Post details: KS: Taking a DL to run wants and warrants was unreasonable; RS needed

05/17/13

Permalink 02:51:19 pm, by fourth, 746 words, 1034 views   English (US)
Categories: General

KS: Taking a DL to run wants and warrants was unreasonable; RS needed

Holding a motorist's DL longer than necessary "to know who they're dealing with" and then running warrants for curiosity was unreasonable because it extended the stop. State v. Moralez, 297 Kan. 397, 300 P.3d 1090 (2013):

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During what began as a voluntary encounter, two law enforcement officers retained Joseph Moralez' identification card and detained him while conducting a warrants check, all without any reasonable suspicion of criminal activity by Moralez. After discovering an outstanding warrant for Moralez, officers arrested Moralez and seized marijuana from his pocket. The State charged Moralez with felony possession of marijuana, and Moralez sought to suppress the marijuana as the fruit of an unlawful detention. The district court denied the motion and subsequently convicted Moralez as charged. On direct appeal, a divided panel of the Court of Appeals affirmed the district court's suppression ruling and Moralez' conviction. State v. Moralez, 44 Kan. App. 2d 1078, 242 P.2d 223 (2010), rev. granted 292 Kan. 968 (2011). We granted Moralez' petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).

We conclude the officers unlawfully detained Moralez when they retained his identification card and ran a warrants check without reasonable suspicion of his involvement in criminal activity. Further, we clarify our opinion in State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880 (2008), regarding the effect of the discovery of an outstanding arrest warrant during an unlawful detention. Ultimately, we hold that under the facts of this case, the officers' discovery of Moralez' outstanding arrest warrant did not sufficiently purge the taint of his unlawful detention. Accordingly, we reverse the Court of Appeals' decision affirming the suppression ruling, reverse the district court's suppression ruling, reverse Moralez' conviction, and remand for further proceedings.

. . .

But to determine whether this voluntary encounter remained voluntary, we shift our focus to the officer's request for and retention of the defendant's identification.

. . .

We have recognized that a law enforcement officer's mere request for identification or identifying information generally will not constitute a seizure. See Pollman, 286 Kan. at 888; State v. McKeown, 249 Kan. 506, 509, 819 P.2d 644 (1991) (recognizing generally that an officer may, without reasonable suspicion, approach an individual on the street and "request identification but cannot force the individual to answer").

In contrast, we have held that an officer's retention of an individual's identification "may, absent offsetting circumstances, mean a reasonable person would not feel free to leave without his or her license." (Emphasis added.) Pollman, 286 Kan. at 889. Thus, in Pollman we held that an officer's retention of identification is one factor to be considered in applying the totality of circumstances test. See also United States v. Guerrero, 472 F.3d 784, 786-87 (10th Cir. 2007) (noting that mere examination of one's driver's license does not constitute detention, but "once the officers take possession of that license, the encounter morphs into a detention"); United States v. Lopez, 443 F.3d 1280, 1285-86 (10th Cir. 2006) (concluding officer unlawfully detained defendant by retaining his license longer than necessary to confirm his identify when officer approached defendant in a high-crime area late at night, requested his identification and took defendant's license to patrol car to conduct warrants check); United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995) (concluding that voluntary encounter, including request to examine identification, became investigative detention when agents received defendant's driver's license and did not return it to him).

Here, although the record does not clearly delineate the sequence of events during the encounter, it is undisputed that at some point Whisman obtained Moralez' identification card because Whisman "[j]ust want[ed] to document who [he] talked to." Moreover, we cannot discern from the record how long Whisman retained Moralez' identification card. But, as in Lopez, we know he did so longer than necessary to "document" speaking with Moralez. ...

Under these circumstances, we conclude Whisman seized Moralez when Whisman requested and took possession of Moralez' identification card and then retained it while running a check for outstanding warrants. Further, because Whisman did not suspect Moralez of involvement in any criminal activity, the seizure was unlawful. ...

In State v. Williams, 101617 (Kan. May 17, 2013), the same court held that the question of attenuation favored the citizen:

Further, applying the attenuation analysis from State v. Martin, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880 (2008), as clarified in State v. Moralez, 297 Kan. ___, ___ P.3d ___ (No. 102,342, this day decided), we hold the officers' discovery of an outstanding arrest warrant during Williams' unlawful detention did not purge the taint of that unlawful detention. Accordingly, we reverse the Court of Appeals' decision and affirm the district court's suppression ruling.

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