Archive for Friday, July 6, 2012

Appeals court panel upholds ruling that Lawrence stop was unreasonable seizure

July 6, 2012


— A panel of the Kansas Court of Appeals ruled that a law enforcement officer who stopped a vehicle in Lawrence violated the driver's constitutional right to be free from unreasonable seizure.

The 2-1 opinion released Friday upheld a ruling by Douglas County State District Court Judge Paula Martin, who said evidence developed after the stop that the driver had been under the influence of alcohol had to be thrown out.

The dispute was over a March 2011 incident in which Derek Mueller, who was being followed by a Kansas Highway Patrol trooper, turned into a private driveway and turned off the car's lights and engine.

The officer parked one lane over and behind Mueller. The office asked Mueller, "Live here?" Mueller said he didn't but that he pulled into the driveway to turn around. "You turned your lights off and shut the car off," the officer said. The 2 a.m. encounter was captured on the officer's dash camera.

The officer testified that a strong odor of alcohol was coming from the car, the passenger was drunk and Mueller was slurring his words. Mueller was charged with DUI.

But the officer testified he didn't see Mueller commit a traffic infraction before the encounter. Judge Martin concluded that the officer had detained Mueller without probable cause to do so.

The state appealed, saying that the court shouldn't have suppressed the evidence because the encounter with the officer was "voluntary," and that a reasonable person in Mueller's position would have felt free to leave after the officer approached the car.

But the appeals panel majority said the officer gave no indication that Mueller was free to ignore him. "The officer followed Mueller in the driveway. When the officer approached, he didn't ask permission to ask questions, didn't ask about Mueller's welfare, and didn't communicate that Mueller was free to leave or to refuse to answer," the majority opinion said, adding that the officer used an accusatory tone.

But Judge Karen Arnold-Berger dissented. She said the officer was correct to be skeptical of Mueller when Mueller had turned off the car and then said he was going to turn around. "It is hard to deny the fact that most people do not turn off the vehicle's headlights and ignition when using a residential driveway to turn around," Arnold-Berger wrote. She supported the state's contention that "that this was a voluntary encounter that subsequently and lawfully turned into an investigatory detention based on Mueller's statements and actions."


jafs 5 years, 9 months ago

3 actually - one on the original opinion, and 2 on the appeals court.

coryweber 5 years, 9 months ago

go easy, I'm a Republic an and I think they made the right call.

Orwell 5 years, 9 months ago

Restricted the power of government, therefore "ultra liberal?"

BlackVelvet 5 years, 9 months ago

Sounds like the Officer was using some common sense, which is not allowed anymore.

jhawkinsf 5 years, 9 months ago

It's a fact that common sense and the law are frequently at odds with each other.

kansasredlegs 5 years, 9 months ago

3 of 4 (1 District & 2 COA judges) got it right. Just have to answer the one question, "Did the driver really, objectively believe he or she was free to leave the police encounter?" If your answer is no, then suppressed, period. Don't look through the typical police lenses, "'my instincts were correct' and the 'ends justifies the means approach'.

ebyrdstarr 5 years, 9 months ago

Or how about the next time you don't get randomly harassed by the police, you can send us a thank you note for having protected your right to remain free from police detentions?

Topple 5 years, 9 months ago

Maybe when this guy kills someone you know drunk driving you'll wish SOMEONE had used a little common sense.

DONOLOVER 5 years, 9 months ago

What about trespassing? The driver stated he did not live at the residence in which he pulled in to and parked. His suspicious behavior is why the office questioned him. Not doing anything wrong, drive on.

ebyrdstarr 5 years, 9 months ago

The point, though, is that the officer only found out that information by improperly detaining the man. The officer had no reason for walking up to the driver and asking any questions at all.

Orwell 5 years, 9 months ago

It would be criminal trespass only if the property had been posted, or if the driver had refused to leave the premises when told to leave by the occupant. It's not a crime if I step off the sidewalk into your yard, or pull off the street into your driveway.

ebyrdstarr 5 years, 9 months ago

That, too. Or the driver could be a guest, etc. My point was none of that matters because you don't even get to that without unlawfully stopping the driver first.

Orwell 5 years, 9 months ago

Her decision limited the power of government. Are you saying that's a bad thing now?

BlackVelvet 5 years, 9 months ago

No, but she's the judge that gave a rapist a sorry slap on the wrist not that long ago.

Michael Shaw 5 years, 9 months ago

This is hardly a fair summary of that trial.

Greg Cooper 5 years, 9 months ago

And that, oletimer, is really a thoughtful statement.

deec 5 years, 9 months ago

Except in this case the driver apparently was driving fine. The article said he didn't violate any traffic laws, which is probably why the officer didn't pull him over on the road.

Topple 5 years, 9 months ago

I'm just wondering what made the officer suspicious if he had no reason to believe he was impaired.

werekoala 5 years, 9 months ago

Yeah, I agree with this ruling. If he had so much as swerved in the road, displayed slow reaction times, or in any other way given evidence of intoxication pryor to pulling in to the driveway, the officer has probable cause all day long.

But for very very good reasons, we have, as a nation, determined that a police officer's suspicions alone does not give them the right to investigate you.

This should be seen as a victory for anyone (especially conservatives) who believes in limiting government power over citizens.

LocalYocal 5 years, 9 months ago

Actually, if you are going to quote "law" you should try and get it right. An officer only has to have "reasonable suspicion" for a traffic stop. It sounds like if this guy had said he lived there, the officer would have left. There is no law stating when an officer can ask a question. The man could have refused to answer, and that would also have ended it. This man VOLUNTARILY stated he did not, and as quick as that, the officer had REASONABLE SUSPICION for a traffic stop and subsequent arrest with PROBABLE CAUSE of DUI.

deec 5 years, 9 months ago

Pulling into a driveway is a sign of drunk driving? Gosh I must be drunk every day. Who knew?

Why was the cop following him and then blocking him into the driveway if he wasn't breaking any traffic laws?

Topple 5 years, 9 months ago

As well as a victory for a drunk driving.

Orwell 5 years, 9 months ago

Except that the cop confronted the driver before there was any evidence of intoxication.We shouldn't get too comfortable with police initiating random confrontations just to see if anything's amiss, or claiming that finding evidence justifies whatever means may be use to find it..

ebyrdstarr 5 years, 9 months ago

The only reason that the check lanes have been approved is that they stop everyone and don't target specific individuals. I'm not saying I agree with the Court's analysis because I would find check lanes to be unconstitutional. But based on the rationale of the check lane cases, this kind of stopping and detaining just one, specific individual is improper.

Topple 5 years, 9 months ago

I'm curious if people would be singing the same tune if they'd found a dead body in the guy's back seat...who cares about the dead person, this guy got stopped by an unreasonably suspicious officer!

Tony Kisner 5 years, 9 months ago

Officer had the opportunity to turn on the lights. Did not know if the drive way was the property of the driver. If this flies then you can be stopped and interrogated on the sidewalk for just looking like a drug dealer. I am a member of the GOP and think this dude was lucky. But the cop will not make this mistake again.

jafs 5 years, 9 months ago

Interesting idea, but of course people drive without licenses, right?

What would your penalty be if they do that after having their license permanently revoked?

jafs 5 years, 9 months ago

Actually, I believe that stop and frisk laws exist in a number of communities, and police officers routinely stop and frisk people looking for drugs.

Not sure how it could be constitutional, personally.

ebyrdstarr 5 years, 9 months ago

The Fourth Amendment is not a technicality.

Armored_One 5 years, 9 months ago

Nope, it's not. Just as assuredly, this ruling basically made the kid feel empowered, which means he will likely drink and drive again.

If, and please God let it only be hypothetical and not an actuality, he drives drunk again, this time injuring someone, would you tell the injured person that the person that hit them while driving drunk was able to do so because of a technicality? Somehow, I don't think it would be all that comforting.

I know for a fact one of my best friends, who buried his daughter a few years back, would tell you as much. The drunk driver was driving only because of a technicality relating to the Fourth Amendment.

ebyrdstarr 5 years, 9 months ago

He might do it again some day would be a horrible justification for abandoning the 4th Amendment. And once again, I will reiterate that no one who has been released due to a violation of his or her Fourth Amendment rights has been released due to a "technicality." That the police had no justification for stopping this guy at all is not a technicality but a blatant abuse of power that we shouldn't be willing to tolerate.

Armored_One 5 years, 9 months ago

How do you stop someone from driving a vehicle that is not only stationary, but the engine is no longer running?

Seems to me that the driver voluntarily halted the car.

The driver voluntarily exited the vehicle.

The driver voluntarily demonstrated intoxication, and being an ex-alkie myself, I can promise you that unless the officer sat behind the car for a couple of hours, the driver didn't just magically POOF become intoxicated.

Let me ask you a question.

If he was intoxicated when he exited the vehicle that he has just finished operating, was he, or was he not, in violation of drunk driving laws? At any given time, any officer may approach any person in this country to see if they need assistance, or ascertain their condition, or any number of other things.

How is this a violation of the 4th Amendment when the officer observed the behavior?

ebyrdstarr 5 years, 9 months ago

The word "stop" in this situation is just the legal word used; it doesn't mean that the police officer made the driver stop the car.

The article does not indicate that the driver got out of the car. The facts relayed imply to me that he did not. If the cop had witnessed the guy getting out of the car and stumbling, you can bet he would have testified to that fact during the suppression hearing and I suspect the outcome would be different here. So I think you are assuming facts contrary to the actual scenario. (The case is unpublished and has not yet been put onto westlaw, so I haven't been able to verify greater facts.) As reported in this article, the problem is that the officer did not observe any behavior until after approaching and detaining (aka "stopping") the guy.

Yes, an officer may walk up to people. The 4th Amendment violation (as found by 3 of 4 judges who have addressed these facts) came in detaining the guy and asking him questions in such a way that a reasonable person would not feel free to leave even though the officer had not observed any suspicious behavior, by his own admission. Keep in mind that it is the state's burden to prove that this encounter was not a violation of the 4th Amendment. The state failed to meet that burden at two courts now. So how are you in a better position than those two courts to definitively say this wasn't a 4th Amendment violation?

Armored_One 5 years, 9 months ago

I give up. It is absolutely pointless to argue with an armchair judge.

The Constitution isn't something to sneeze at, but it should never, never absolve a person from the consequences of failing to follow local, state or federal laws. The man drove drunk. I have less than no sympathy for drunk drivers, but instead of getting in trouble for it, he gets a free pass. That is horse hockey, pure and simple.

ebyrdstarr 5 years, 9 months ago

ANd you're not being an arm chair judge? At least I understand the legal principles at play.

Armored_One 5 years, 9 months ago

I guess being a pall bearer for a 9 year old little girl changed my perspective slightly.

Bob Forer 5 years, 9 months ago

"Morning in America!!?

"Peace with honor."

"Don't tread on me."

Go GOP, Go.

Shout Glen Beck.

Some folks are just natural born jackasses.

Lawrenceks 5 years, 9 months ago

Correct me if I am wrong but didn’t the Supreme Court just rule recently that a law enforcement officer can walk up to anybody and make contact with them (not a traffic stop) as this Trooper did not make a traffic stop) and if so the person they make contact does not have to answer their questions? That if the Officer then finds a crime has been committed an arrest can be made? I think this needs to be appealed to a higher court! The Trooper was correct on this voluntary contact and arrest!

just_another_bozo_on_this_bus 5 years, 9 months ago

I'd guess this guy's legal costs so far are nearly equal to or greater than what the fines, etc, would have been if he'd just pled guilty. So even though the search and arrest were (properly) found unconstitutional, he has by no means got off scot-free.

pace 5 years, 9 months ago

If one wanted an interesting discussion, if you want to get someone for trespassing, better move to another state. I called the sherriff about someone trespassing on a property I was watching out for. It was a drunk very ex boyfriend of the owner. The deputy went to the property and talked to the guy, then the deputy called me and said, they guy was too drunk to drive and he couldn't ask the guy to leave because that would be entrapment. I then said, could you arrest him. The deputy, told me the man wasn't doing anything wrong and I was just out to make trouble for him. The deputy left, and the drunk destroyed the woman's garden. When I called to complain, the deputy said I had no proof. He said they don't pick up anyone for trespassing unless there is a restraining order. Feel safer now?

patkindle 5 years, 9 months ago

he is your typical drunk punk laughing at the legal loop hole he got his lawyer to jump thru for some big bucks the poor drunk aint got a chance today

ebyrdstarr 5 years, 9 months ago

Do you realize that I am defending all of our rights under the 4th Amendment? An awful lot of people throughout history who have lived in oppressive police states would get a headache from seeing how willing you are to accept police abuses.

akt2 5 years, 9 months ago

But then what happened after the encounter? Did the drunk spend the night in the driveway, call a friend to come get him and move the car, or drive away himself? He got away with pulling into the driveway, but how did he get away with pulling out of it? That would have been a DUI waiting to happen.

ebyrdstarr 5 years, 9 months ago

He was arrested that night. This court ruling was on the motion to suppress that was filed by the defense in response to the fact that the driver was arrested and charged with DUI.

akt2 5 years, 9 months ago

Got it. Too bad the cop didn't wait till the guy got his vehicle "turned around."

Lawrenceks 5 years, 9 months ago

This makes no sense to me. Why would this be any different then an Officer walking up on a guy passed out in his car and the keys in the ignition? Officers have made hundreds of DWI arrest in situations like this!

jafs 5 years, 9 months ago

Because there was no evidence the guy was drunk from the way he was driving.

If there had been, the officer would have stopped him while he was driving, and been within their right to do so, as far as I understand it.

Also, your example isn't a good one - it's possible the guy got into his car, put the keys in the ignition, and passed out without driving the car, although it's unlikely.

Do you have a source for "hundreds of arrests" made like that?

ebyrdstarr 5 years, 9 months ago

Except, sadly, getting in your car drunk and putting the keys in the ignition will get you a DUI. Even if you have no intention of driving.

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