Monday, January 30, 2012

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