Article from: www.thenewspaper.com/news/48/4853.asp
12/15/2015Kansas: Feigned Concern Does Not Justify Traffic Stop
Kansas Court of Appeals says cops cannot stop cars by pretending to be concerned about the welfare of the driver.
Police must not pretend to "help" motorists in order to write a ticket or make an arrest, the state Court of Appeals said Friday. A three-judge panel used the case of Carlos Eduardo Martinez Morales to send a message to law enforcement by affirming a lower court judge's decision to set Morales free.
It was around 2:30 in the morning on November 22, 2014 when Reno County Sheriff's Department Deputy Travis Vogt spotted Morales parked on the side of K-96 highway. The lawman's suspicions were aroused because it was a rural area and the car's lights were on. As Deputy Vogt approached, Morales stepped on the brakes and prepared to leave. Deputy Vogt hit his emergency lights to keep that from happening, even though Morales had not violated any laws.
Deputy Vogt walked up to Morales and asked whether "everything was okay." The officer claimed he smelled alcohol and had the man perform two sobriety tests. Morales passed one and failed the other. He was charged with driving under the influence of alcohol (DUI), but the trial judge threw out the evidence gathered as a result of the traffic stop because the judge did not believe it was really a "welfare check" as the deputy claimed.
"It's our department's job to check on any vehicles that are either parked along side of the roadway, abandoned, basically to check to make sure if they are occupied, everything is okay, they're not having mechanical problems," Deputy Vogt testified. "If a vehicle is out in this area, you know, out in, in a rural area like that, to make sure they're not stolen or, or a part of some other crime that we would get a hit off of by running the tag, something like that."
Here, the car was clearly not abandoned, but the deputy did run the license plate to check whether it was stolen. This, the appellate court concluded, was proof that this was an investigation, not a safety stop. The three-judge panel quoted a lengthy story to make the point that this was unacceptable.
"The fallacy of letting officers masquerade an investigatory stop as a public safety stop is perhaps better answered by logic than by legal precedent," Judge Henry W. Green Jr wrote for the court. "An example of this is a story told of President Abraham Lincoln during his days as a trial lawyer. Lincoln is credited with cross-examining a witness in the following way:
"'How many legs does a horse have?'
"'Four,' said the witness.
"'Right', said Abe.
"'Now, if you call the tail a leg, how many legs does a horse have?'
"'Five,' answered the witness.
"'Nope,' said Abe, 'callin' a tail a leg don't make it a leg.'"
So police in Kansas may not justify an investigatory stop by calling it a public safety stop. A copy of the ruling is available in a 220k PDF file at the source link below.
Source: Kansas v. Morales (Court of Appeals, State of Kansas, 12/11/2015)
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