The Kansas Court of Appeals and Supreme Court typically releases new decisions every Friday morning. This week, we had an asset forfeiture case come before the appeals case.
The case, titled State v. One 2008 Toyota Tundra (in forfeiture cases, the assets subject to forfeiture are named as the Defendant) involved a truck, cash, and marijuana seized in a traffic stop on I-70 in Geary County. The Geary County Sheriff’s deputy pulled the Tundra over for a partially obstructed license plate. While doing the standard license, registration, and insurance check, he asked the driver and passenger about their travel plans. Based on their answer (that they were going from Ohio to Las Vegas) the deputy suspected they were running drugs. After the license check came back, the deputy requested an additional criminal check on the driver, buying him enough time to have his dog, Scooby, sniff the truck.
At this point in the opinion, justice Anthony Powell managed to insert a stealth pun:
At the 8:54 mark, what did Scooby do? Scooby indicated the presence of drugs at the truck’s rear passenger-side corner of the tailgate area.
In the forfeiture proceedings at the district court, the truck’s passenger filed a motion to suppress the stop, claiming that the stop should have ended when the registration check came back, and that the extended background check and dog sniff constituted an unreasonable search and seizure. The district court granted the motion, the state appealed, and the Court of Appeals affirmed the suppression.
This week, the Kansas court of appeals released This opinion in the case of State v. Guein. In the majority opinion, Justice Steve Leben inserted the following caution before getting into the legal terminology:
We want the reader to know that we do recognize that some of the language in our opinion is vulgar enough that it cannot be used on over-the-air television shows. Yet we have used it in a published judicial opinion. We do so because this language carries a certain force that’s not necessarily apparent if we rephrase it. We must judge the effect of the words said — in this case by a police officer — on the person in handcuffs who heard them. To make that judgment and to explain our decision, we must repeat the actual words used and place them in the context in which they were said.
With that introduction, we turn now to the factual and procedural setting in which these issues are presented. We will then address each of the three legal issues Guein raises on appeal, only one of which is successful.
In a nutshell, two Lenexa PD officers observed what they suspected to be a purchase of illegal drugs. They approached the vehicles and were able to detect an odor of marijuana coming from them. After an initial patdown, the defendant was cuffed and given his Miranda warning. After this is when the proverbial f-bombs started dropping. The Court of Appeals ruled 2-1 that the officer’s language amounted to a verbal threat of physical harm which “Effectively Negated the Miranda Warning,” and that statements made and evidence gathered after the officer used such language must be suppressed. The court also ruled that use of the evidence in question could have affected the outcome of the case, reversed the verdict, and remanded for a new trial.
The dissenting judge, Kathryn Gardner, disagreed with the notion that the language was threatening and would affirm the trial court. Some of her arguments in her dissent were responded to in Leben’s opinion.