Unconstitutional Search

Unconstitutional Search  

The Fourth Amendment of the Constitution protects persons against “unreasonable searches and seizures.”  If a police officer has lawfully stopped (i.e. seized) a person and then conducts a search, the issue become whether the search was reasonable in relation to the stop.  Specifically, courts must consider whether the search as conducted was reasonable in scope or consent was freely and voluntarily given for the search.  State v. Spagnola, 289 P.3d 68, 73 (Kan. 2012).

In June of 2007, Officer Jones lawfully stopped Shuan Spagnola when he failed to stop for a stop sign.  Id. at 70.  When pulling his vehicle over, Spagnola drove the car “onto the curb and into a grassy area next to the curb and then back off of the curb before coming to a complete stop.”  Id.  Additionally, before approaching Spagnola Jones witnessed him reach down towards the car console – “suggesting the presence of a weapon and danger to law enforcement.”  Id. at 70, 73.  Jones then asked Spagnola to exit the vehicle and for his consent to search his pockets, which Spagnola gave.  Id. at 71.  Jones found baggies in zipped pocket that contained methamphetamine.  Id. 

The Kansas Supreme Court found that Jones had legitimately stopped Spagnola when he violated the law by not stopping at the stop sign.  Id. at 73.  Moreover, the court found that Jones reasonably prolonged the stop because he had reason to believe Spagnola was impaired and had a weapon.  Id.

However, the court found that Jones’s thorough search of Spagnola’s pockets was unreasonable and a thus a violation of Fourth Amendment protections because a warrantless search for weapons on a person must be limited to a pat-down of the outer clothing.  Id. at 74.

Furthermore, in regards to consent, the court held that Spagnola could not have possibly given free and voluntary consent for the search of his pockets – as is required – because “standing with his back to the offices, with his hands behind his back and his fingers interlaced… was not a posture or an environment in which it can be said that consent was voluntarily given free from coercion.”  Id. at 76.

If you any questions regarding a search resulting from a traffic stop, contact Lindsey Erickson or Dionne Scherff, LLC at www.ericksonscherff.com for counsel.

 

For More Information Please Contact:

Erickson Scherff, LLC
Attorneys at law
10990 Quivira  Suite 200
Overland Park, KS 66210
Tel (913) 948-9490
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