Kansas courts will give an officer wide latitude in using “reasonable” force to control a suspect and retrieve the evidence in an investigation. In a recent Kansas Court of Appeals opinion, Mr. Jason Orloske appeals his conviction and claims that he was subjected to torture “when, in an attempt to get him to spit out the drugs he had hidden in his mouth, a police officer bent Orloske over the hood of a patrol car, placed his hands on Orloske’s throat, and kneed him twice in the thigh.” State v. Orloske, No. 103,379. slip op. at 2 (Kan. Ct. App., June 10, 2011). Defense counsel objected when the drug evidence was offered at trial, arguing that unconstitutional excessive force was used to obtain the drugs. The trial court found there was probable cause to believe a drug crime was being committed, and that it was reasonable for the officer to place his hands around Mr. Orloske’s through to prevent his concealment of evidence.
On appeal, Mr. Orloske argues that the drugs should have been suppressed due to the circumstances of the search. In analyzing this case, the appellate court first examines the lawfulness of the search. The court agrees that the officer had probable cause to believe Mr. Orloske had committed some drug crime because he saw the defendant throw a clear pipe from the window of a car. Next, the court finds that exigent circumstances existed that required the officer to take “swift action” and extract the evidence. Id. at 7. The officer testified that he saw Mr. Orloske moving his mouth as though trying to chew or swallow something. He believed if the baggy broke, the crystal meth inside would be lost and Mr. Orloske’s health would be in danger. As a result, the court agrees that the officer, under the circumstances, had the authority to retrieve the evidence.
Finally, the court admits that even if an officer had the authority to seize the evidence from Mr. Orloske’s mouth, the officer still must only use reasonable force in doing so. The court notes that in the past it has upheld a conviction where an officer grabbed the defendants arm, forced him to the ground, grabbed his jaw, and pinched his nostrils to prevent him from swallowing the drugs. See State v. Holloman, No. 101,538 The court finds that the Holloman case is similar to the facts in Mr. Orloske’s case. Moreover, the officer testified that he had been trained to knee suspects as a method to extract evidence from the mouth. No serious injury resulted from the incident. As a result, the court upholds the officer’s actions and affirms Mr. Orloske’s convictions.
The court here is careful not to create any rules for the future. The court is concerned that the officer caused pain and actually put his hands around Mr. Orloske’s neck to stop him from swallowing. Whats more, the court admits that in other states, the officer’s action may have amounted to a due process violation. However, the court emphasizes that whether an officer uses excessive force in a search and seizure will essentially depend on the “severity” of the pain or injury caused by the officer. Here, the court finds the officer’s actions caused no apparent injury and therefore were reasonable.
The most troubling aspect of this case is that the defendant’s lawyer did not object to this evidence until trial. Matters such as this should be raised in a pretrial motion that would allow the defendant to testify exactly how much pain the officer caused him. By waiting until trial, the defendant was given a Faustian choice between waiving his 5th Amendment right and testifying in front of the jury or depriving the court of knowing exactly how much pain the officer caused him. If the motion had been made prior to trial, however, the defendant could have testified just in front of the judge. Moreover, his testimony would be limited to just that issue.
Sometimes timing is everything. A motion with the same facts and law can be granted or denied based simply on when in the process the motion was filed. If you are facing criminal charges and need an experienced attorney to protect your interests, contact Bell Folsom, P.A. today.