Newspaper article The Topeka Capital-Journal

Court Upholds Decision Search Was Unconstitutional

Newspaper article The Topeka Capital-Journal

Court Upholds Decision Search Was Unconstitutional

Article excerpt

For a second time in three months, the Kansas Court of Appeals has upheld a Shawnee County judge's determination that Topeka police officers unconstitutionally searched a man's property.

On Sept. 12, 2014, a bartender at The Burger Stand called an off- duty sheriff's deputy working security nearby and reported a man with a gun inside the restaurant.

The man in question, Lakendrick Smith, complied with orders to leave the restaurant and spoke with the deputy, Douglas Fehr, outside. Smith said he had a concealed carry permit and didn't have a gun inside the restaurant. Becoming agitated, he asked a friend to grab a gun out of his car.

After a Topeka police officer, Victor Riggin, arrived and interviewed Burger Stand patrons, he had Smith arrested for making a criminal threat but never read him a Miranda warning. Another man was arrested for disorderly conduct because he recorded the arrest on his phone.

Riggin didn't see a gun within Smith's locked vehicle. When he approached the handcuffed suspect, he took the key to Smith's car from him and was told by Smith that the officer would find a gun inside.

Riggin found the gun in a glove box. Prosecutors argued the search was legal because Smith consented and there was probable cause a crime had occurred but not enough time to obtain a search warrant.

Shawnee County District Judge Mark Braun disagreed, ruling Smith didn't consent to the search and there wasn't probable cause Smith had made threats involving a weapon. Since Smith was in custody, Braun ruled officers couldn't claim there was an immediate risk to public safety.

As a result, Braun ordered the evidence of a gun suppressed.

The Shawnee County District Attorney's Office appealed Braun's decision to the Kansas Court of Appeals, which dismissed the appeal Friday in a unanimous ruling. …

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