In a recent and frankly scary opinion, the Kansas Court of Appeals found a person can be inadvertently pulled over for no reason by a police officer and subsequently seized and searched. In State v. Reiss, Mr. Reiss appealed his conviction for driving under the influence. As described by the court, Mr. Reiss “had the misfortune to be driving one of two vehicles directly behind a blue pickup that had no lights on at about 1 o’clock in the morning.” State v. Reiss, No. 102, 071, slip. op at 1 (Kan. Ct. App. 2010).
The police car drove behind Mr. Reiss and inadvertently pulled over Mr. Reiss, another car, and a blue pickup who had committed a traffic infraction. After being pulled over, Mr. Reiss was confused and got out of the car to question the police officer. The police officer told Mr. Reiss to get back into his truck. Afterwards, the officer approached the car. Even though the officer had not meant to pull over Mr. Reiss, he began questioning him about why he had gotten out of his car. Subsequently, the officer began to suspect Mr. Reiss was driving under the influence and eventually arrested him.
On appeal, Mr. Reiss argued he was seized and unlawfully detained; therefore, any evidence resulting from the unlawful detention should be suppressed. The court agreed that Mr. Reiss was seized when the officer told him to return to his car. However, the court excused the officer’s behavior and found that any subsequent detention and search was lawful. The court finds that an officer may detain a person even without reasonable suspicion if there is a reasonable concern for officer safety. The court finds “[i]t is . . . reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety.” Slip. op at 7 (citing Brendlin v. California, 551 U.S. 249, 258 (2007). Similarly, Mr. Reiss “was in the same position as a passenger who has been stopped along with a driver but with no reasonable suspicion of wrongdoing by the passenger.” Slip. op. at 8.
The worst part about this case is that the lawyer on appeal missed the bigger question – was Reiss seized once the officer pulled him over, regardless of whether he was seized when the officer ordered him back in the car? The Court of Appeals agreed, stating”[t]he parties essentially skipped over this first question in their appellate briefs.” Slip op. at 4. Because the parties skipped over it, the Court of Appeals did not address it. Unfortunately, this was probably Mr. Reiss’ best argument – that the officer seized him as soon as he pulled over. And it was never raised – which means it can never be raised in a subsequent appeal. Essentially, because Mr. Reiss’ lawyer missed the argument, he deprived Mr. Reiss of the ability to ever argue it. Ever.
The choice of a lawyer is an important decision – as Mr. Reiss’ case demonstrates. It can mean the difference between freedom and prison. Between Christmas with your family or another day behind bars. When it’s your life on the line, make a choice you won’t regret. To talk with an experienced lawyer, contact Bell Folsom, P.A.