Kan.: SCOTUS consent after stop jurisprudence criticized, but followed; consent found

Supreme Court’s consent after a valid traffic stop jurisprudence is criticized. “The factually driven inquiry means that the test is difficult to apply.” State v. Thompson, 184 Kan. 763, 166 P.3d 1015 (2007):

As the parties suggest, this divergence of opinion reflects the inherently factual nature of the inquiry. The factually driven inquiry means that the test is difficult to apply. This difficulty leads to imprecision which has led commentators to criticize the United States Supreme Court’s consent search jurisprudence. Commentators, in addition to noting the difficulty in applying the case law relating to consensual searches to specific fact situations, argue that the Court’s analysis utilizes an ill-crafted paradigm. See, e.g., Williams, Misplaced Angst: Another Look At Consent-Search Jurisprudence, 82 Ind. L.J. 69, 69-71 (2007) (“No one seems to have a good word to say about consent-search jurisprudence”; it is a “problematic realm of Fourth Amendment law.”); Note, The Fourth Amendment and Antidilution: Confronting the Overlooked Function of the Consent Search Doctrine, 119 Harv. L. Rev. 2187, 2188 (2006) (“Most commentators agree that the Court’s current approach is flawed, and even those commentators who defend the Court’s holdings criticize its reasoning.”); Simmons, Not “Voluntary” But Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine, 80 Ind. L.J. 773, 773 (2005) (consent-search paradigm is a “triple inconsistency: the Court claims to be applying one test, but in reality is applying a different test-and neither test fully comports with the real-life confrontations”); Comment, “People, Not Places”: The Fiction of Consent, The Force of the Public Interest, and the Fallacy of Objectivity in Police Encounters with Passengers During Traffic Stops, 7 U. Pa. J. Const. L. 1071, 1095 (2005) (because “[t]here is no such thing as a consensual encounter during a traffic stop,” author argues “courts need a new standard”); LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1898 (2004) (argues officers can “obviate any and all time and scope limitations” by performing “the well-known Lt. Columbo gambit [‘one more thing …’]” despite the reality that “any person who has been detained for a traffic violation is unlikely to so perceive the situation”); Chanenson, Get the Facts, Jack! Empirical Research and the Changing Constitutional Landscape of Consent Searches, 71 Tenn. L. Rev. 399, 402 (2004) (“[A]lthough scholars have criticized the consent search doctrine for years, the Supreme Court has steadfastly defended it and sided with a pro-law enforcement approach.”); Whorf, Consent Searches Following Routine Traffic Stops: The Troubled Jurisprudence of a Doomed Drug Interdiction Technique, 28 Ohio N.U. L. Rev. 1, 7 (2001) (“coercion inherent” in consent searches after routine traffic stop “must be addressed in some way”); Butterfoss, Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins, 79 J. Crim. L. and Criminology 437, 481-82 (1988) (argues test utilized by United States Supreme Court is unworkable because outcomes of cases turn on subtle factual distinctions that make it difficult for police officers to apply the standard in the field and adjust their conduct accordingly).

This criticism is valid in many respects. Because of the valid arguments raised, if we were to write on a clean slate, we would consider a different paradigm. We do not have this opportunity, however, because we are obligated to follow the United States Supreme Court’s interpretation and application of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 655-57, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, reh. denied 368 U.S. 871 (1961).

Later:

The facts of this case present circumstances somewhere in between these cited cases. The lights remained activated, a traffic warning was given, and Thompson was told to have a nice day, but there was no unequivocal signal that he was free to go. Also, the nighttime stop means the lights could have been left on for safety purposes. Given the ambiguity of the situation, the flashing emergency lights could be a factor in the totality of the circumstances relevant to a determination of whether an encounter with a law enforcement officer is consensual.

But, the subjective state of mind of the motorist is not determinative.

Here, some of these circumstances existed. The lights remained activated. We note, however, as previously discussed, the dark of night and the end of the traffic stop make the display of lights ambiguous and not a clear show of authority. In addition, Thompson pulled over in an alley, and two officers were present. Like Guerrero, 472 F.3d at 789, where the Tenth Circuit Court of Appeals found the presence of an additional officer a factor “only in the mildest of forms” because the officer was a distance away and had no contact with the defendant, in this case the trial court made the factual finding that Thompson was unaware of the back-up officer’s presence. The back-up officer did not approach Thompson or Thompson’s vehicle and had no contact with Thompson.

On the other hand, there was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no threat, no command, not even an authoritative tone of voice. Officer Weinbrenner did nothing to “convey a message that compliance with [his] requests [was] required.” Florida v. Bostick, 501 U.S. 429, 435, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991). No factor would indicate that Thompson’s will was “overborne and his capacity for self-determination critically impaired.” See Bustamonte, 412 U.S. at 225. Nothing about the encounter indicated duress or coercion. We conclude that under the totality of the circumstances a reasonable person would feel free to decline the officer’s requests or otherwise terminate the encounter.

The trial court correctly determined the detention was consensual.