CASES TEST SEARCH LIMITS

Lawrence Appeal Is One of Two Challenging Police Actions

Topeka - Two minor drug cases, including one in Lawrence, have led to
major constitutional questions before the Kansas Supreme Court over
when police can search a person.

The court will hear oral arguments at 1:30 p.m. Tuesday in a dispute
arising from the June 16, 2005, arrest of Paul Martin near Trinity
Episcopal Church, 1011 Vt.

The incident started as Lawrence police Officer Reid Walter was on
patrol investigating whether someone was urinating in the area and he
approached Martin, according to court records.

Martin wasn't seen causing any trouble, but Walter asked him his name
and some other questions.

Martin, who is now 37 and lives in Leavenworth, voluntarily answered
the officer, the records indicate. Martin said he was in the area to
listen to music downtown, according to the records.

While the two talked, Walter, who said he routinely checks for
outstanding warrants, ran Martin's name and birthdate through the
department's dispatch center to determine whether he had any warrants.

Martin did have an outstanding warrant, the records said. According
to the Douglas County District Attorney's office, the warrant was for
a probation violation on a charge of driving under the influence.

Walter then arrested Martin on the outstanding warrant, searched him
and found a small amount of marijuana in an Altoids tin. Martin later
was convicted of possession of marijuana and sentenced to six months in jail.

But Martin's attorney, Juanita Carlson, said the evidence of
marijuana shouldn't have been allowed during the trial heard by
District Judge Paula Martin, who is not related to the defendant.

Police can't run a warrant check on people when they are not
suspected of a crime, Carlson said. The Fourth Amendment to the U.S.
Constitution guards against unreasonable searches and seizures.

"There simply was no reasonable articulable suspicions specific to
Mr. Martin to lead one to think he was committing a crime, about to
commit a crime or had committed a crime," she argued in a legal brief.

The Kansas Court of Appeals agreed. In February, the appellate court
ruled that stopping Martin wasn't justified.

That decision prompted the district attorney's office to appeal to
the Kansas Supreme Court.

In the office's legal brief, Assistant District Attorney Deborah
Moody argued that in previous cases, the Kansas Supreme Court has
ruled that once a police officer determines there are outstanding
warrants for a person, "regardless of the original basis for the
contact," the officer has a duty to arrest and is legally permitted
to conduct a search.

Also there is a dispute as to how voluntary Martin's cooperation was
and whether he was illegally detained.

Martin's attorney, Carlson, said he was detained without any evidence
of a crime having occurred. "Clearly, Mr. Martin was not free to
leave or he would have," she said.

But Moody disagreed.

"There is no indication that Martin felt compelled to talk to Officer
Walter, nor is there any indication that Martin tried to leave or
that he was prevented from leaving Officer Walter or any other
officer," she wrote.

The other case before the Kansas Supreme Court involves a man
arrested in 2005 for possession of marijuana in Reno County.

The man, Shannon Greever, was stopped by police for failing to use
his turn signal the required 100 feet before making a turn. After he
was stopped, he was searched and marijuana was found, according to
court records.

But the appellate court said essentially that the 100-foot rule
couldn't apply in this case because there was road construction that
the defendant couldn't see at first that required him to turn. The
officer had no reason to stop him, and the search was illegal.

Oral arguments in that case will be Dec. 6.