to search the vehicle of these two Hispanic men.” Id. at 34041. 16. State v. Schuff, 41 Kan. App. 2d 469, 202 P.3d 743 (2009). See also City of Salina v. Ragnoni, 42 Kan. App. 2d 405, 408, 213 P.3d 441, 445-46 (2009) (upholding DUI stop based on a hot sheet entry driver might be suicidal). 17. See notes 3 - 5 and accompanying text. See also Wood, supra at 18. 18. “Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like ‘articulable reasons’ and ‘founded suspicion’ are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances the whole picture must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417 418, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981). Reasonable suspicion is “considerably less” than proof of wrongdoing by a preponderance of the evidence. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). Reasonable articulable suspicion is viewed in terms as understood by those versed in the field of law enforcement. Cortez, 449 U.S. at 418. 19. State v. Jackson, 213 Kan. 219, 515 P.2d 1108 (1973). The knowledge of one law enforcement officer is imputed to fellow officers. State v. Niblock, 230 Kan. 156, 161, 631 P.2d 661 (1981) (Sheriff’s officer in one county observed facts that when taken together with facts observed by sheriff’s officer in another county amounted to reasonable suspicion although facts were not specifically relayed); United States v. Troutman, 458 F.2d 217 (10th Cir. 1972) (collective information of all law enforcement officers). 20. State v. Finley, 17 Kan. App. 246, 838 P.2d 904 (1992). 21. See State v. Morlock, 289 Kan. ___, 218 P.3d 801 (2009); State v. Thompson, 284 Kan. 673, 166 P.3d 1015 (2007). See also State v. Moore, 283 Kan. 344, 351, 154 P.3d 1 (2007) (upholding a stop for following too closely where officer testified the defendant’s car was traveling “about a car length and a half ” of the car ahead of him at highway speeds and only about 0.72 seconds between the vehicles in violation of the twosecond rule). 22. State v. Ross, 37 Kan. App. 2d 126, 149 P.3d 876 (2007). The Tenth Circuit has not generally followed the rationale of Ross. See, e.g., United States v. Vazquez, 555 F.3d 923 (10th Cir. 2009) (deferring to officer’s perception the defendant did not drive “as nearly as practical entirely within a single lane.”) But see United States v. Maldanado, 614 F.Supp.2d 1179 (2009) (discussing conflicting 10th Circuit cases and holding that a single lane change violation did not constitute “probable cause” for a traffic stop). 23. State v. Hess, 37 Kan. App. 2d 188, 153 P.3d 557 (2006). 24. Finding no evidence that drifting over the fog line created a safety issue, the court held the evidence should have been suppressed. It reasoned that automobiles are not “railway locomotives,” and do not run on “fixed rails.” Ross, 37 Kan. App. 2d at 129. It went on to say that drivers are not only permitted, but sometimes required to move a vehicle out of its lane (to avoid a pothole, to pass a slower moving vehicle, etc.), and as long as such a movement can be made safely, there is no reasonable suspicion of a violation of the statute. Id. at 129-30. 25. Hess, 37 Kan. App. 2d at 194. 26. State v. Marx, 38 Kan. App. 2d 598, 171 P.3d 276 (2007). 27. State v. Marx, 289 Kan. 657, 171 P.3d 276 (2009) (rejecting both reasonable suspicion and community caretaking rationales for stopping a motor home that lost a hubcap, crossed the fog line once, and swerved and crossed the center line where there was no testimony as to how far the motor home crossed the fog line or the centerline).
The Journal of the Kansas Bar Association | April 2010 35