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

Featured Case - Ward - Traffic Stop and Automobile Search

Ward v. Commonwealth, 10-CA-000732, Court of Appeals 

TO BE PUBLISHED

In Ward, an officer testified that he stopped a car after he witnessed it make a right turn without stopping at a stop sign.  The officer claimed that the two men inside appeared nervous and he recognized them as persons with “known drug violations.”  When the officer requested identification, the other occupant (Garner) gave his driver’s license.  Ward only gave the officer his Social Security number.  It took the officer five to ten minutes to run an identification check due to, according to the officer, Ward only giving his Social Security number.  After learning that no warrants were outstanding, the officer returned to the car.  Eight to ten minutes had transpired to this point and the officer had yet to write the traffic citation.  The officer asked Ward for permission to search the car.  Ward refused.  The officer had a canine unit in his car and conducted a canine search.  Methamphetamines were discovered in the car. 

On appeal, Ward argued that the duration of the traffic stop was unreasonably extended by the canine search.  The Court disagreed.  The Court determined that the eight to ten minutes between the stop of the vehicle and the canine search beginning and the total of twenty to twenty-five minutes from the time of the initial stop to the dog’s alerting on the vehicle was not unreasonable and, therefore, not a violation of the Fourth Amendment.

Contributed by Brandon Pigg