12/17/2014Kansas Court Declares Plastic Bags Suspicious
Kansas Court of Appeals upholds the search of a vehicle based solely on the presence of a ripped plastic baggie.
The second highest court in Kansas declared last week that anyone driving with a torn plastic baggie is most likely involved in the drug trade and can be searched without a warrant. The state Court of Appeals came to this conclusion in upholding the conviction of Cameron Howard, who was found not with drugs but a lawfully purchased firearm.
On September 15, 2011, Prairie Village Police Officer Chad Loughman pulled Howard over. In the car's cupholder, Officer Loughman spotted a plastic baggie with a rip in the corner, and he noticed that the passenger seat was reclined (Howard's passenger was pregnant). The bag and reclined seat, the officer insisted, provided reasonable suspicion that criminal activity was involved.
"My training and experience with drugs and transportation of illegal drugs, that is a common practice that people wrap marijuana in particular in cellophane baggies and twist the baggies several times to keep it secured," Officer Loughman testified.
The three-judge panel rejected the idea that reclining is suspicious, but it upheld the plastic bag's significance.
"Like one-hitter boxes or tape-wrapped baseballs, people don't often carry baggies with torn corners, and Howard hasn't cited a common, legal use for baggie corners," Judge Steve Leben wrote for the court. "In the absence of another purpose, the torn corner in this case indicates that the baggie had been used to store illegal drugs, even though the police didn't smell marijuana or observe that Howard or his passenger appeared to be under the influence of drugs."
The search for drugs only turned up an AK-47, which Howard bought in Missouri after passing a federal background check. He was in full compliance with federal and state law to buy the weapon, but there was a complication. In 2006 Howard had pleaded guilty to burglary in Missouri. He never served time as the judge suspended his sentence as part of a diversion agreement that kept Howard from being considered a convicted felon -- in Missouri. Howard did not realize that Kansas does not accept this agreement.
The Court of Appeals expanded upon a Kansas Supreme Court decision to declare Howard a convicted felon according to Kansas standards. While the US Supreme Court allows police to be wrong about the law as long as their actions are objectively reasonable, Kansas offers no such leniency to motorists.
"Even if Howard thought he was not a felon, that would not have negated his general intent to possess the firearm," Judge Leben wrote. "The state did not have to prove that Howard knew about Kansas law regarding his felon status, and the evidence that he lawfully purchased the gun (as a nonfelon in Missouri) was neither probative nor material in his case."
The court upheld Howard's new felony conviction for being a felon in possession of a firearm. A copy of the decision is available in a 75k PDF file at the source link below.