Topeka, KS — In one of the most stereotypical, rights-violating and tyrannical laws we’ve ever seen, the Kansas Supreme Court just ruled that a reclined car seat is suspicious behavior and can be used by police as a justification for warrantless searches. As if the police needed another reason to stop and harass you, they can now do so — based entirely on your seat posture while riding in a vehicle.
Prior to heading to the Supreme Court, the Court of Appeals first concluded that a reclined seat “does not significantly add to the probable-cause analysis” because reclining in a seat is “a common, innocuous activity.” Howard, 51 Kan. App. 2d at 38. However, if the officer sees a plastic bag in a car with a reclined seat — they now have probable cause. Howard, 51 Kan. App. 2d at 41.
The case of the State of Kansas v. Cameron Howard began when Howard allegedly attempted to avoid a traffic light by driving through a parking lot. Claiming this gave him probable cause to detain and otherwise extort Howard, a police officer pulled him over. That’s when the officer noticed the ‘suspicious’ passenger seat that was in a slightly reclined position.
Ignoring the fact that the passenger seat was occupied by Howard’s pregnant companion, the officer ordered Howard out of the vehicle. He then noticed an empty plastic bag and claimed this gave him probable cause to search the vehicle. During the warrantless search of the vehicle, the officer found a handgun under the floor mat.
According to the Kansas Supreme Court, “the officer’s training and experience that led him to know people regularly package drugs utilizing twisted off corners of clear plastic baggies.”
Seeing the baggy and noticing the reclined seat — even though it was occupied by a pregnant woman — “Officer Loughman made the reasonable inference that the passenger’s reclined seat was an attempt to conceal something from his view.” Howard was then arrested for felony possession of a firearm — in spite of the fact that he had legally purchased the gun after undergoing an FBI background check.
At trial, Howard’s defense argued that his Fourth Amendment rights were violated because the officer had no probable cause for the search in the first place.
However, the court concluded, in a most tyrannical and unconstitutional manner, that a reclined seat is plenty enough reason for an officer to be suspicious, thereby magically granting him power to seize, search, or otherwise detain an individual based on that fact alone.
We begin our probable cause analysis by considering the passenger’s reclined seat and the panel’s conclusion that it added nothing to increase the probability that the vehicle contained contraband. We disagree. When assessing whether probable cause existed, this court is to consider all information in the officer’s possession and any “fair inferences therefrom.” (Emphasis added.) Ramirez, 278 Kan. at 406. We conclude that it was fair for the officer in this case to infer from the passenger’s action of reclining her seat that she was trying to hide something from his view. This inference adds to the likelihood that the car contained contraband, helping to establish probable cause.
Justice Eric S. Rosen was the sole voice of reason on the court and issued a heavily charged dissent.
The Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights establishes “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches . . . .” See State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003). This protection extends to a person’s vehicle and prevents the warrantless search of that vehicle absent probable cause. See United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); State v. Sanchez-Loredo, 294 Kan. 50, 56, 272 P.3d 34 (2012). Probable cause only exists when the totality of the circumstances establishes a fair probability that the vehicle contains contraband or evidence. Sanchez-Loredo, 294 Kan. at 55.
So long as these principles stand, I cannot agree that the presence of a reclined seat and a torn plastic baggie give an officer permission to invade the privacy and protection afforded by our Constitutions with a warrantless search of a vehicle.
Police, as the Rutherford Institute so eloquently points out, can now add ‘reclining car seat’ to the incredibly long list of other “suspicious” behavior as having acne scars, driving with a stiff upright posture, having car windows that are too heavily tinted, driving too fast, driving too slow, failing to maintain speed, following too closely, improper lane changes, distracted driving, screeching a car’s tires, leaving a parked car door open for too long, avoiding a traffic light by driving through a parking lot, driving near a bar or on a road that has large amounts of drunk driving, driving a certain make of car (Mercedes, Grand Prix and Hummers are among the most ticketed vehicles), having anything dangling from the rearview mirror (air fresheners, handicap parking permits, troll transponders or rosaries), or displaying pro-police bumper stickers.
“Drivers should beware. At a time when police can do no wrong—at least in the eyes of the courts, police unions and politicians dependent on their votes—‘we the people’ are at a severe disadvantage,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “As Supreme Court Justice William O. Douglas warned almost 50 years ago, ‘If the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime.’ We have, indeed, entered a new regime and it’s called a police state.”
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