State v. Hardyway

958 P.2d 618, 264 Kan. 451, 1998 Kan. LEXIS 84

• Court: Supreme Court of Kansas
• Decided: April 17, 1998
• Docket: 74,415
• Status: Published

Opinions

The opinion of the court was delivered by

Six, J.:

This is a Fourth Amendment traffic stop search and seizure case. Defendant Terry W. Hardyway appeals his conviction on one count of possession of cocaine, K.S.A. 1994 Supp. 65-4160(a), and one count of seat belt violation, K.S.A. 8-2503. Before trial, Hardyway filed a motion to suppress the evidence obtained during the search. The motion was denied. On appeal, he argued that the district court erred in denying the motion to suppress. In an unpublished decision, the Court of Appeals reversed and remanded. The State petitioned for review, asserting error in reversal of the district court’s finding that Hardyway’s consent was voluntary.

We granted the petition for review. Our jurisdiction is under K.S.A. 20-3018. A majority finds the consent to search voluntary, reverses the Court of Appeals, and affirms the district court.

FACTS

The police received complaints that three of four residences in a four-plex in Wichita were involved with gang activity and “mostly narcotic sales.” Detective Terry Fettke, Officer Shaun Price, and other officers of the Special Community Action Team (SCAT) conducted surveillance of the residences. SCAT is a unit that focuses on street level gangs and drugs. The purpose of the surveillance was to establish probable cause to obtain a warrant for a search of the residences.

The officers received information from another SCAT unit that a passenger in a brown Cadillac had entered one of the residences under surveillance. The passenger had only been there a brief period of time and returned to the car. Believing the passenger, Hardyway, might have purchased narcotics, the officers located and followed the brown Cadillac. They observed the driver change lanes without signaling, stopped the Cadillac for traffic infractions, and observed seat belt violations by both occupants. Detective Fettke testified that he immediately advised the occupants of the traffic violations. The driver consented to a search of his person. Fettke asked Hardyway if he would mind getting out of the car and going to the rear to speak with him. Hardyway complied. Fettke testified that he did not order Hardyway out of the car. Fettke informed Hardyway of his suspicions that Hardyway had just purchased drugs on Indiana Street. Fettke then asked Hardyway if he would mind being searched for narcotics or weapons. According to Fettke, Hardyway consented to the search, responding that he did not mind being searched. Fettke found crack cocaine in Hardyway’s left shirt pocket.

After seizing the cocaine, arresting Hardyway, and informing him of his Miranda rights, Fettke questioned Hardyway. Hardyway admitted going to the residence and purchasing the cocaine.

The Motion to Suppress

Hardyway’s motion to suppress addressed the seized cocaine and his statements to the detective. Fettke testified about the surveillance and the traffic stop. Fettke said that he followed Hardyway’s car because he thought the occupants may have been involved in a drug deal. Fettke pointed out that his suspicion was based upon hours of surveillance, “having direct knowledge of the persons involved in the narcotics distribution from 429 Indiana and realizing that the distribution was going on at that location before that vehicle [sic] even pulling up.”

The district court ruled that Hardyway’s statements to Fettke were inadmissible but admitted the cocaine and the lab reports. The district judge said:

“It seems to me the starting place you both agree is the Fourth Amendment to the United States Constitution and it provides, in essence, that the people shall be secure in their persons and effects from unreasonable searches and no warrant shall issue except for probable cause for them both, particularly describing places to be searched and things to be seized.

“The law has evolved, any search done without a warrant is unreasonable. The burden falls upon the State to prove that it fits within an exception to the warrant requirement of the Fourth Amendment.

“[The] State asserts here there is a voluntarily [sic] consent; that is, indeed, one of the exceptions, then.

“To analyze it, we must first look, does the Fourth Amendment apply to a passenger in an automobile on a public street?

“Cases have evolved, there again, as I understand their evolution, that a passenger has an expectation of privacy in an automobile being driven on a street by another.

“So then we have to look at the stop, look at the facts here to find what were the purposes of the background stop. The automobile in which the defendant was riding was being followed by the police after it had made a short stop at a place that ffie police were surveilling, suspecting that it might be, in the words of Officer Price, a drug house. The purpose in following the subject automobile was to get its tag number to further the investigation being done in an effort to make out a complete application to be presented to secure a search warrant for that premise that the police suspected to be a drug house.

“In that pursuit, for the purpose of finding out what this vehicle’s tag number was and its description, violations of law were observed, commonly called traffic infractions, violations of traffic ordinances of the City [of] Wichita.

“A stop was then made. The passenger, I would take it, was sitting there while the driver was asked to step from the automobile and then what Mr. Phillips [defense counsel] referred to as a Terry-type, limited intrusion into his person, made to check to see if he had weapons.

“There’s no question raised there, that assumption adds to the facts and nothing more, and then the police turned to the passenger. That’s the point Mr. Phillips raises the stop was complete. They had the tag number. They had their driver and the passenger was asked by Detective Fettke, the passenger being the defendant, ‘Would you mind stepping out of the car?” It was a request. The defendant voluntarily complied and then further request made by Detective Fettke of the defendant, did the defendant mind if, “I searched your person for drugs or weapons.” Yes was the answer. “You may search; no, I don’t mind.” The search was done; contraband found. Thus this prosecution.

“The search was off of a voluntary consent, so were the police properly there at the place they searched Mr. Hardyway at the time they searched Mr. Hardyway, is what the issue really evolves down to.

“If the purpose of their stop was over, 10th Circuit has ruled in that case and followed their own ruling right along, that once the purpose of the traffic stop is over, it is over.

“It seems to me in every case they have done that, the traffic stop is a pure traffic stop, speeding or some other traffic infraction. Once the matter was handled, then the officer asked, “Do you mind if I search your car?” On those cases, the 10th Circuit has said it is not proper, it violates the Fourth Amendment to protect the person from the government.

“In this case, the investigation done prior to this stop must be considered, applied and must be used in my mind to supply the reasonable suspicion. That element gets us into a reasonable suspicion with exigent circumstances or gets into that with the information the police had concerning the known drug house, in the officer’s words.'

“Therefore, the search, in my mind, is proper, given the exigent circumstances. The driver was going to be given a citation and let go. The officers knew that this automobile had just made a very short stop at a place where drugs were being sold, purchased, possessed in a residence, had left that residence which was being surveilled, again.”

The Court of Appeals Opinion

In reversing the district court, the Court of Appeals said:

“There is no question that the defendant was lawfully detained dining the questioning and search of the driver and that he could have been detained for the purpose of investigating the seat belt violation. Thus, up to the point that the defendant got out of the car there was no Fourth Amendment violation. See U.S. v. Hill, 60 F.3d 672, 682 (10th Cir. 1995).”

The Court of Appeals found that Hardyway’s detention and Fettke’s request that Hardyway submit to a search for weapons or drugs was unrelated to the traffic stop. Fettke’s search could be justified only if the prior events at the suspected residence created a reasonable suspicion of drug activity and provided probable cause to search the defendant. The Court of Appeals then rejected the district judge’s conclusion that Fettke had reasonable suspicion of drug activity. The Court of Appeals disagreed with the district court’s finding that Hardyway had visited a “known” drug house. According to the Court of Appeals, the finding was not supported by evidence that rose to the level of an objective, reasonable, and articulable suspicion of illegal activity that would authorize detention of Hardyway.

The Court of Appeals concluded that the district” court’s determination that the consent was voluntary was based upon insufficient evidence. The panel reasoned that Fettke’s testimony as to the voluntary nature of the consent was “so devoid of details as to make a totality of the circumstances analysis impossible in light of the higher, but undefined, burden of proof placed on the State by [U.S. v.] Recalde, 761 F.2d 1448 [10th Cir. 1985].”

Hardyway’s convictions were set aside, and the case was remanded to the district court with directions to determine “whether the defendant’s consent to be searched was voluntary in light of the heavier burden placed on the State in accordance with the factors we have suggested and any others that are pertinent to the issue.”

DISCUSSION

An inquiry into whether detention is lawful or unlawful is fact-intensive. Here, we are reviewing a district court decision on the suppression of evidence. We review the factual underpinnings of that decision by a substantial competent evidence standard. We use a de novo standard to arrive at the ultimate legal conclusion drawn from those facts. State v. DeMarco, 263 Kan. 727, Syl. ¶ 1, 952 P.2d 1276 (1998). We normally give great deference to the factual findings of the district court and we do not reweigh the evidence. State v. Reason, 263 Kan. 405, 409, 951 P.2d 538 (1997).

The determination of voluntariness is a question of fact for the trier of fact, and the determination will not be overturned on appeal unless clearly erroneous. State v. Ruden, 245 Kan. 95, 105, 774 P.2d 972 (1989).

The federal appellate standard also defers to the trial court. “At a hearing on a motion to suppress, the credibility of the witnesses and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge.” U. S. v. Walker, 933 F.2d 812, 815 (10th Cir. 1991).

The quantum of evidence necessary to prove voluntariness is by a preponderance. State v. Pearson, 234 Kan. 906, 920, 678 P.2d 605 (1984).

We are not dealing here with an illegal traffic stop. The Court of Appeals recognized the legality of the stop by observing that the initial detention was proper. The stop was valid despite the officers’ motives. See Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 98, 116 S. Ct. 1769 (1996).

The issue before us is whether the Court of Appeals properly reversed the district court’s denial of suppression of the evidence. The issue turns on the voluntariness of Hardyway’s consent.

We said in Reason:

“ ‘The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and “[v]oluntariness is a question of fact to be determined from all the circumstances, [citation omitted].” ’ Ohio v. Robinette, 519 U.S. 33, 136 L. Ed. 2d 347, 355, 117 S. Ct. 417 (1996). In Robinette, after stopping a motorist for speeding, the officer checked the driver’s license and registration. He asked the driver to step out of the car, issued a verbal warning to the driver, and returned the license. The officer then inquired if the driver was carrying any illegal contraband. After the driver answered “no,” the officer asked if he could search the vehicle, and the driver consented. A small amount of marijuana and a controlled substance were found. The driver was arrested. The United States Supreme Court reversed Ohio’s per se rule that any attempt at consensual interrogation following a traffic stop must be preceded by telling the driver that he or she was free to go. Following a lawful traffic stop an officer is not required to say to the person that he or she is ‘free to go’ as a prerequisite to a voluntary consent to search.” 263 Kan. at 413.

The Court of Appeals here said that the request to search can be justified only if the events at the suspected residence amount to reasonable suspicion of drug activity.

The opinion continued, by observing:

“The trial court concluded that the consent to search was voluntary; however, this conclusion was reached by the court in light of its belief that there was a reasonable suspicion that the defendant was engaged in illegal drug activity. We have held that the court erred on its latter conclusion.”

The district court heard the evidence, observed the demeanor of the witnesses, and ruled: “In this case, the investigation done prior to this stop must be considered, applied and must be used in my mind to supply the reasonable suspicion.” We agree.

The Court of Appeals engaged in evidence reweighing when it concluded that the events at the suspected residence did not amount to reasonable suspicion of drug activity.

We said recently:

“ ‘Reasonable suspicion’ means a particularized and objective basis for suspecting the person stopped is involved in criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less rehable than that required to show probable cause. Roth reasonable suspicion and probable cause are dependent upon the content of information possessed by the detaining authority and the information’s degree of reliability. Quantity and quality are considered in the totality of the circumstances — the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.” State v. DeMarco, 263 Kan. 727, Syl. ¶ 4.

The Court of Appeals observed: “The record does not indicate when the decision was made not to ticket the driver; however, Officer Price testified that during Fettke’s search of the defendant, the driver was not free to go.” However, it is important to note that the record reflects a clarification not referenced by the Court of Appeals. The State clarified Price’s testimony by asking: “When you say that the driver was not free to go, you mean that he had been stopped for a traffic violation, he was being searched of his person and that was being conducted at that time and then Mr. Hardyway was being conducted of a search of his person?” Officer Price responded, “That’s correct.”

When a consent to search and a seizure is challenged as involuntary, the prosecution must establish the fact of voluntariness by a preponderance of the evidence, and not by clear and positive evidence or evidence beyond a reasonable doubt. State v. Buckner, 223 Kan. 138, Syl. ¶ 2, 574 P.2d 918 (1977).

The Court of Appeals relied on U. S. v. Recalde, 761 F.2d 1448 (10th Cir. 1985) “We believe that Detective Fettke’s testimony as to the voluntary nature of the defendant’s consent is so devoid of details as to make a totality of the circumstances analysis impossible in light of the higher, but undefined, burden of proof placed on the State by Recalde.” (Emphasis added). Recalde, a resident alien, was convicted of possession and intent to distribute cocaine. On appeal, he argued that the district court erred in denying his motion to suppress evidence seized during a search of his car. The police had stopped Recalde for speeding, requested his driver’s license and registration, and then returned to the police car to perform a computer check. The officer testified that he had a “gut instinct” Recalde was transporting narcotics. After performing the computer check, the officer asked Recalde to step out of the car. He inquired if Recalde owned the car and if the officer could look in the trunk. Recalde consented. Nothing suspicious was found in the trunk. Recalde was escorted to the state police station between two police cars. The officers retained possession of his driver’s license and registration. When they arrived, Recalde was placed in a small room and given Miranda warnings. In response to several questions, he again consented to a search of his car, and cocaine was discovered inside the car’s interior quarter panels. 761 F.2d at 1451-52.

The federal district court’s determination that Recalde’s consent to search his car was voluntary was reversed. The Tenth Circuit found that under the circumstances, the consent was obtained in coercive circumstances and was involuntary. Recalde could not speak English well. He had (1) been seized from the highway; (2) been escorted between two police cars to an empty police station by police officers who kept his driver’s license and registration; and (3) never been told he was free to go. 761 F.2d at 1459.

The Recalde facts as well as the reasoning developed from those facts do not fit here. (We note Recalde is a split opinion with McWilliams, J., dissenting and Winder, J., an assigned district judge, joining Seymour, J., to form the majority.)

U.S. v. Villa-Chaparro, 115 F.3d 797 (10th Cir. 1997), provides us with a recent Fourth Amendment traffic stop search and seizure view from the Tenth Circuit. Villa-Chaparro also involved a denial of a motion to suppress evidence arising from an alleged illegal stop and detention.

Villa-Chaparro teaches:

“When reviewing a district court’s denial of a motion to suppress, we consider the totality of the circumstances and view the evidence in a light most favorable to the government. [Citation omitted.] We accept the district court’s factual findings unless those findings are clearly erroneous. Id. Judging the credibility of the witnesses, determining the weight to be afforded the testimony, and drawing reasonable inferences and conclusions from the testimony, are within the province of the district court. [Citation omitted.]

“The district court’s ultimate determination of reasonableness underthe Fourth Amendment is a question of law reviewable de novo. [Citation omitted.] However, we view the officer’s conduct, as must the district court, with ‘common sense’ considering ‘ordinary human experience.’ [Citation omitted.] As we stated in United States v. Alvarez, 68 F.3d 1242, 1244 (10th Cir. 1995), cert. denied, 517 U.S. 1143, 116 S. Ct. 1436, 134 L. Ed. 2d 557 (1996): “This approach is intended to avoid unrealistic second-guessing of police officers’ decisions and to accord appropriate deference to the ability of a trained law enforcement officer to distinguish between innocent and suspicious actions.’ [Citation omitted.]” 115 F.3d at 800-01.

We agree.

Our conclusion in DeMarco is appropriate here:

‘We are guided by our standard of review. We have viewed the videotape; however, the district judge heard the witnesses and observed their demeanor. We will not substitute our view of the evidence for that of the district court when, as here, the motion to suppress is supported by substantial evidence. State v. Baston, 261 Kan. 100, Syl. ¶¶ 1-2, 928 P.2d 79 (1996). We do not find the minimum level of objective factors justifying reasonable suspicion necessary to overrule the district court.” 263 Kan. at 741.

In DeMarco we applied our standard of review and affirmed the district court in suppressing evidence. Here we apply the same review standard. In doing so, we affirm the district court’s analysis.

The Court of Appeals is reversed. The district court is affirmed.