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State of Kansas v. Anthony R. Murphy

February 1, 2013

STATE OF KANSAS, APPELLEE,
v.
ANTHONY R. MURPHY, APPELLANT.



Appeal from Geary District Court; STEVEN L. HORNBAKER, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. 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. 2. The factors that tend to establish a voluntary encounter include: knowledge of the right to refuse, a clear communication that the driver is free to terminate the encounter or refuse to answer questions, return of the driver's license and other documents, and a physical disengagement before further questioning. 3. Factors that tend to establish a continued detention include: the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, the use of aggressive language or tone of voice indicating that compliance with an officer's request is compulsory, the prolonged retention of a person's personal effects such as identification, a request to accompany the officer somewhere, interaction in a nonpublic place, absence of other members of the public, or the display of emergency lights.

Per curiam.

Review of the judgment of the Court of Appeals in 42 Kan. App. 2d 933, 219 P.3d 1223 (2009).

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

The opinion of the court was delivered by

Anthony R. Murphy was charged with and convicted of possession of cocaine with intent to sell and possession of cocaine without a tax stamp. The Court of Appeals affirmed his convictions in State v. Murphy, 42 Kan. App. 2d 933, 219 P.3d 1223 (2009). In September 2010, we granted Murphy's petition for review on the issue of whether the traffic stop became a voluntary encounter before Murphy gave consent to search.

FACTUAL BACKGROUND

On June 22, 2006, Deputy Mark Maschmeier, of the Geary County Sheriff's Department, observed Anthony Murphy driving 79 miles per hour on I-70, where the posted speed limit is 70 miles per hour. The deputy turned on his emergency lights and initiated a traffic stop at 6:49 a.m. He approached the car and obtained Murphy's driver's license and rental car papers. Deputy Maschmeier returned to his car to run Murphy's driver's license through dispatch while writing out a warning for speeding. Murphy had a valid Colorado license and his rental paperwork was in order.

Maschmeier walked back to Murphy's vehicle and gestured for Murphy, who was now outside of his car, to join him at the back of the vehicle. He had Murphy sign the warning while they were both standing between their respective vehicles. Maschmeier then returned Murphy's driver's license and other paperwork, told Murphy he was free to go, and a brief handshake was exchanged.

In the next several seconds, Murphy took two or three steps toward his car and Maschmeier turned and took one or two steps toward his own vehicle. The deputy then turned back and said, "By the way"-Murphy then turned around and looked at the deputy-"You don't happen to have any illegal contraband in the vehicle, uh, any drugs, alcohol, weapons?" Murphy denied having any such things in his car. Maschmeier then asked if Murphy would mind if he searched the vehicle. When Murphy consented to a search of the car, he asked if he could pat Murphy down. After conducting a pat-down search of Murphy, Maschmeier got the passenger out of the car and patted her down as well. During the search of the vehicle, Murphy voluntarily gave the deputy the keys to open locked suitcases in the trunk. Maschmeier eventually found 107.92 grams of crack cocaine in a fanny pouch in the spare tire compartment of the trunk. The emergency lights on the police vehicle remained on during the entire exchange and subsequent search.

VOLUNTARY ENCOUNTER

The only issue in this case is whether the traffic stop became a voluntary encounter before Murphy consented to the search of his vehicle. In State v. Thompson, 284 Kan. 763, 779-93, 166 P.3d 1015 (2007), we carefully reviewed the United States Supreme Court jurisprudence that ...


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