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State v. Thompson

September 7, 2007

STATE OF KANSAS, APPELLEE,
v.
DENNIS W. THOMPSON, APPELLANT.



Review of the judgment of the Court of Appeals in 36 Kan. App. 2d 252, 138 P.3d 398 (2006). Appeal from McPherson district court; CARL B. ANDERSON, JR., judge. Judgment of the Court of Appeals reversing the district court is reversed on the single issue subject to our grant of review, and the case is remanded to the Court of Appeals for consideration of remaining issues. Judgment of the district court is affirmed on the single issue before us.

SYLLABUS BY THE COURT

1. When reviewing a trial court's denial of a defendant's suppression motion, appellate courts review the factual underpinnings using a substantial competent evidence standard. But the ultimate legal conclusion drawn from such facts is a question of law subject to de novo review.

2. The State has the burden of proving that a search and seizure was lawful.

3. The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights assure each person's right to be secure in his or her person and property against unreasonable searches and seizures.

4. The question of whether there is a seizure arises in the context of one of four types of encounters with law enforcement officers: consensual encounters, which are not considered seizures; investigatory detentions pursuant to Terry v. Ohio, 392 U.S. 1, 18, 20 L. Ed. 2d 889, The opinion of the court was delivered by: Luckert, J.

MODIFIED OPINION

Modified opinion filed October 17, 2007.

Dennis W. Thompson seeks to suppress evidence seized during warrantless searches of his vehicle and garage. Thompson consented to both searches after a law enforcement officer stopped Thompson for a traffic infraction, gave Thompson a verbal warning, told Thompson to have a nice day, and then asked whether Thompson would answer a few more questions. Thompson said "yes" to that initial question and, once again, when asked if the officer could search his vehicle. When evidence of drug use was discovered in the vehicle, Thompson was Mirandized and consented to a search of his garage.

Thompson argues evidence obtained during the warrantless searches should be suppressed because he was detained beyond the permissible scope of a traffic stop and did not voluntarily consent to the searches. The State argues the traffic detention ended before a request was made to search the vehicle, a voluntary encounter ensued, and Thompson voluntarily consented to both searches.

The trial court denied Thompson's motion to suppress, finding that Thompson was not seized at the time he consented to the search of his vehicle and, therefore, his "Fourth Amendment rights do not come into play." On direct appeal in State v. Thompson, 36 Kan. App. 2d 252, 260-61, 138 P.3d 398 (2006), the Court of Appeals panel reversed, holding in part "that Thompson submitted to a claim of lawful authority rather than consented to a voluntary act."

We granted the State's petition for review in which the State argues the panel's decision is in "direct conflict" with decisions of the Tenth Circuit Court of Appeals and creates "an untenable situation for the uniform administration of justice and provides confusing and inconsistent rules for law enforcement." Also, the State argues the panel's reasoning misapplies decisions of the United States Supreme Court. The amicus curiae Kansas Highway Patrol raises similar concerns.

We conclude that under the totality of circumstances test developed by the United States Supreme Court and previously applied by this court, the traffic stop terminated and Thompson voluntarily consented to a continuation of the encounter and to the searches. We affirm the trial court and reverse the Court of Appeals on the single issue before us.

Facts and Procedural History

On the night of May 26, 2004, Thompson was stopped within the city limits of McPherson after Officer Weinbrenner saw that Thompson's sport utility vehicle had a faulty headlight. Thompson pulled over in an alley, and the officer pulled in 10 or 15 feet behind him. The emergency lights on the police car remained activated. Weinbrenner asked for Thompson's driver's license and insurance documentation and then ran the license through police dispatch.

Meanwhile, as part of his routine during nighttime traffic stops, Weinbrenner called for a back-up officer to come to the location. Officer Michaels arrived as back-up and parked behind Officer Weinbrenner's patrol car. Officer Michaels did not approach Thompson's vehicle or have any direct contact with Thompson. Just before returning Thompson's driver's license to him, Officer Weinbrenner, while standing near the patrol cars and away from Thompson, told Officer Michaels he was going to ask Thompson for consent to search his vehicle. Weinbrenner had information that Thompson had previously been involved with illegal drugs.

Then, Officer Weinbrenner returned Thompson's driver's license, issued a verbal warning, and told Thompson to have a nice day. Weinbrenner told the trial court that he started to walk away after issuing Thompson the warning but then returned within a second or two and asked, "By the way, can I ask you a few questions?"

The trial judge found that there was "no disengagement" before the officer asked for Thompson's consent to additional questioning:

"A careful viewing of the tape reveals that [the officer] did not leave the vicinity of the defendant after telling him to have a good day, but rather, immediately after the defendant had stated thank you to [the officer], he asked the defendant if he could ask him some additional questions. I do not believe there can be any question but that [the officer] did not disengage the defendant before asking his follow up questions."

The subsequent questioning resulted in Thompson saying Officer Weinbrenner could search his vehicle. When that search yielded assorted drug paraphernalia and a baggie containing a powder residue, Weinbrenner Mirandized Thompson and placed him under arrest. After indicating that the items came from his garage, Thompson subsequently granted authorities written permission to search his garage where numerous items of manufacturing paraphernalia were found.

The State charged Thompson with seven counts: (1) manufacture of methamphetamine in violation of K.S.A. 65-4159, a severity level 1 drug felony; (2) possession of ephedrine or pseudoephedrine as a precursor in violation of K.S.A. 65-7006(a), a severity level 1 drug felony; (3) possession of lithium metal as a precursor in violation of K.S.A. 65-7006(a), a severity level 1 drug felony; (4) possession of methamphetamine in violation of K.S.A. 2006 Supp. 65-4160, a severity level 4 drug felony; (5) possession of drug manufacturing paraphernalia in violation of K.S.A. 65-4152(a)(3), a severity level 4 drug felony; (6) possession of marijuana in violation of K.S.A. 65-4162(a)(3), a class A misdemeanor; and (7) possession of drug use paraphernalia in violation of K.S.A. 65-4152(a)(2), a class A misdemeanor.

Before trial, Thompson filed a motion to suppress the evidence recovered from the search of his vehicle and garage, arguing that his consent was not voluntary. After hearing testimony, the trial court denied the motion. In reaching this conclusion, the judge examined the totality of the circumstances and found that Thompson had freely consented to the searches:

"[T]he encounter between Patrolman Weinbrenner and the defendant constituted a consensual encounter from and after the point in the stop that Patrolman Weinbrenner returned the driver[']s license to the defendant and told him to have a good day.

"In reaching this decision, I believe it is important that before asking additional questions: Patrolman Weinbrenner had returned the driver's license and other documentation to the defendant; the defendant was unaware of any other officers at the scene at the time he agreed to answer further questions; at no time during the stop did Patrolman Weinbrenner use coercive force or methods in dealing with the defendant; Patrolman Weinbrenner never displayed his weapon; never touched the defendant or his vehicle; and he never exhibited a tone of voice or attitude to the defendant that might lead a reasonable person to believe he could not leave the scene. Under these circumstances[,] I am satisfied that the defendant was not seized by Patrolman Weinbrenner at the time of the further questioning and therefore the defendant's Fourth Amendment rights do not come into play."

The jury found Thompson guilty of all seven counts as charged. The trial court sentenced him to a controlling term of 158 months' imprisonment on the primary offense of methamphetamine manufacture, a severity level 1 drug felony, and the remaining sentences were ordered to run concurrently.

Thompson appealed, raising several issues. The Court of Appeals panel agreed with Thompson's argument that the trial court erred in denying his motion to suppress evidence; the panel rejected Thompson's argument regarding sufficiency of the evidence and did not decide several other issues. Regarding the suppression issues, the panel concluded that Thompson submitted to a claim of lawful authority and determined that Thompson had no objective reason to believe that he was free to end his conversation with Officer Weinbrenner and drive away, even after the return of his driver's license. 36 Kan. App. 2d at 259-61.

A "paramount" consideration of the Court of Appeals panel was the trial court's express finding that there was "no disengagement" between the officer and Thompson. The panel commented that "the undetectability of any transition to a consensual encounter weighs heavily against an objective conclusion that the driver should believe that he or she was free to end the conversation and simply drive away, which is the touchstone of the proper analysis. [Citations omitted.]" 36 Kan. App. 2d at 259-60. In addition to the lack of "disengagement," the panel relied on the following factors in determining the encounter was not consensual: the officer expressed a prestop desire to seek consent to search Thompson's vehicle; the emergency lights of the patrol car remained activated when consent was given; and Thompson testified that he did not feel free to leave. 36 Kan. App. 2d at 260. In conclusion, the panel noted in part:

"At the heart of the Fourth Amendment is a strong requirement of specific justification for any intrusion upon protected personal liberty and security, coupled with a highly developed system of judicial controls to enforce the commands of our Constitution upon the agents of the State. Our court has experienced ever-increasing appeals with nearly identical fact patterns, indicating that there may be a perception in the field that a 'bright line rule' merely requires the return of documentation to cleanse additional questioning." 36 Kan. App. 2d at 261.

The case was reversed and remanded. 36 Kan. App. 2d at 261.

The State filed a petition seeking review of the Court of Appeals' ruling that the trial court erred in denying Thompson's motion to suppress. Thompson filed a cross-petition seeking review of the Court of Appeals' ruling that there was sufficient evidence to support his conviction for manufacture of methamphetamine. We granted the State's petition for review and denied Thompson's cross-petition. Therefore, the suppression of evidence will be the only issue considered. In broad terms, the determination of whether the evidence should be suppressed requires determination of whether Officer Weinbrenner's encounter with Thompson at the time consent was given was constitutionally permissible and whether Thompson's consent was voluntary.

General Principles

When reviewing the trial court's denial of a defendant's suppression motion, appellate courts review the factual underpinnings using a substantial competent evidence standard. But the ultimate legal conclusion drawn from such facts is a question of law subject to de novo review. State v. Jones, 279 Kan. 71, 73, 106 P.3d 1 (2005); see State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). The State has the burden of proving that a search and seizure was lawful. State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006); see State v. Moore, 283 Kan. 344, Syl. ¶ 1, 154 P.3d 1 (2007).

The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights assure each person's right to be secure in his or her person and property against unreasonable searches and seizures. Often, as in this case, an analysis of a motion to suppress will require examination of both the search and the seizure. Typically in such a dual issue case, determining the legality of the seizure is the first step of the analysis because the illegality of the detention can taint the consent and search. See State v. Reason, 263 Kan. 405, 415, 951 P.2d 538 (1997).

The question of whether there is a seizure arises in the context of one of four types of encounters with law enforcement officers: consensual encounters, which are not considered seizures; investigatory detentions, commonly known as Terry stops (see Terry v. Ohio, 392 U.S. 1, 18, 20 L.Ed. 2d 889, 88 S.Ct. 1868 [1968], and K.S.A. 22-2402); public safety stops; and arrests. State v. Parker, 282 Kan. 584, 588-89, 147 P.3d 115 (2006). The State argues that the encounter between Thompson and Officer Weinbrenner involved both an investigatory stop of the vehicle (detention) and, after the traffic stop ended, a consensual encounter.

As a general rule, all seizures must be reasonable, and the reasonableness of a seizure depends on the balance of the public interest and the individual's right to personal security free from arbitrary interference by law enforcement officers. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L.Ed. 2d 607, 95 S.Ct. 2574 (1975).

When it is alleged an investigatory traffic stop has turned into a consensual encounter, potential issues arise regarding the legality of: (1) the initial stop, i.e., whether the officer's action was justified at its inception; (2) the detention, i.e., whether the length and scope of the detention were reasonably related in scope to the circumstances which justified the interference in the first place; and (3) the continuation of the encounter beyond the point in time when the purpose of the traffic stop was fulfilled, i.e., whether the continuation was consensual or the officer gained a reasonable and articulable suspicion of illegal activity. See State v. Mitchell, 265 Kan. 238, 241, 960 P.2d 200 (1998) (traffic stop an investigatory detention; reasonableness of investigative detention determined by whether officer's action was [1] justified at inception and [2] reasonably related in scope to the circumstances which justified interference in the first place); Reason, 263 Kan. at 410-13 (encounter was voluntary initially, became an investigatory detention based upon reasonable suspicion, and again became voluntary when defendant was advised he was free to go).

The principles that define the constitutionality of the first stage of the encounter--the initial act of stopping a moving vehicle--are well established. The usual traffic stop is viewed as more analogous to a "so called 'Terry stop' than to a formal arrest." Berkemer v. McCarty, 468 U.S. 420, 439, 82 L.Ed. 2d 317, 104 S.Ct. 3138 (1984) (citing Terry, 392 U.S. 1). The stop is considered a seizure of the driver "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U.S. 648, 653, 59 L.Ed. 2d 660, 99 S.Ct. 1391 (1979); see Whren v. United States, 517 U.S. 806, 809-10, 135 L.Ed. 2d 89, 116 S.Ct. 1769 (1996); State v. Hopper, 260 Kan. 66, 69, 917 P.2d 872 (1996) (traffic stop always a seizure); K.S.A. 22-2402(1). Consequently, an officer must "'have a reasonable and articulable suspicion, based on fact, that the person stopped has committed, is committing, or is about to commit a crime.' [Citation omitted.]" State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998); see also State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991) (traffic stop always constitutes a seizure and, therefore, officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402 and Terry). Here, the officer observed a headlight infraction justifying the stop; Thompson does not argue otherwise.

Equally well established are principles regarding the second stage of the encounter--the permissible scope of the detention. In Kansas, a detention may not exceed the scope or duration necessary to carry out the purpose of the traffic stop. When conducting a routine traffic stop, an officer may request the driver's license and car registration, conduct a computer check, and issue a citation. DeMarco, 263 Kan. at 734; see also K.S.A. 22-2402 (officer may demand the person's name, address, and an explanation of the person's actions and may also frisk the person for weapons if necessary for the officer's personal safety). But cf. Illinois v. Caballes, 543 U.S. 405, 160 L.Ed. 2d 842, 125 S.Ct. 834 (2005) (drug sniff during traffic stop does not violate Fourth Amendment if it does not prolong stop).

If no information raising a reasonable and articulable suspicion of illegal activity is found during the time period necessary to perform the computer check and other tasks incident to a traffic stop, the motorist must be allowed to leave without further delay. Mitchell, 265 Kan. at 245; City of Norton v. Stewart, 31 Kan. App. 2d 645, 648, 70 P.3d 707 (2003). In Mitchell, for example, after the officer had confirmed the driver's license was valid and had shown the driver the radar reading, rather than write a citation, the officer began to question the driver about drugs. When the driver denied any current use of drugs, the officer asked, "Having that in mind, you wouldn't mind giving me permission to search the vehicle, then would you?" The driver refused permission to search, and the officer indicated he was going to call for a drug dog, which he did. This court invalidated the search, even though it was of short duration, as exceeding both the scope and temporal limits of a reasonable detention for a stop for speeding. 265 Kan. at 244-45.

Other cases suggest, however, that if the officer had terminated the traffic stop and then asked the questions about drug use, the analysis (at least to the point where the call was made for the drug dog) would require a determination of whether the encounter became consensual. For example, in DeMarco, after reiterating that "once the check confirms a proper license and entitlement to operate the car, the driver must be allowed to proceed without further delay or questioning," the court added that further questioning is permissible if "'(1) "the encounter between the officer and the driver ceases to be a detention, but becomes consensual, and the driver voluntarily consents to additional questioning," [citation omitted], or (2) during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity. [Citation omitted.]' [United States v. Mendez,] 118 F.3d [1426,] 1429-30 [(10th Cir. 1997)]." DeMarco, 263 Kan. at 734.

These two circumstances define the analysis of the third phase of the encounter--the continuation of the encounter after the purpose of the traffic stop is fulfilled.

There is no suggestion in this case the officer gained a reasonable and articulable suspicion that Thompson was engaged in illegal activity. Rather, the ultimate resolution of this case requires determination of whether, at the time the officer requested permission to search Thompson's vehicle, (1) the detention or seizure impermissibly extended beyond the scope of the purpose of the original stop and beyond the time necessary to accomplish that purpose or (2) the detention ended and there was a consensual encounter.

To determine if there is a seizure or a consensual encounter, the United States Supreme Court developed a "totality of the circumstances" test. The parameters, application, and purpose of this test will be discussed in more detail because application of the test determines the outcome of this appeal. Before engaging in that discussion, it is helpful to see how this piece of the puzzle fits into the entire analysis of our review of the motion to suppress. In summary, under the test, law enforcement interaction with a person is consensual, not a seizure if, under the totality of the circumstances, the law enforcement officer's conduct conveys to a reasonable person that he or she was free to refuse the requests or otherwise end the encounter. State v. Lee, 283 Kan. 771, 775, 156 P.3d 1284 (2007); State v. Parker, 282 Kan. 584, 589, 147 P.3d 115 (2006); State v. Morris, 276 Kan. 11, 19, 72 P.3d 570 (2003) (quoting Florida v. Bostick, 501 U.S. 429, 434, 115 L.Ed. 2d 389, 111 S.Ct. 2382 [1991]); Reason, 263 Kan. at 410; see United States v. Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996). But see Moore, 283 Kan. at 352 (in automobile stop where location is controlled by police action of stopping vehicle, standard stated as being whether a reasonable person would feel "free to leave").

Appellate review of the trial court's determination of whether a reasonable person would feel free to refuse the officer's requests or otherwise terminate the encounter consists of two parts: (1) the factual underpinnings are reviewed under a substantial competent evidence standard and (2) the ultimate legal conclusion drawn from those facts, i.e., whether a reasonable person would feel free to refuse the requests or to terminate the encounter, is reviewed under a de novo standard. See Moore, 283 Kan. at 352.

In addition to considering the nature of the seizure, when a search occurs the basis of the search must also be considered. See United States v. Drayton, 536 U.S. 194, 206-08, 153 L.Ed. 2d 242, 122 S.Ct. 2105 (2002) (considering separate issues of voluntariness of encounter and voluntariness of consent to search). A search conducted without a warrant is per se unreasonable unless it meets one of several recognized exceptions to the warrant requirement, including consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances; the emergency doctrine; inventory searches; plain view; and administrative searches of closely regulated businesses. State v. Drennan, 278 Kan. 704, 719, 101 P.3d 1218 (2004). Consent is the only basis alleged by the State to justify the searches in this case.

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. See United States v. Guerrero, 472 F.3d 784, 789-90 (10th Cir. 2007); Moore, 283 Kan. at 360.

The State has the burden of establishing the scope and voluntariness of the consent to search. These questions present issues of fact which appellate courts review to determine if substantial competent evidence supports the trial court's findings. Moore, 283 Kan. at 360.

Finally, if it is determined there is any taint, we must determine whether the taint is purged. An unconstitutional seizure may infect or taint the consent to search as well as any fruits of the encounter if the nature of the seizure renders the consent to search involuntary. Florida v. Royer, 460 U.S. 491, 501, 75 L.Ed. 2d 229, 103 S.Ct. 1319 (1983) (officer's detention of person beyond limited restraint of Terry investigative stop taints subsequent consent to search); see Wong Sun v. United States, 371 U.S. 471, 9 L.Ed. 2d 441, 83 S.Ct. 407 (1963). Conversely, a voluntary consent to search can purge the primary taint of an illegal seizure. Reason, 263 Kan. at 409; State v. Ninci, 262 Kan. 21, 32, 936 P.2d 1364 (1997).

Analysis

In applying these principles to this case, because no issue is raised regarding the legality of the traffic stop, the analysis begins with the question of whether the traffic stop was extended beyond its lawful scope and duration or whether the encounter became consensual after Officer Weinbrenner returned Thompson's license and registration, advised Thompson he was giving him a warning, and told him to have a good day. The trial court applied the totality of the circumstances test developed by the United States Supreme Court and determined that the encounter had ended and became a consensual encounter. Yet, applying the same totality of the circumstances test, the Court of Appeals panel disagreed and concluded there was not a consensual encounter. 36 Kan. App. 2d at 259-61.

As the parties suggest, this divergence of opinion reflects the inherently factual nature of the inquiry. The factually driven inquiry means that the test is difficult to apply. This difficulty leads to imprecision which has led commentators to criticize the United States Supreme Court's consent search jurisprudence. Commentators, in addition to noting the difficulty in applying the case law relating to consensual searches to specific fact situations, argue that the Court's analysis utilizes an ill-crafted paradigm. See, e.g., Williams, Misplaced Angst: Another Look At Consent-Search Jurisprudence, 82 Ind. L.J. 69, 69-71 (2007) ("No one seems to have a good word to say about consent-search jurisprudence"; it is a "problematic realm of Fourth Amendment law."); Note, The Fourth Amendment and Antidilution: Confronting the Overlooked Function of the Consent Search Doctrine, 119 Harv. L. Rev. 2187, 2188 (2006) ("Most commentators agree that the Court's current approach is flawed, and even those commentators who defend the Court's holdings criticize its reasoning."); Simmons, Not "Voluntary" But Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine, 80 Ind. L.J. 773, 773 (2005) (consent-search paradigm is a "triple inconsistency: the Court claims to be applying one test, but in reality is applying a different test--and neither test fully comports with the real-life confrontations"); Comment, "People, Not Places": The Fiction of Consent, The Force of the Public Interest, and the Fallacy of Objectivity in Police Encounters with Passengers During Traffic Stops, 7 U. Pa. J. Const. L. 1071, 1095 (2005) (because "[t]here is no such thing as a consensual encounter during a traffic stop," author argues "courts need a new standard"); LaFave, The "Routine Traffic Stop" from Start to Finish: Too Much "Routine," Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1898 (2004) (argues officers can "obviate any and all time and scope limitations" by performing "the well-known Lt. Columbo gambit ['one more thing . . .']" despite the reality that "any person who has been detained for a traffic violation is unlikely to so perceive the situation"); Chanenson, Get the Facts, Jack! Empirical Research and the Changing Constitutional Landscape of Consent Searches, 71 Tenn. L. Rev. 399, 402 (2004) ("[A]lthough scholars have criticized the consent search doctrine for years, the Supreme Court has steadfastly defended it and sided with a pro-law enforcement approach."); Whorf, Consent Searches Following Routine Traffic Stops: The Troubled Jurisprudence of a Doomed Drug Interdiction Technique, 28 Ohio N.U. L. Rev. 1, 7 (2001) ("coercion inherent" in consent searches after routine traffic stop "must be addressed in some way"); Butterfoss, Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins, 79 J. Crim. L. and Criminology 437, 481-82 (1988) (argues test utilized by United States Supreme Court is unworkable because outcomes of cases turn on subtle factual distinctions that make it difficult for police officers to apply the standard in the field and adjust their conduct accordingly).

This criticism is valid in many respects. Because of the valid arguments raised, if we were to write on a clean slate, we would consider a different paradigm. We do not have this opportunity, however, because we are obligated to follow the United States Supreme Court's interpretation and application of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 655-57, 6 L.Ed. 2d 1081, 81 S.Ct. 1684, reh. denied 368 U.S. 871 (1961).

There is the option of construing our state constitution to provide greater protection of individual rights than mandated by the federal Constitution. See Oregon v. Hass, 420 U.S. 714, 719, 43 L.Ed. 2d 570, 95 S.Ct. 1215 (1975) ("a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards"). See generally Brennan, The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535, 552 (1986). Critics of the United States Supreme Court's consent search jurisprudence, including justices, have urged or invited state courts to interpret their state constitutions broadly. See Ohio v. Robinette, 519 U.S. 33, 42, 136 L.Ed. 2d 347, 117 S.Ct. 417 (1996) (Ginsburg, J., concurring). Few states have accepted this invitation. See Whorf, 28 Ohio N.U. L. Rev. 1.

Kansas counts among the majority of states which have construed state constitutional provisions in a manner consistent with the United States Supreme Court's interpretation of the Fourth Amendment. In 1993, this court recognized that an analysis under § 15 of the Kansas Constitution Bill of Rights need not be in lockstep with the United States Supreme Court's interpretation of the Fourth Amendment to the United States Constitution, concluding that even though it followed United States Supreme Court decisions in that case it had authority "to interpret § 15 of the Kansas Constitution Bill of Rights independently of its federal counterpart and to heighten the protection available to Kansas citizens." State v. Schultz, 252 Kan. 819, 834, 850 P.2d 818 (1993). The fact the court did not depart from the United States Supreme Court's analysis in that case did "not foreclose the possibility of" diverging from Fourth Amendment jurisprudence "in a future case involving different issues." 252 Kan. at 834. Two Kansas justices dissented and would have read § 15 of the Kansas Constitution Bill of Rights to provide greater protection than the Fourth Amendment. Yet, later that year in an opinion authored by one of the Schultz dissenters, the court wrote that the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights "are identical for all practical purposes. If conduct is prohibited by one it is prohibited by the other." State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993) (citing Schultz, 252 Kan. at 824).

Before Schultz, the court typically stated that the scope of § 15 of the Kansas Constitution Bill of Rights "is identical" or "is usually" identical to the scope of the Fourth Amendment to the United States Constitution. Compare State v. LeFort, 248 Kan. 332, 334, 806 P.2d 986 (1991) ("is identical"), and State v. Deskins, 234 Kan. 529, Syl. ¶ 1, 673 P.2d 1174 (1983) (scope "is identical" in "any particular factual situation"), with State v. Lambert, 238 Kan. 444, 446, 710 P.2d 693 (1985) ("is usually considered to be identical"), and State v. Fortune, 236 Kan. 248, Syl. ¶ 1, 689 P.2d 1196 (1984) (same). Recently, in the specific context of analyzing the voluntariness of a consent to search following a traffic stop, we concluded the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights provided "identical protection." Moore, 283 Kan. at 349; see also State v. Hoeck, 284 Kan. 441, Syl. ¶ 2, 163 P.3d 252 (2007) (considering good faith exception when warrant issued without sufficient probable cause); Anderson, 281 Kan. at 901 (extended detention after traffic stop based upon reasonable suspicion).

Hence, decisions of the United States Supreme Court frame our analysis. The State and amicus curiae argue the Court of Appeals panel misapplied those cases. Specifically, they argue the Court of Appeals panel deviated from applicable precedent relating to consensual searches in: (1) finding that the extended traffic stop was not consensual and in determining that the lack of physical disengagement between Thompson and the officer was a "paramount" consideration leading to this determination; (2) considering the officer's prestop intent to seek Thompson's consent to search the vehicle; (3) considering the fact that the patrol car's emergency lights continued to flash throughout the stop; and (4) ruling that Thompson's subjective state of mind was relevant in determining whether the police encounter was consensual.

Because several decisions of the United States Supreme Court touch on all of these arguments and because the fact-driven analysis means that the facts underlying each decision must be considered, we will discuss the relevant Supreme Court cases before discussing the parties' arguments.

United States Supreme Court Cases

The totality of the circumstances test derives from Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed. 2d 854, 93 S.Ct. 2041 (1973), a case in which the test was applied to determine the voluntariness of a consent to search. Bustamonte arose from a traffic stop that occurred after officers observed a car with a burned-out headlight and license plate light. Six men were in the vehicle, including Bustamonte. After the six occupants stepped out of the car at the officer's request and two additional police officer arrived, an officer asked if he could search the car. One of the passengers, who advised that the car belonged to his absent brother, ...


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