Advertisement

Archive for Friday, July 6, 2012

Appeals court panel upholds ruling that Lawrence stop was unreasonable seizure

July 6, 2012

Advertisement

— 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."

Comments

LJ Whirled 1 year, 9 months ago

A falsely-low standard of intoxication might play a role here. If the guy was drunk enough that he should not have been driving, you would think that a KHP Trooper, well-trained and sharp-eyed, would have been able to see at least some tiny hint of that impairment in the way the car was being driven. He apparently didn't see anything wrong with the way the car was being driven, but for some inexplicable reason, decided to investigate anyway (!). Am I missing something, or isn't that about the story attributed to the Trooper: "I observed a vehicle being operated property, and decided to investigate" ? I mean, if the driver did not weave, have his light on bright, drive too fast or too slow, fail to signal the turn into the driveway .... WHAT was the Trooper investigating, exactly?

Part of the answer: .08% BAC standard was determined by politics, rather than science, and often has a very limited correlation to meaningful impairment of a driver. The Federal Government used highway funding to bribe all the States into adopting .08%, and by doing so the states made it against the law to drive under circumstances where you are physically quite able to drive safely, but the politicians have decided you have to be punished anyway, just in case. It is a bad law, and people know it, and that is why it is so widely disregarded. Anyone remember the 55mph speed limit on I-70 from Salina to Denver? Same kind of deal.

0

Lawrenceks 1 year, 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!

0

akt2 1 year, 9 months ago

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

0

akt2 1 year, 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.

0

oletimer 1 year, 9 months ago

Do you people realize that you are supporting a DRUNK? REALLY? All in the name of "rights'? you all give me a headache. Whine and moan about drunk drivers, then cheer because one got off because of a technicality. What a bunch of losers. God I hate today's society.

0

patkindle 1 year, 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

0

pace 1 year, 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?

2

just_another_bozo_on_this_bus 1 year, 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.

0

Lawrenceks 1 year, 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!

1

FalseHopeNoChange 1 year, 9 months ago

"Power to the people!"

The 'Man' cannot hold us back now! The courts are on our side. The 99 % are 'taking' back New America from union cops.

Shout 'Rodney King!'

0

Mollie New Leaf 1 year, 9 months ago

He got out of a DUI on a technicality. What a POS. Drunk drivers deserve prison time. That bastard.

0

Tony Kisner 1 year, 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.

0

blue73harley 1 year, 9 months ago

The only victory here is that lack of common sense ruled the court in this one instance.

Here an obvious drunk gets a free pass.

But vehicle check lanes with no probable cause is okay according to the SCOTUS. NOW that was and is a travesty of govt. power.

0

werekoala 1 year, 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.

4

autie 1 year, 9 months ago

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."

I'm as liberal as liberal can be...but jeezus rice this guy is snockers and the officer knows it...you've got to be kidding me....obvious should trump your stupid rules. If the officer is off duty and walks out of WalMart and some idiot flies in the parking lot and shuts off his engine then falls out of the drivers side drunker than Cootie Brown, does this mean the officer has no cause to intervene? this crap makes me want to be a Republican.

0

blue73harley 1 year, 9 months ago

Just remember the name Paula Martin when you get to vote on which judges to retain...or not.

1

DONOLOVER 1 year, 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.

0

kansasredlegs 1 year, 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'.

3

BlackVelvet 1 year, 9 months ago

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

3

consumer1 1 year, 9 months ago

Can you say ultra liberal judge??

0

Commenting has been disabled for this item.