State v. Hogan

252 P.3d 627, 45 Kan. App. 2d 715
CourtCourt of Appeals of Kansas
DecidedApril 15, 2011
Docket102,681
StatusPublished
Cited by3 cases

This text of 252 P.3d 627 (State v. Hogan) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hogan, 252 P.3d 627, 45 Kan. App. 2d 715 (kanctapp 2011).

Opinions

Greene, C.J.:

Joseph C. Hogan appeals his convictions for possession of methamphetamine and no drug tax stamp, arguing the [717]*717district court erred in denying his motion to suppress the evidence obtained in a search of his vehicle. Concluding the search was not consensual, we reverse the district court and remand for further proceedings.

Factual and Procedural Background

Hogan’s vehicle was stopped by officers after his brake light and taillights did not appear to function and he failed to signal a lane change. He does not challenge the stop. What occurred thereafter was disputed, with the two officers present at the stop relating different stories, and Hogan offering yet a third version.

Officer Christopher Robinson testified at the motion to suppress that it was his partner, Officer William Crowe, who first made contact with Hogan, as Robinson approached the passenger side of Hogan’s vehicle. Robinson said that he could hear the conversation between Crowe and Hogan, but he could not recall if Hogan was able to produce a valid registration for the vehicle and also could not tell when or if Crowe returned Hogan’s identification papers to Hogan. In any event, Robinson testified that during the interchange between Crowe and Hogan, Robinson observed that there was a baseball bat and a puppy in the back seat of Hogan’s vehicle, and that when Robinson mentioned the bat to Hogan, he began sweating profusely, became nervous, and began stuttering. This purportedly led Robinson to believe there maybe other weapons in the vehicle.

In contrast, Officer Crowe testified that Robinson made the contact with Hogan as Crowe approached the passenger’s side of the vehicle. According to Crowe, “Robinson had the initial conversation and probably had most of it,” but Crowe wrote the citation and then handed it to Robinson. Crowe remembered that Hogan handed Robinson his driver’s license and later produced proof of insurance. Crowe recalled that while observing the passenger side of the vehicle he noticed a small dog along with a backpack on the rear floorboard.. He also noticed what he recognized as a book safe in the right front passenger’s seat and that these are “generally” used to “store cash and narcotics.”

[718]*718Both officers agreed that Hogan was moved to the rear of the vehicle to look at the defective lights, and that he remained there until the citation was presented. Crowe said he returned Hogan’s driver’s license when the citation was presented, Crowe told Hogan he was free to go, and the officers started to walk back to their vehicle. Hogan returned to the driver’s side of his vehicle and began to look at the vehicle’s fuse box when Robinson asked him if he could search for weapons. At this point, the officers’ testimony again diverged. .

Robinson testified that after starting back to the patrol car, he stopped and asked Hogan if he could search the vehicle to see if there were weapons inside the vehicle. Hogan denied having-any weapons; whereupon Robinson asked, “Do you mind if I search your vehicle for some weapons?” Then, Hogan walked to the back of his car, opened his trunk, and said there were no guns in the trunk. Robinson then repeated his question a third time, and Hogan said, “[Y]eah, go ahead.” Rather than begin the search in the trunk, however, Robinson began to search the back seat and noticed a black bag. He then had additional conversation with Hogan, wherein Hogan said, “[H]ey, that is my personal stuff.” Robinson said, “[Y]ou said I could search, correct?” Hogan then said, “[G]o ahead.” A search of the black bag revealed a red scale with residue on it and some small clear plastic baggies. Robinson then found the book safe, found a key, opened it, and found paraphernalia consisting of “baggies, pipes, and miscellaneous items.” Hogan was then arrested, and a search of his person revealed two baggies of crystal methamphetamine.

Crowe remembers these search details somewhat differently. When Robinson asked if Hogan had guns in his vehicle, Hogan denied it. Robinson asked again to “clarify” and heard Hogan give consent to search. The search began at the driver’s door where a big filet knife was found, giving rise to a conversation wherein Hogan warned Robinson the knife was really sharp and was used at his previous place of employment. As Robinson then began to search the back seat area, Hogan protested and said, “[T]hat’s my personal private property back there.” Robinson stopped, and Hogan opened his trunk, said he did not have any weapons, and of[719]*719fered his consent to search the trunk. Robinson, however, merely continued looking in the back seat despite no further request to continue that search. Crowe stated that he did not hear Robinson ask for permission to continue the search of the back seat and instead said that Hogan reiterated that the officers could search the trunk. After Robinson was observed searching in the back seat, he advised Crowe to place Hogan under arrest. Crowe was not asked about where in the sequence of events the book safe was opened, but they had to break the lock after Hogan denied that it 'was his.

Hogan testified that prior to Robinson asking to search his vehicle, no paperwork had been returned to him. Hogan also specifically denied being advised that he was free to go and stated that the officers had not walked away before asking for permission to search. Hogan stated that he never felt as though he was free to leave. He was asked for no further details of the encounter.

Hogan was charged with possession of methamphetamine and no drug tax stamp. He filed a motion to suppress, and it was at a hearing on that motion that the testimony cited above was adduced. Thereafter, the district judge initially took the matter under advisement, stating that he was not sure “which way it’s going to go.” The court’s order made findings and conclusions, including the following:

“12. This Court finds it is more probably true than not that prior to the Officer Robinson’s request to search or search:
a) Officer Crowe returned Mr. Hogan’s drivers’ license, gave him a citation and told him he was free to leave;
b) Officers Crowe and Robinson had started to walk back to their patrol ■ vehicle;
c) both officers were wearing their SCAT police uniforms and their department issued side arms; [and]
d) the officers were driving/riding in a marked police vehicle with the overhead light bar flashing.
“13. While other facts concerning a small organizer, a backpack, the book-like safe, a small dog and Mr. Hogan being nervous, sweating, stuttering were presented, it is clear that the state is relying solely on consent to justify the search in this case. . . .
[720]*720“19. In comparing and weighing the factors necessary for a valid consensual extension in this case with those reviewed in Thompson, [284 Kan. 763 (2007),] the facts in Mr. Hogan’s case are similar. They are also similar to those in the unpublished case, State v. Toevs, [No. 100,065, unpublished opinion filed December 19, 2008], It is apparent that the result here should be consistent with the majority view in Thompson.
“20. Like Thompson and Toevs, Mr. Hogan was lawfully stopped for a traffic violation. Instead of ‘have a nice day,’ Officer Robinson told Mr.

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State v. Hogan
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Cite This Page — Counsel Stack

Bluebook (online)
252 P.3d 627, 45 Kan. App. 2d 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hogan-kanctapp-2011.