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
STATE OF KANSAS
Case # Omitted
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:
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.
“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).
COPLEY ROTH & WILSON
Brandan Davies S.Ct. # 24737
7500 College Blvd
Overland Park, KS 66210