KS: Directions and control of defendant made it clear to defendant he wasn’t free to leave: “congenial conversation during the prolonged encounter” doesn’t undo it

The directions and control of defendant made it clear to defendant he wasn’t free to leave. This is an important analysis for any practitioner. State v. Cleverly, 2016 Kan. LEXIS 606 (Dec. 23, 2016):

After the permissible length of time for the traffic stop had expired, i.e., when Cleverly should have been free from police detention, an officer told him to exit the vehicle, conducted a pat-down search of his person without asking for permission, and directed him to stand in front of the patrol car. The district court and Court of Appeals appeared to discount the importance of the initial, illegal pat-down search because it did not produce any incriminating evidence. But it is important here as an objective indicator to a rational person that his or her actions are still under police control, both verbally and physically. A reasonable and prudent person’s assessment of the voluntary nature of an encounter with a police officer would be informed by the involuntary manner in which it commenced. An officer who tells a person to exit a vehicle, puts hands on that person without consent, and directs the person to stand in front of the patrol car has not signaled to that person that he or she is totally free to disregard the officer’s questions, decline the officer’s requests, or otherwise terminate the encounter. Those detention indicators are not trumped by congenial conversation during the prolonged encounter.

Moreover, the State’s argument that the initial pat-down was necessary for officer safety suffers from a logical disconnect. If, as the State contends, the investigatory detention had ended before the pat-down search, then that means that Officer Humig had conducted his entire official investigation without checking Cleverly for weapons. If the passenger did not present a threat to officer safety during the official investigation, an agreement to voluntarily hang out with the officer afterward should not have created such a safety risk. If the contention is that Cleverly’s getting out of the vehicle was what presented the risk to officer safety, then Officer Humig created the risk himself. With the official investigation completed, as the State contends, Officer Humig (like Cleverly), was free to simply leave the scene. He did not have to tell the passenger to exit the vehicle.

Another piece of the totality of circumstances that refutes the notion that Cleverly was free to do what he pleased during the “voluntary encounter” period is the fact that Cleverly apparently felt compelled to ask permission from Officer Humig to do anything but stand at the front of the patrol car. He asked to smoke a cigarette, and the officer said that he could, albeit the officer said that normally he would hand the cigarette to the person in such circumstances. Pointedly, the officer did not tell Cleverly that he need not ask permission because he was not under police control. To the contrary, the officer granted the permission in a manner that indicated such permission was required under the circumstances, including possibly doling out the cigarette.

Later, Cleverly asked Officer Humig for permission to use his own cell phone to make a call. The officer denied this request, telling Cleverly that he could not make a phone call until after the search. If Cleverly was not being detained by the police and was free to leave, Officer Humig should have had no authority to control Cleverly’s use of his own cell phone. Officer Humig would later explain during testimony that he did not allow phone calls to be made during stops of this nature because of past incidents in which third parties would arrive at the scene and cause difficulties. But, of course, that statement contradicts the notion that a traffic stop had ended and a voluntary encounter begun. If Cleverly was truly free to leave, he was free to have a third party come get him.

The Court of Appeals looked at other circumstances that it felt counseled in favor of finding a voluntary encounter. For instance, it said that the presence of three officers at the scene—two of whom arrived as backup—was not “a threatening presence of several officers.” Cleverly, 2015 WL 4716231, at *5. To the contrary, “[t]his court has also noted that the presence of more than one police officer may strongly suggest ‘a coercive atmosphere.'” Spagnola, 295 Kan. at 1108 (quoting State v. Thomas, 291 Kan. 676, 686, 246 P.3d 678 [2011]). Likewise, the other factors listed by the panel, such as absence of aggressive language or tone, displayed weapons, or that the patrol car’s emergency lights were not left on, are not compelling.

In sum, we hold that the totality of the circumstances does not support the State’s theory that Cleverly voluntarily consented to prolonging his traffic stop detention beyond the time that the State agrees the detention ended, i.e., after the issuance of a traffic citation to the driver, Jones. Consequently, when the police officer requested consent to search the cigarette packages, Cleverly was unlawfully seized.