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Consent not voluntary [NOT FINAL]

By Randall Hodgkinson

David Harger won in State v. Christner, No. 98,065 (Kan. App. Dec. 7, 2007) (unpublished), affirming Judge Dickinson's suppression order in a Harvey County drug prosecution. This was another in a long, back-and-forth series of decisions regarding whether a person would feel free to leave during a traffic stop. Under the circumstances of this case, the COA agreed with Judge Dickinson:

The police told Christner he was free to go but then asked to speak with him further. This question was in the presence of three armed officers, two of whom were close by and had previously made direct contact with Christner. It was a late-night meeting on the side of the road near two police cars with emergency lights flashing. With these facts, we hold this meeting between Christner and the police was nonconsensual and his consent to search his car was involuntary.
. . . .

Christner gave his consent to search in the involuntary atmosphere we have described. As the district court ruled, we too cannot hold his consent to be free from coercion or duress. Therefore, we conclude the consent to search was similarly involuntary. Although there was clear testimony that consent was explicitly given, there is no substantial evidence that it was given freely and without subtle, yet obvious duress.

Here and here and here are previous posts on similar types of cases. Although the Thompson case was a set-back in this area of litigation, a lesson learned is facts are everything in these cases. Keep bringing out details at suppression hearings.

Full post as published by Kansas Defenders on December 20, 2007 (boomark / email).