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No Reasonable Person Here: Court Refuses to Suppress Evidence

By Robyn Hagan Cain | Last updated on

Every time we read an opinion, like the one in this Tenth Circuit Court of Appeals case, in which a court determines that a search was consensual because a "reasonable person" would known that he was free to leave a police interview, we wonder: Who are these "reasonable people?"

We're lawyers. We read suppression opinions all day long. And if a police officer pulled us over, asked us questions, told us "thank you, have a safe trip," but then asked if he could ask more questions, we wouldn't feel like we were free to leave.

Clearly, in the eyes of justice, we are not reasonable, but we don't feel comfortable telling someone with a gun, pepper spray, a Taser, and a nightstick to buzz off. (Especially when there's a Taser involved. Cops are too Taser-happy.)

Kansas Highway Patrol Trooper Chris Nicholas stopped Alice Isaacson (driver) and Damon Hunter (passenger) on Interstate 70 in Kansas for following too closely behind a semi-trailer truck; the "safe" distance is a two seconds, and Isaacson was traveling one second behind the semi.

Trooper Nicholas ran all the regular checks, questioned Isaacson and Hunter about their seemingly-expired rental contract for the car, explained the two-second driving rule, and decided to let them proceed. He returned their documents, told them to have a safe trip, said "thank you," and took a few steps away before asking if he could ask them a few more questions.

Those questions included "do you have anything illegal in the car" and "can I search the car," and ultimately resulted in Isaacson handing over the keys.

Trooper Nicholas found marijuana in the car, and arrested both Isaacson and Hunter.

When the car was impounded and searched, police found 35 pounds of marijuana, a kilogram of cocaine, and a weapon in the console, and charged Hunter.

Hunter moved to suppress the evidence seized from the car. The case made its way up to the Tenth Circuit Court of Appeals, which ruled that Isaacson had authority to consent to the search of the vehicle, and that a reasonable person would have known that he was free to leave after Trooper Nicholas returned the documents and said "thank you."

The Tenth Circuit, relying on the Supreme Court's decision in Schneckloth v. Bustamonte, and its own ruling in United States v. Ledesma, upheld the district court's decision that the encounter between Hunter and Trooper Nicholas had become consensual by the time Trooper Nicholas searched the car because a reasonable person would have believed he was free to leave or disregard the officer's request.

Again, we have no idea where these reasonable people are hanging out, but it's certainly not within the pages of federal appellate opinions. With that in mind, if you represent a client in similar situation, it may be in your client's best interest to focus more on plea-bargaining than prayers for suppression.

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