Topeka 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."