KS: Questions of passenger about travel plans were too intrusive and extended stop

Kansas holds that Muehler v. Mena cannot be applied to a traffic stop, following State v. Smith, 286 Kan. 402, Syl. P 2, 184 P.3d 890 (2008). Questions of the passenger about their travel plans were too intrusive. State v. Morlock, 40 Kan. App. 2d 216, 190 P.3d 1002 (August 29, 2008):

We are persuaded by the substantial legal authority from other jurisdictions that Cocking was permitted to ask O’Kelly where he was traveling from. This routine question was reasonably related to the scope of the traffic stop, and the inquiry did not unreasonably alter the nature or the duration of the stop. Although the question was not directly related to the original reason for the stop, i.e., failing to signal when changing lanes, the question allowed Cocking to determine if O’Kelly was on the proper course, and the question did not unreasonably delay O’Kelly or infringe upon his rights.

However, we disagree with the State that Cocking was permitted to ask O’Kelly how long he had been in Phoenix and what he was doing there. We acknowledge that similar questioning has been upheld by courts in other jurisdictions. However, we conclude these were not routine questions about O’Kelly’s travel plans, and the questions were not reasonably related to the scope of the traffic stop. Instead, the questions were designed to allow Cocking to probe into O’Kelly’s personal business in the hope of uncovering suspicious activity.

Such an intrusion cannot be justified by reasoning that the motorist is not legally obligated to answer the questions. This analysis blurs the distinction between a voluntary encounter and a traffic stop, which is an investigatory detention. In a voluntary encounter, a law enforcement officer may approach an individual and ask questions without constituting a seizure provided the individual is free to leave, but the officer cannot force the individual to answer. Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991); McKeown, 249 Kan. at 509. However, a traffic stop constitutes a seizure, and the motorist is not free to leave while he or she is being temporarily detained and questioned. The motorist is not allowed to pick and choose which questions must be answered. Until the law enforcement officer conveys to the motorist that he or she is free to refuse the requests or otherwise end the encounter, the motorist is expected to cooperate with the investigation and to answer all questions posed by the law enforcement officer. This is why it is essential that law enforcement questioning during a traffic stop be reasonably related in scope to the circumstances which justified the initial interference.

No suppression hearing was held and the trial court did not rule on the question of defendant’s stop. Nevertheless, the testimony at trial supported it. State v. Ford, 2008 Ohio 4373, 2008 Ohio App. LEXIS 3667 (10th Dist. August 28, 2008)* (shooting call at 4:30 am, and defendant and another were the only people around; defendant was holding something to secrete it and was acting nervous; that was reasonable suspicion).