TOPEKA, Kan. — Declaring that motorists who recline their car seats are guilty of suspicious behavior, the Kansas Supreme Court has given police the green light to carry out warrantless searches of cars in which the seats are in a reclined position and plastic baggies are visible. The ruling in State v. Howard follows in the wake of other court rulings in recent years upholding warrantless searches and seizures by police for such “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.”
The case arose in 2011, when police stopped Cameron Howard for allegedly avoiding a traffic light by pulling through a gas station parking lot. Upon approaching the stopped vehicle, the police officer noticed that the passenger seat—occupied by Howard’s pregnant companion—was in a reclined position. After ordering Howard out of the vehicle, the officer also noted the presence in the car of an empty plastic baggie with a ripped-off corner. A warrantless search of the car revealed a firearm concealed under a 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.” Combined with the reclined seat, the majority concluded that “Officer Loughman made the reasonable inference that the passenger’s reclined seat was an attempt to conceal something from his view.” Howard was subsequently charged with being a felon in possession of a firearm, even though he had legally purchased the firearm after undergoing a federal background check.
At trial, Howard’s attorneys argued that the warrantless search of the vehicle violated the Fourth Amendment because the police lacked probable cause to believe the vehicle contained contraband. The trial court convicted Howard for possessing the pistol, which the Court of Appeals and the Kansas Supreme Court later affirmed. In a strongly-worded dissent, Justice Eric S. Rosen pointed out that a reclined seat shows only that the pregnant passenger wanted to make herself more comfortable, noting that police and courts too often label this kind of innocent conduct as a “furtive movement” indicating an effort to hide something incriminating and justifying a search.