{"id":3393,"date":"2010-03-21T07:13:53","date_gmt":"2009-09-21T03:12:42","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-09-20T10:28:56","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3393","title":{"rendered":"KS: Community caretaking function here was pretext for investigation"},"content":{"rendered":"

The Court of Appeals (State v. Marx, 38 Kan. App. 2d 598, 171 P.3d 276 (2007)) was correct that the community caretaking function cannot be a pretext for an investigative stop. State v. Marx<\/a>, 289 Kan. 657, 215 P.3d 601 (2009).<\/p>\n

Defendant was detained because he was put in the back of a police car and was not told he was free to leave. Nevertheless, he could still validly consent. State v. Kemp<\/a>, 2009 OK CR 25, 217 P.3d 629 (2009).*<\/p>\n

Officers were able to position themselves to look in windows of defendant’s property as they approached for safety purposes on this record. State v. Foster<\/a>, 347 Ore. 1, 217 P.3d 168 (2009), rev’g State v. Foster, 219 Or App 276, 182 P3d 262 (2008):<\/p>\n

In this case, the deputies had a reasonable suspicion that they were about to encounter circumstances in which (1) there might be as many as 10 occupants of the residence, (2) those occupants might be armed, and (3) the occupants might be willing to use force against the deputies. There was an open, lighted window some 20 feet past the front door; Hardison went to look through that window in order to “keep[] an eye on the residen[ts] inside the house” while the deputies served the restraining order. By doing so, Hardison would have been able to warn the other deputies if an occupant either was armed or had begun arming himself when the deputies knocked. Under those circumstances, we agree with the trial court that Hardison’s actions were within the range of reasonable precautions that the officers were entitled to take against the anticipated threat.<\/p>\n

The Court of Appeals appears to have reached a contrary conclusion because it applied a more demanding test to the deputies’ actions. The issue, that court stated, was whether the state had “identif[ied] sufficient, articulable facts to show that officer-safety concerns required Deputy Hardison to position himself [where he did,] *** as distinguished from a different location that could ensure officer safety.”<\/em> Foster, 219 Or App at 284 (emphasis added). That test misreads both the officer safety doctrine and Bates, which explained the doctrine. The requirement of specific, articulable facts relates only to whether an officer reasonably suspected an immediate threat. See Bates, 304 Or at 524 (“a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury”). [emphasis in original]<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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