CAN WE KEEP EVIDENCE OUT OF COURT IF CONSENT TO A SEARCH IS NOT GIVEN FREELY AND VOLUNTARILY?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Spagnola, 289 P.3d 68 (Kan. 2012).
This case answers the following question:
What happens if consent to a search is not given freely and voluntarily?
The issue in this case is whether a normal, reasonable person would have felt free to refuse the officer’s request. In order for a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given; and (2) the consent must have been given without duress or coercion, express or implied.
In 2007, an officer observed a car, driven by Spagnola, drive through an intersection without stopping for a stop sign. In addition, the officer noticed that when Spagnola went to pull over, the car rolled onto the curb and into a grassy area next to the curb and then back off the curb before stopping. When the officer approached the car, he saw Spagnola reach down toward his right side, as if reaching into a pocket or the car console. The officer requested backup concerned that Spagnola might have a weapon. Once backup arrived, the officer had Spagnola step out of the vehicle, and that is when the officer noticed that Spagnola had a small clip-on knife in one of his pant pockets. The officer asked if Spagnola had any illegal items on his person and requested to search Spagnola’s pockets. Spagnola gave the officer permission, and the officer found some baggies of methamphetamine in a zipper pocket behind the right cargo pocket in Spagnola’s pants. Spagnola moved to suppress the evidence seized during the search, but the trial court denied the motion and found Spagnola guilty. The Court of Appeals affirmed.
In the course of an investigatory detention, a police officer may conduct a pat-down search for weapons that might pose a danger to the officer. In this case, the officer was justified in a pat-down search given that he had a legitimate concern about the possibility of weapons on Spagnola’s person. However, when the officer searched Spagnola’s pockets, he exceeded the scope of his authority. An officer only has the authority to investigate in the lest intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time. In this case, it is evident that the officer did not use the least intrusive means available to dispel the suspicion of a threat.
In order for a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given; and (2) the consent must have been given without duress or coercion, express or implied. In determining whether a citizen’s encounter with police is voluntary, the court has established a nonexclusive list of factors including the presence of more than one police officer, the display of a weapon, physical contact by the police officer, use of a commanding tone of voice, activation of sirens or flashers, a command to halt or to approach, and an attempt to control the ability to flee. In this case, when Spagnola gave consent for the search, he was placed in a prone position with his hands behind his head and his back to multiple officers. In this position, consent to the search was not voluntarily given free from coercion.
The pocket search exceeded the allowed scope, and Spagnola’s consent was given in a coercive environment. Therefore, the search violated the constitutional protection against unreasonable searches, and the evidence obtained from that search should be suppressed. The judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded.