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Search exceeded scope [NOT FINAL]

By Randall Hodgkinson

Carl Folsom won today in State v. Warren, No. 94,694 (Kan. App. Nov. 30, 2007), reversing Johnson County burglary and theft convictions with an order to suppress evidence obtained from search of a car. After deciding to impound a car, the driver asked to retrieve some personal items, which the officer would allow, but only after a search of the car for weapons. During that search, the officer found and went through a day planner:

It is true the day planner could have contained a weapon, but it did not. And, the officer's search did not stop with checking for weapons in the book. Instead, without any probable cause, the officer continued to search through the planner thoroughly. He found a social security card, a checkbook, and a AAA card, all of which had one Jason Toomsen's name on them. (Toomsen had suffered a house burglary the day before.) When asked, Warren offered no explanation about the items or why they were in his car. This caused the officer to extend his search to the passenger area and then the trunk.

This search exceeded the legal limits of a Terry search, and the evidence gained from it must be suppressed. Neither party argues the inevitable discovery doctrine applies here, and we agree because of the lack of a written policy covering inventory searches of impounded cars and trucks by the Roeland Park Police Department.

Nice to see that the COA understand that there are "scope" restrictions (at least in this case)! Here is FourthAmendment.com's coverage of the case.

[Update: the state filed a PR on December 31, 2007.]

Full post as published by Kansas Defenders on November 30, 2007 (boomark / email).