KY COA Dec 7 - Brooks- 4th Amendment

Commonwealth v. Brooks, 2011-CA-002075

Police obtained consent, in writing, to search a home.  Several people were in the home and secured at the time.  Police found a purse in the basement.  They searched the purse and found drugs.  The trial court suppressed the evidence.  The Kentucky Court of Appeals upheld the suppression.  They stated that the third party consent to search the home did not extend to the purse found in the basement and there was no exception to the warrant requirement in this situation.

Contributed by John Landon

Featured Case - West - Traffic Stops and Consent to Search

 Kevin West v. Commonwealth

Court of Appeals, 2010-CA-001477-MR

Fred A. Stine, Judge, Campbell County

Before: Clayton, Stumbo, and Thompson

To-be-Published, Vacating and Remanding

Opinion by Judge Clayton

            After a routine traffic stop based on expired tags, Officer Dunn ascertained that there were no warrants or other problems relating to West and his passengers.  But the passengers’ attire was unusual, a female passenger did most of the talking, and she lied about where they were coming from.  After the warrant check was complete, because he was curious, Officer Dunn asked West to step from the vehicle.  West then admitted he had nine-and-a-half Percocets.  

Held:  The above facts did not give rise to a reasonable and articulable suspicion of criminal activity.  It would have been legal for the officer to ask West to step out as a safety precaution while checking on warrants. Pennsylvania v. Mimms, 434 U.S. 106, 111, n. 6 (1977).  But the warrant check was complete when the officer asked West to step out.  The officer had observed no new behavior and learned no new facts in addition to what he had noted during the course of the stop.  The subsequent detention was not “reasonably related in scope to the circumstances that justified the interference in the first place.” Epps v. Commonwealth, 295 S.W.3d 807, 812 (Ky. 2009).

Practice tip:  West argued below that the Commonwealth didn’t prove voluntary consent to leave the vehicle because any reasonable person under the circumstances would not feel free to refuse the officer’s request.  But the COA more properly decided the issue as a question whether there was reasonable suspicion to continue or expand the detention.  Involuntariness of consent is tough to establish.  Watch for moments in traffic stops where one detention ends and a new detention begins.  There must be new grounds for a new detention.  

Contributed by Susan Balliet