Cases test search limits / LJWorld.com

Archive for Thursday, November 29, 2007

Lawrence appeal is one of two challenging police actions

November 29, 2007

Topeka — 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.

Discussion

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29 November 2007
at 8:04 a.m.

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LawrenceRules (Anonymous) says…

This comment was removed by the site staff for violation of the usage agreement.
29 November 2007
at 9:05 a.m.

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Andini (Anonymous) says…

I hope Shana never gets arrested.

http://www.vimeo.com/211781
29 November 2007
at 9:15 a.m.

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marcdeveraux (Anonymous) says…

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.
29 November 2007
at 9:18 a.m.

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geniusmannumber1 (Anonymous) says…

“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.
29 November 2007
at 9:24 a.m.

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northtown (Anonymous) says…

Oh No!!! You Mean Somebody Smokes Pot IN Lawrence Kansas????OH No!!!Tell God!!!!
Don't search The Boogies House,he may smoke pot???Who knows????
Lawrence is just Insane,from parking to Pot smoking and then downtown shopping and growth,make up your mind,What do you want,i city,or hicksvile USA….It is still just a smll Kansas town with a wortless city bus!!!And a wortless city commish.And the rest of you need to quit drinking and smoking pot and wake up and let this city grow!!!!
29 November 2007
at 9:24 a.m.

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riverat (Joe Hyde) says…

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.
29 November 2007
at 9:33 a.m.

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thomgreen (Anonymous) says…

“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.

29 November 2007
at 9:40 a.m.

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akt2 (Anonymous) says…

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.
29 November 2007
at 9:47 a.m.

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imastinker (Anonymous) says…

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.
29 November 2007
at 9:57 a.m.

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aeroscout17 (Anonymous) says…

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.
29 November 2007
at 9:59 a.m.

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average (Anonymous) says…

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.
29 November 2007
at 10:22 a.m.

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consumer1 (Anonymous) says…

Many comment on here are made with only the evidence provided by the LJW. There is a chance that the reporting party described the individual urinating, clothes hair color etc. So, there may have been reasonable suspicion for the officer to question Mr. Martin. You can legal eaze ths all you want but with out ALL the information your best opinion is only an opinion. I think attorneys should be doing everything they can to defend their clients even the dirt bags who are sexual offenders.
Enforcer gives some very good advise !
29 November 2007
at 10:52 a.m.

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aeroscout17 (Anonymous) says…

OK, I used ID in a different sense, however the Supremes have upheld an LEO asking for you identification (name). http://supct.law.cornell.edu/supct/ht… et. al.
29 November 2007
at 10:54 a.m.

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aeroscout17 (Anonymous) says…

BTW, also known as a “Terry stop”…google it.
29 November 2007
at 11 a.m.

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beobachter (Anonymous) says…

I think you should re-read your link. It says probable cause. That a big difference from asking for id anytime.

29 November 2007
at 11:01 a.m.

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kawryan (Anonymous) says…

akt2

“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.

fascist.
29 November 2007
at 11:25 a.m.

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daddax98 (Anonymous) says…

“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
29 November 2007
at 11:36 a.m.

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daddax98 (Anonymous) says…

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
29 November 2007
at 12:05 p.m.

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feeble (Anonymous) says…

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.
29 November 2007
at 12:37 p.m.

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northtown (Anonymous) says…

Potheads in Lawrence take note,in the early 90's,i had quite playing in any band about eight years prior and was messing in a recording studio now in Chicago,but lived here,and was coming home,on good old K-10.I had not smoked or done any drugs then for at least fifteen years!!!Or did any drinking of alcohol,still do not!!!!But at around two A.M.,about a mile east of the douglas county line a good old,should say young Johnson county officer pulled me over,speeding he said.Made me walk the white line,touch my nose,and all of that,had four guitars,in there cases in the car,in plain site.He wanted to look in them,i asked why?THen SH*T hit the fan.Then he wanted to look thru the car,i said NO!!!NO reason!!!!!HE handcuffed me and made me set until he got a warrant.And he found 7 tenths of old dried up pot that some body had tried to ,i guess throw out a window at one time,and it ended up in the back of the car!!!I ended up in the JO.Co.Jail My wife had to bail me out and was pissed!!!!The judge was also!!!I even passed the drug test and the judge gave me 7 days in jail,said if i had gave him permission,he would have probably just thrown it away and let me go.You have no rights in the good old US of A.I even have and had money then,and fought this,but when the hammer came down,i payed for it all!!!
Good luck to you all!!!!!! Just get high on life,why do you need this crap anyway,it just and always will cause this problem.This was the only time i spent time in jail,and i will admit,i did more in my life than just smoke weed,but why,i am not sure,just to be one of the cool ones i guess??
Oh yes,i had and still do,Long hair,and was driving a little sort of a sports car,and still do,when i drive!!! Rock ON Lawrence,but your New music SUCKS!!!!!!!!
29 November 2007
at 1:40 p.m.

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LawrenceRules (Anonymous) says…

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.
29 November 2007
at 2 p.m.

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ksdivakat (Anonymous) says…

well lawrencerules…..enlighten us…and by the way northtown……you 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.
29 November 2007
at 2:26 p.m.

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costello (Anonymous) says…

“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.

29 November 2007
at 7:43 p.m.

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akt2 (Anonymous) says…

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.
29 November 2007
at 7:57 p.m.

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compmd (Anonymous) says…

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.
29 November 2007
at 8:34 p.m.

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purplesage (Anonymous) says…

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.
29 November 2007
at 10:35 p.m.

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reidhollander (Anonymous) says…

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.
29 November 2007
at 10:47 p.m.

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reidhollander (Anonymous) says…

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.
29 November 2007
at 11:06 p.m.

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doc1 (Anonymous) says…

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.
30 November 2007
at 8:25 a.m.

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northtown (Anonymous) says…

I was alone that night,or morning,no pot smell,or cirageratte smell.No reason,just one twenty two year old a$$ hole cop and a john co. judge and four guitar cases.Cop said,nobody had no reason to have that many guitars,probaly full of drugs,mabye should have a look.And i myself acting like a jerk and not knowing about the pot just let it happen,Ended up in jail,you smart a$$ dougals co. a$$ holes know it alls idiots.Try it some day!!!!
Yes i just called you all a a$$hole and a idiot and i liked it,because that it what you are!!!!
Go look in the mirror!!!!!!!!!!!!
And listen to some to Blues and good old Rock and Roll,i probably wrote it!!!
30 November 2007
at 10:04 a.m.

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reidhollander (Anonymous) says…

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!

30 November 2007
at 10:10 a.m.

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reidhollander (Anonymous) says…

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.
2 December 2007
at 2:52 p.m.

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xfactor (Anonymous) says…

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.
3 December 2007
at 9:22 a.m.

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xfactor (Anonymous) says…

“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.