observing that scholarly criticism of Schneckloth "is valid in many respects" and that, if the court were free to adopt different rule, it "would consider a different paradigm," but also noting that it was not free to depart from Schneckloth in light of prior Kansas decisions concluding that Kansas constitution's analogue to fourth amendment was coextensive with federal constitution
How later courts described this case
- observing that scholarly criticism of Schneckloth "is valid in many respects" and that, if the court were free to adopt different rule, it "would consider a different paradigm," but also noting that it was not free to depart from Schneckloth in light of prior Kansas decisions concluding that Kansas constitution's analogue to fourth amendment was coextensive with federal constitution
- finding voluntary encounter where officer's conduct conveys to a reasonable person that he was free to refuse the officers' requests or otherwise terminate the encounter
- holding Kansas state courts are not required to follow decisions of federal circuit courts
- finding no seizure where defendant was stopped for broken headlight, and officer, after issuing verbal warning and disengaging with defendant, turned and asked defendant if he could ask further questions
Written by the judges who cited it.
Distinguished
Distinguished by State v. Morlock, 40 Kan. App. 2d 216 (2008)
However, Thompson is distinguishable from the present case because at the point of requesting consent in Thompson, there had been no “taint” of the encounter.
The opinion
Beier, J.,
dissenting: I respectfully dissent and would reverse and remand.
I do not share the majority’s confidence that the phoenix of a voluntaiy police-citizen encounter arose out of the ashes of the traffic stop of defendant Thompson.
As the majority notes, an appellate court gives deference to the factual findings of a district judge ruling on a motion to suppress; however, appellate judges draw an independent conclusion on the ultimate legal issue of whether suppression was appropriate. See State v. Fisher, 283 Kan. 272, 280 , 154 P.3d 455 (2007).
The majority also notes correctly that the State bears the burden of demonstrating that a warrantless search was constitutional. See State v. Anderson, 281 Kan. 896, 901 , 136 P.3d 406 (2006). Here, the only potentially applicable exception to the warrant requirement is consent. See State v. Rupnick, 280 Kan. 720, 727 , 125 P.3d 541 (2005) (listing exceptions to warrant requirement). The State had to present sufficient evidence for us to arrive at the conclusion that defendant gave a valid consent before the officer searched defendant’s vehicle.
Before reaching the issue of the consent to search, the majority holds that die nighttime traffic stop at issue here had become a *814 voluntary police-citizen encounter. The record on appeal demonstrates that the officer returned defendant’s driver’s license and told him to have a nice day; the officer then turned, took one step toward the rear of the vehicle, and immediately turned back around to return to the driver’s side window and inquire of defendant, “Mind if I ask you a couple of questions?” This series of actions by the police officer, at night, with the emergency lights of the police car still activated, in the majority’s view, would have led a reasonable person in defendant’s position to understand he was free to say no to additional questioning and no to the officer’s subsequent request to search and then be on his merry motorist way. The majority thus concludes that the totality of the circumstances supports its conclusion of a voluntary police-citizen encounter following on the heels of a traffic stop, despite its repeated recognition that there was no “clear” signal or communication that the character of the interaction had changed.
Especially given the burden of proof placed on the State, I think the majority expects far too much chutzpah from a person in defendant’s position. I certainly would not rule that a traffic stop can never be converted into a voluntary encounter, but I would require more than the totality of the circumstances demonstrates here.
Because I would hold that the nature of the encounter did not change, the detention of defendant beyond the time necessary to effectuate the purpose of the traffic stop violated his rights under the Fourth Amendment to the United States Constitution. See State v. DeMarco, 263 Kan. 727, 733-34 , 952 P.2d 1276 (1998). In order for us to determine whether defendant’s consent to the vehicle search was nevertheless valid, tire State would have to show that the passage of time or some other event or circumstance purged the taint of the unconstitutional detention. See State v. Grace, 28 Kan. App. 2d 452, 460 , 17 P.3d 951 , rev. denied 271 Kan. 1039 (2001) (citing United States v. Mendoza-Salgado, 964 F.2d 993, 1011 [10th Cir. 1992]). Because it has not done so on the record before us, I, like the Court of Appeals panel, would reverse and remand for further proceedings in the district court.
Rosen, J., joins the foregoing dissenting opinion.