The case before the Kansas Supreme Court was whether police could use evidence against Gerald E. Cleverly Jr. obtained at a traffic stop at 1:15 a.m. on January 30, 2012. Cleverly was a passenger in the pickup police stopped. Police cited driver Chris Jones for no proof of insurance.
At this point, one wonders why two officers from the El Dorado, Kansas, police department have nothing better to do in the wee hours of a winter's morn than check cars for proof of insurance.
Of course, they were after more. They asked questions. Sought permission to search Jones and Cleverly.
From the court decision:
Prior to Officer Buckley's search of the vehicle, Officer Humig directed Cleverly to exit the vehicle and subjected him to a nonconsensual, involuntary pat-down search. That search produced no evidence. The officer then directed Cleverly to stand in front of Officer Buckley's vehicle during the search of Jones' vehicle. Cleverly placed the items he had carried out of the vehicle, including two packs of cigarettes and his cell phone, on the hood of the patrol car. Officer Humig and Cleverly engaged in conversation during Officer Buckley's vehicle search, and, at some point, Cleverly asked for, and was granted, permission to smoke. But Officer Humig denied Cleverly's request to make a call on his cell phone.At this point, Jones and Cleverly should have asked for a lawyer.
But they did not.
The court continued:
Despite later testifying that he had no articulable facts suggesting that Cleverly had committed any crime, Officer Humig interrogated Cleverly, specifically seeking incriminating evidence as to whether Cleverly possessed marijuana, cocaine, or methamphetamine. Then, the officer requested consent to search Cleverly's person again. This second, more thorough, search did not produce any drugs or other incriminating evidence. Officer Humig then asked Cleverly if the officer could search the items on the patrol car hood, particularly the cigarette boxes because "this is where kids like to hide their weed these days." Cleverly handed the cigarette packages to the officer. One cigarette package was unopened, but the other had three small baggies behind the foil lining, two of which contained a white crystalline substance later confirmed to be methamphetamine.Cleverly got arrested and got a lawyer, who argued that a traffic stop for proof of insurance should not lead to a drug bust, especially as the search violated his Fourth Amendment rights.
Nearly five years after the arrest, the Kansas Supreme Court agreed -- after a judicial panel ruled against Cleverly.
Now of course courts in the United States uphold the Bill of Rights several times a year, but it was this passage that drove me to write this missive:
Because the panel found a transition to a voluntary encounter, it did not discuss the purpose and flagrancy of official conduct in extending the detention beyond that permitted by the traffic stop. The panel only addressed the unconstitutional pat-down, describing it as "technically illegal" and declaring that it was not flagrant and its purpose was valid, even though it did not fit into a recognized exception to the warrant requirement.
To the contrary, the individual rights assured to all citizens through the Bill of Rights of the United States Constitution are not inconvenient technicalities designed to irritate governmental agents.
Moreover, if a search is unconstitutional, it is illegal, and its purpose cannot be labeled "valid." Just shy of a half-century ago, the United States Supreme Court declared that "there can be no question, then, that [the law enforcement officer] 'seized' petitioner and subjected him to a 'search' when he took hold of him and patted down the outer surfaces of his clothing." Terry, 392 U.S. at 19. Given that Officer Humig testified that, from his point of view, Cleverly was not being detained and that "[i]t was a consensual encounter," his seizure and search of Cleverly was a flagrant violation of long-standing constitutional law.Got that? Just in case you don't, let me repeat the heart of the decision:
To the contrary, the individual rights assured to all citizens through the Bill of Rights of the United States Constitution are not inconvenient technicalities designed to irritate governmental agents. Moreover, if a search is unconstitutional, it is illegal, and its purpose cannot be labeled "valid."The Constitution protects citizens from the government trampling on their God-Given Rights.
Make no mistake, I support the police, believe drug laws need enforcement, and believe in strong sentences.
But in this case, the police overstepped their authority.
The decision is here.
UPDATE. From comments: "If the officer had not patted the perp down and missed a concealed gun with the which he then shot the officer, would the court have backed him up? No because he committed a crime but the cop would be dead. C'est la vie, right?"
Wrong. A suspicion of a concealed weapon warrants a patdown and you had better cooperate. But if instead of a gun they find weed, I do not see that as admissible in court.
Traffic stops and domestic violence cases are the deadliest threats an officer faces.
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