You are pulled over on the side of the road. Your face is flush, your palms are sweaty, you're terrified. You made a mistake and you have drugs in your car. The officer looks you over and starts to write you a citation. Maybe its for speeding or failing to signal a lane change but at this point you don't care. "Just give me the ticket and let me go." You try to keep your calm but you're scared to death, the officer issues you a ticket or maybe even a warning.
Then he starts to get inquisitive. Asks you where you are going? Have you been in this area before? He has a hunch.. He may even ask you if you have drugs in the car or if he can search? You're wondering, "I thought you just pulled me over for speeding...What's with all the questions?" Why is this guy holding you up? It seems you were free to go but now you're not.
He's illegally detaining you and the Supreme Court agrees. If you find yourself in this situation you need to seek the advice of a criminal defense attorney. The difference between a felony conviction and a outright dismissal of all charges is often a motion just like the one that was granted below.
IN THE DISTRICT COURT OF (Omitted) COUNTY,
KANSAS
CRIMINAL DIVISION
_________________________________
STATE OF KANSAS
Plaintiff,
vs.
Case
# Omitted
(Omitted)
Hon.
Omitted
Defendant.
_________________________________
MOTION TO SUPPRESS
COMES NOW, Brandan
Davies as council of record for the defendant (Omitted) in the District
Court of (Omitted) County Kansas as to the charge in the aforementioned case,
and hereby moves to suppress any and all evidence obtained as a result of an
unlawful detention and subsequent unlawful search and seizure of defendant’s
property on (Omitted), 2015, in (Omitted) County, Kansas.
In support of said
Motion, defendant alleges and states as follows:
FACTUAL STATEMENT
On (Omitted) at approximately 10:00 a.m. the defendant was traveling on his
way to Lawrence in the area of Interstate 35 and Marshall Road in (Omitted). The defendant was approached by a (Omitted) County Sheriff’s vehicle based on the allegation that defendant had failed to
signal. The (Omitted) County Sherriff’s
office was conducting a drug check lane ruse in that same area.
The officer
stopped the vehicle and the officer ran routine checks on the defendant’s
vehicle and made contact with the defendant.
The officer questioned the defendant and had the defendant exit his
vehicle and sit in the passenger seat of the officer’s patrol vehicle. The officer wrote a warning ticket to the
defendant and continued to question him.
During the time
period when the officer was writing the warning ticket the officer noted that
the defendant had “a very dry mouth, his voice was shaky, a vein in the side of
his neck was pulsing, defendant was extremely nervous and was possibly involved
in criminal activity.” The officer told the defendant he was free to
go and let the defendant exit the patrol vehicle.
When
the defendant reached the door of his vehicle the officer again approached the defendant
to ask more questions. The officer again
asked the defendant about his travels and the defendant gave the same answers
he had previously given. The officer
observed the same nervous behavior as before.
The officer asked the defendant if he had any drugs in the vehicle on
two separate occasions. The defendant answered
“no” to both inquiries.
The officer asked
for consent to search the vehicle and the defendant stated he did not give
consent. The officer then informed the defendant that he was being detained
while the officer made contact with a drug K9 to do an air sniff of the
vehicle. After the officer detained the
defendant he admitted to having marijuana in the vehicle.
ARGUMENT AND AUTHORITIES
Defendant asserts
the sheriff’s deputy violated the constitutional rights of the defendant when
he conducted an illegal search and seizure of defendant’s vehicle. A warrantless search by a law enforcement
officer is per se unreasonable under the Fourth Amendment to the United States
Constitution unless the State can fit the search within one of the recognized
exceptions to the warrant requirement. State v. Stevenson, 299 Kan. 53, Syl. ¶ 1, 321 P.3d 754 (2014). Those
recognized exceptions are: probable cause plus exigent circumstances, consent,
stop and frisk, search incident to a lawful arrest, inventory searches, the
emergency doctrine, plain view or feel, and administrative searches of closely
regulated businesses. State v. Johnson, 297 Kan. 210, 223, 301 P.3d 287 (2013).
In the instant
facts, the State will undoubtedly argue that the search fit within the probable
cause plus exigent circumstances exception to the warrant requirement. Presumably the State will argue that the
admission by the defendant that “he did have marijuana in the vehicle,” paired
with the fact that the vehicle was mobile and the evidence could have been
easily destroyed if the officer took the time to properly apply for a warrant, would
squarely fit this search into the “probable cause plus exigent circumstances”
exception. The defense agrees that if the admission was legally obtained the
warrantless search would probably fit within the exception. However, the admission to possession of
marijuana by the defendant was the product of an illegal detention by the
officer and therefore should be suppressed and all evidence derived from that
admission including the search of the defendant’s vehicle should be suppressed
as well.
The detention in
this case was the type of “prolonged detention” that is specifically forbidden
by the Fourth Amendment to the United States Constitution and the United States
Supreme Court has already decided a case directly on point and analogous to the
case at hand. In Rodriguez vs. United
States, 135 S. Ct. 1609 (2015), the defendant was the subject of a traffic
stop in which drugs were obtained. In Rodriguez,
the officer prolonged a routine traffic stop without reasonable suspicion in
order to conduct a drug sniff by a K9.
In Rodriguez, the court held that,
A routine traffic stop is more like a brief stop under Terry v. Ohio,
(citation omitted), than an arrest. Its
tolerable duration is determined by the seizure's “mission,” which is to
address the traffic violation that warranted the stop, Illinois v. Caballes,
(Citation omitted) and attend to related safety concerns. Authority for the
seizure ends when tasks tied to the traffic infraction are or reasonably should
have been completed. The Fourth Amendment may tolerate certain unrelated
investigations that do not lengthen the roadside detention, Johnson, (citation
omitted) (questioning); Caballes, (dog sniff) (citation omitted), but a traffic stop “become[s] unlawful if
it is prolonged beyond the time reasonably required to complete th[e] mission”
of issuing a warning ticket, id., at 407, 125 S.Ct. 834.
Rodriguez v. United States, 135 S. Ct. 1609, 1611,
191 L. Ed. 2d 492 (2015). (Emphasis
added)
In this case, the
officer prolonged the stop past the original mission of issuing a traffic
warning without reasonable suspicion in the same manner as the officer in the Rodriguez
case. We look to the standard an officer
must meet to detain an individual to be clear on the matter. To detain a motorist an officer must have
“specific and articulable facts and rational inferences drawn from those facts
[gave] rise to a reasonable suspicion” of criminal activity. U.S. vs. Werking, 915 F.2d 1404 at 1407. An officer's “inchoate and
unparticularized suspicion or ‘hunch’ ” is insufficient to give rise to
reasonable suspicion. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585,
104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883,
20 L.Ed.2d 889 (1968). The articulable
facts must actually give credence to the officer’s suspicions, “[s]ome facts
must be outrightly dismissed as so innocent or susceptible to varying
interpretations as to be innocuous.” Lee, 73 F.3d at 1039; Reid v.
Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890
(1980). Cited in United States v.
Wood, 106 F.3d 942, 946 (10th Cir. 1997).
Here
in the instant facts there are no specific and articulable facts and rational
inferences drawn from those facts that give rise to a reasonable suspicion that
the defendant was involved in criminal activity. We simply have a traffic stop in which an
officer finds a nervous person, issues a warning to that person then allows
them to leave. At that time the
“mission” of the officer, to issue a traffic warning, was completed. The officer obviously did not have reasonable
suspicion the defendant was involved in criminal activity while he was in the
officer’s vehicle or immediately thereafter because the officer did not detain
him at that time, the officer told the defendant that he was free to
leave.
The officer then
approaches the vehicle and reengages the defendant, asks him the same series of
questions of which the defendant gave the same answers. The officer then asks the defendant two times
if he is in possession of drugs of which the defendant answers “no.” The officer asks if he can search the vehicle
and the defendant says no. The officer
then tells the defendant he is not free to leave. Absolutely nothing had changed from the time
the officer originally detained the defendant on the traffic stop and then
released him, to the second time the officer detained the defendant except that
the officer no longer had a reason to detain the defendant. No articulable fact giving rise to reasonable
suspicion that the defendant has involved in criminal activity was presented
between the first lawful detention and the second unlawful detention. The only articulable fact the officer is
relying on to establish reasonable suspicion to detain the defendant the second
time is the “nervousness” of the defendant.
Nervousness alone is not enough to establish reasonable suspicion.
“While nervousness may also appear as a factor in many traffic stop cases, we
have never held that by itself it creates a reasonable
suspicion of criminal activity.” State v.
DeMarco, 263 Kan. 727, 737, 952 P.2d 1276, 1283 (1998).
Pursuant to K.S.A.
22-3216, and for the sake of brevity of this motion the defense has attached State
vs. Chapman, 23 Kan. App 2d 999, (1997) and United States vs. Wood,
106 F.3d 942, (1997) to this motion.
Each of these two cases are directly on point with fact patterns nearly
identical to the facts presented in this case, in which both courts found that
the evidence seized was the product of an illegal detention.
CONCLUSION
“The
‘exclusionary rule’ prohibits the admission of the ‘fruits’ of illegally seized
evidence, i.e., any information , object, or testimony uncovered or obtained
directly or indirectly as a result of the illegally seized evidence or any
leads obtained therefrom. This
exclusionary principle is known as the “fruit of the poisonous tree doctrine’” State
v. Canaan, 265 Kan. 835, 840 (1998). In this case the deputy illegally
detained the defendant and in doing so obtained evidence he used to illegally
search the defendant’s vehicle.
WHEREFORE,
the defendant requests, all evidence
obtained as a result of the search, including without limitation any statements
by defendant, be suppressed pursuant to the "fruits of the poisonous tree
doctrine". Wong Sun v. United
States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 44 (1963); see also, State
v. Childers, 222 Kan. 32, (1977).
Respectfully
submitted,
COPLEY
ROTH & WILSON
______________________________
Brandan
Davies S.Ct. # 24737
7500
College Blvd
Suite
700
Overland
Park, KS 66210
o: 913-732-3014
f:
913-451-9501
e:
brandan@crwlawyers.com
