Archive for Thursday, November 29, 2007

Cases test search limits

Lawrence appeal is one of two challenging police actions

November 29, 2007


— Two minor drug cases, including one in Lawrence, have led to major constitutional questions before the Kansas Supreme Court over when police can search a person.

The court will hear oral arguments at 1:30 p.m. Tuesday in a dispute arising from the June 16, 2005, arrest of Paul Martin near Trinity Episcopal Church, 1011 Vt.

The incident started as Lawrence police Officer Reid Walter was on patrol investigating whether someone was urinating in the area and he approached Martin, according to court records.

Martin wasn't seen causing any trouble, but Walter asked him his name and some other questions.

Martin, who is now 37 and lives in Leavenworth, voluntarily answered the officer, the records indicate. Martin said he was in the area to listen to music downtown, according to the records.

While the two talked, Walter, who said he routinely checks for outstanding warrants, ran Martin's name and birthdate through the department's dispatch center to determine whether he had any warrants.

Martin did have an outstanding warrant, the records said. According to the Douglas County District Attorney's office, the warrant was for a probation violation on a charge of driving under the influence.

Walter then arrested Martin on the outstanding warrant, searched him and found a small amount of marijuana in an Altoids tin. Martin later was convicted of possession of marijuana and sentenced to six months in jail.

But Martin's attorney, Juanita Carlson, said the evidence of marijuana shouldn't have been allowed during the trial heard by District Judge Paula Martin, who is not related to the defendant.

Police can't run a warrant check on people when they are not suspected of a crime, Carlson said. The Fourth Amendment to the U.S. Constitution guards against unreasonable searches and seizures.

"There simply was no reasonable articulable suspicions specific to Mr. Martin to lead one to think he was committing a crime, about to commit a crime or had committed a crime," she argued in a legal brief.

The Kansas Court of Appeals agreed. In February, the appellate court ruled that stopping Martin wasn't justified.

That decision prompted the district attorney's office to appeal to the Kansas Supreme Court.

In the office's legal brief, Assistant District Attorney Deborah Moody argued that in previous cases, the Kansas Supreme Court has ruled that once a police officer determines there are outstanding warrants for a person, "regardless of the original basis for the contact," the officer has a duty to arrest and is legally permitted to conduct a search.

Also there is a dispute as to how voluntary Martin's cooperation was and whether he was illegally detained.

Martin's attorney, Carlson, said he was detained without any evidence of a crime having occurred. "Clearly, Mr. Martin was not free to leave or he would have," she said.

But Moody disagreed.

"There is no indication that Martin felt compelled to talk to Officer Walter, nor is there any indication that Martin tried to leave or that he was prevented from leaving Officer Walter or any other officer," she wrote.

The other case before the Kansas Supreme Court involves a man arrested in 2005 for possession of marijuana in Reno County.

The man, Shannon Greever, was stopped by police for failing to use his turn signal the required 100 feet before making a turn. After he was stopped, he was searched and marijuana was found, according to court records.

But the appellate court said essentially that the 100-foot rule couldn't apply in this case because there was road construction that the defendant couldn't see at first that required him to turn. The officer had no reason to stop him, and the search was illegal.

Oral arguments in that case will be Dec. 6.


LawrenceRules 10 years, 6 months ago

This comment was removed by the site staff for violation of the usage agreement.

marcdeveraux 10 years, 6 months ago

lets see, 6 months in jail at $30 a day, $5,400 for a small amount of a leaf. dranconian laws are alive in kansass, legalize small amounts and keep the thought police at bay.

geniusmannumber1 10 years, 6 months ago

"Liberal Lawyers in Lawrence are always trying to test the system for loop holes and errors hoping to set some new president regarding this very issue of Police authority to check for warrants."

I'm pretty sure you meant to say "all criminal defense lawyers, everywhere, whether liberal or conservative." Cause what you disparagingly describe is called, you know, "representing your client".

I'm sorry you have such problems with the American system. I hear Sudan doesn't put up with this nonsense.

Plus, both liberals and conservatives are trying to get a "new president". Bush has already served two terms, and can't run again.

Joe Hyde 10 years, 6 months ago

The officer did his job right. And Mr. Martin did his part right, too, by being cooperative and polite to the officer who conducted the field interrogation and wound up arresting him on the warrant.

The biggest "failure of law" here -- and I know everybody has an opinion on this -- is that Mr. Martin was subsequently charged with the additional count of possessing a very small amount of marijuana. The law enforcement community's workload would be so much lighter, and so much more effective at combatting actual serious crimes, if the state would legalize the possession of this non-narcotic, non-addictive substance. Marijuana users as a group aren't the sort of people who go around deliberately causing trouble.

thomgreen 10 years, 6 months ago

"Since when does the police have to wait for someone to commit a crime to check them for warrants. Checking for warrants does not violate the persons rights. If they're a fugitive from justice and refuse to cooperate with the officer they can be charged with obstruction of justice. Any officer can stop someone and ask who they are and where they are going, they can ask for I.D."

Since when did we give up all personal freedom? When police do conduct a search, the amendment requires them to have probable cause to believe that the search will uncover criminal activity or contraband. In other words, they must have legally sufficient reasons to believe a search is necessary. "Martin wasn't seen causing any trouble...", that should have ended it right there. What next?, are we going to set up a check point on the sidewalks of Mass. checking everyone's ID as they pass by?

I thought this was an article debating the constitutionality of these stops, not an open forum to attack an attorney.

akt2 10 years, 6 months ago

I say the guy probably was urinating in a parking lot or alley. Or getting ready to break into somebody's vehicle. Or vandalize property, or maybe mug someone. Just because he wasn't doing anything at the time, doesn't negate the fact that there was a warrant. The cop did his job.

imastinker 10 years, 6 months ago

asking the guys name is not the same as a search. Besides, he already broke the law, when he got his DUI and broke probation. It was fair game.

Steve Mechels 10 years, 6 months ago

Spywell hit it right on; when checking anyones ID if there are warrants it shows up. BTW, law enforcement has the right to ask for ID anytime, whether a crime has been committed or not.

Since he had an outstanding warrant, search was justified as were any resulting finds. Good luck defending this case (loss).

And no, I am no a lawyer but I did stay in a Holiday Inn Express once.

average 10 years, 6 months ago

marcdeveraux -

You aren't even coming close to the costs here. DA's office has to spend hours building and presenting the case. Printing 8x10 glossy photographs. A judge and a spot on an already packed court calendar for a day. Possibly a jury. Public defender? The arresting officer spent the day in court, not doing something useful (although it doesn't sound like doing something useful was his beat). And, $30 a day is probably a substantial understatement of the cost of imprisonment, although "sentenced to six months" doesn't mean he actually served day one. However, probation isn't cost-free, either.

Pretty assuredly, we're talking about over $10,000 for the number of doobies that could fit in an Altoids tin.

Steve Mechels 10 years, 6 months ago

OK, I used ID in a different sense, however the Supremes have upheld an LEO asking for you identification (name). et. al.

Steve Mechels 10 years, 6 months ago

BTW, also known as a "Terry stop" it.

Kaw Pickinton 10 years, 6 months ago


"I say the guy probably was urinating in a parking lot or alley. Or getting ready to break into somebody's vehicle. Or vandalize property, or maybe mug someone."

I say your an idiot and should be detained as such.


daddax98 10 years, 6 months ago

"He was violating the law when he was checked, I do not see why there is any problem with searching someone who is caught violating the law."

actually he was just standing there for all outside apperances not breaking the law. Just because the search turned up some pot does not mean it was justified. You cannot use the ends to justify the means

daddax98 10 years, 6 months ago

DIrtylinen you are missing the point, none of theses court rulings give the police the ability to indiscriminately stop somebody question them and run their ID. you people that keep citing these cases are not giving proper weight to a few important words eg. Reasonable suspicion, detain, investigatory; what this means is the an officer cannot just stop you for no reason and question you

feeble 10 years, 6 months ago

To all the posters saying you don't have to give ID, next time YOU get stopped by the police (assuming you don't think you have done anything wrong) why don't you ask them "Officer, am I free to go?" and see what happens.

Some police officers will let you go, others will give a very irritated look and then let you go, and the remainder will find some reason to arrest you on the spot, lawful or otherwise. I've done this one several occasions, in all cases I wasn't doing anything illegal (usually walking on a sidewalk) nor in possession of anything illegal. In all but one case, I received the second reaction. The one exception was an officer who gave me a stern lecture about "not provoking the police."

The fact of the matter is, the police don't care about guilt or innocence.

LawrenceRules 10 years, 6 months ago

I love all the arm chair lawyers who think, based on their sweet ability to search wikipedia, have a solid understanding of constitutional law and how it effects search and seizure and way the police do their job.

ksdivakat 10 years, 6 months ago

well lawrencerules.....enlighten us...and by the way are absolutely right...we have no rights, especially here in lawrence and you just take what they give you and deal with it the best way possible.

costello 10 years, 6 months ago

"next time YOU get stopped by the police ... why don't you ask them "Officer, am I free to go?" and see what happens."

In my whole life I've never been stopped by the police while walking down a sidewalk. I can't imagine having had enough such experiences to be able to conduct any kind of informal study of police officer reactions this question.

akt2 10 years, 6 months ago

Then after you make a big deal out of it, they know you on sight. So you won't have to worry about showing your ID anymore.

compmd 10 years, 6 months ago

The first case is interesting. Without knowing the exact situation in which Martin and Officer Walter met, we cannot even begin to say whether or not requesting ID or checking for warrants was reasonable.

If what the article says is correct, then Carlson's initial defense strategy was weak. Questioning the admissibility of the marijuana wasn't going to go far in my opinion. The search that resulted in the discovery of the marijuana was perfectly legitimate and conducted pursuant to an arrest performed by a police officer executing his duty as prescribed by an arrest warrant. I applaud her attempt to defend her client, but she had slim to no chance of having a judge buy it. Its the initial contact that is the crux of this case. Why so much discourse between the officer and Mr. Martin? Why the warrant check? Was Mr. Martin detained? Note that "detained" does not imply "not free to leave." If it is ruled that the warrant check was unreasonable, then fighting the validity of the arrest and search leading to the possession charge should be easy. I'm curious to see what will happen with this case.

The second case should never have made it out of a county courtroom. Of course, the details are not all here, but the officer better have had a darn good reason to have asked Mr. Greever to step out of his car. I think the appellate court's decision in the case should stand. I can't believe this case is going to the Kansas Supreme Court.

purplesage 10 years, 6 months ago

I have no use for marijuana or sympathy for those who want to use it - nor for alcohol, for that matter. But I cannot help agreeing with those who do that math on 6 months at $30 a day - except that it is likely more like $60 a day. Jails are full of people with minor probation and parole violations, non-viloent types, who should be out working and contributing, not sitting, bored out of their skulls, planning their next round of miscreant deeds with cell mates.

reidhollander 10 years, 6 months ago

Spywell -

"always trying to set new political president"

"President", are you serious? Maybe you were searching for the word precedent? I expect more from you since you apparently know the law inside and out.

If you want people to respect your posts you should try to use words that properly convey your point. In the meantime continue to analyze legal questions with what I assume is no legal training whatsoever.

reidhollander 10 years, 6 months ago

dirtylinen -

""Refusing to answer a police officer's questions is not a crime."

Not exactly. The case is Hiibel v. Sixth Judicial District Court of Nevada."

Once again I amazed at the confidence of posts when the poster obviously has a fundamental misunderstanding of the US system of justice. How does a Nevada state decision apply to a case in Kansas. At best it is persuasive authority and is not binding. Secondly, even if this was a Kansas district court case it would not bind the Kansas Supreme Court in any way.

Take a civics class.

doc1 10 years, 6 months ago

We have another Sara Swain type defense attourney on our hands. Very little knowledge of the law and lots of energy to waste everyones time.

reidhollander 10 years, 6 months ago

Dirty Linen -

In the United States there are two court systems the federal and the state. Since this case is being heard by the STATE supreme court of Kansas the judgment of the FEDERAL supreme court is persuasive only. If at some point there is cause for the U.S. Supreme Court to grant certiorari they will still be bound by the constitution and laws of the state that the case originated in, Kansas in this case...NOT NEVADA. This is the case if any state issue is heard at any level of federal court whether it be district, appeals, or Supreme.

In any case, Hiibel was deciding whether or not the terry stop laws in the state of NEVADA were unconstitutional. We are in Kansas, the stop was in Kansas, the case went through the Kansas court system. So I ask again, how is this case binding on the Kansas Supreme Court?

Finally, you are correct, I did not follow the link. Instead I read the entire text of the case from Westlaw. If you had done likewise you may have a better understanding of the issues that were presented to and decided by the court.

I have to go now and study for a US Federal Civil Procedures final but I will check back to see what exciting legal theory you put forward next!

reidhollander 10 years, 6 months ago

Spywell -

I am not sure if obstruction charges are covered in civics. I would think that would be more of a criminal procedure class. I was merely pointing out that your vocabulary was lacking precision. I will go as a civics teacher (I will have to find one since I took that class in high school and am now engaged in post graduate studies) about obstruction and you go ask an English teacher about your nomenclature. Then we can all get on the right track.

Except for the fact that obstruction charges have nothing to do with civics. I will be sure to ask my CP professor though.

xfactor 10 years, 6 months ago

The guy had a warrant for breaking the law and then carries Marijuana around which is another law broken. How much slack does he want?? Of course his attorney is arguing this incident, she floods the courts with motions all the time.

xfactor 10 years, 6 months ago

"enforcer (Kathy Gragg) says:

I just think it is important for people to understand the definitions of the law as they apply. Therein is where the rubber meets the road. Wording is everything. Also it is important to keep up with amendments to existing law and how they apply and alter the current law. Too often a simple amendment is slipped in that changes the way that particuar law is applied. In fact the only way to be in complience with the law is to know when you are within the parimaters of the laws."

I always enjoy reading a comment by someone attempting to sound brilliant, only to find they struggle with correctly spelling common words.

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