State v. Jones

280 P.3d 824, 47 Kan. App. 2d 866

Opinions

Greene, C.J.:

The State of Kansas perfects this interlocutory appeal of the district court’s order suppressing evidence resulting from a warrantless search of a vehicle incident to a traffic stop, which evidence led to charges against Kala Jones for possession of cocaine and possession of drug paraphernalia. Concluding that there was no reasonable suspicion to justify further detention of the suspect and that the detention for a drug dog to arrive unreasonably extended the suspect’s detention, we affirm the district court’s suppression of evidence found after the drug dog alerted on the suspect’s vehicle.

Factual and Procedural Background

In the early morning hours of November 16, 2010, Officer Bill Powers of the Garden City Police Department observed a vehicle driven by Kala Jones and stopped the vehicle for “driving erratically” or “the actions of driving odd.” These actions included the failure to use a turn signal. When the officer approached Jones, he noticed that “she was angry. She was upset that I had stopped her. Her mouth appeared to be dry, to me, like she had cotton mouth. And her words were slurred.” He did not smell alcohol or drugs on the driver’s person or in the vehicle. The officer’s testimony sometimes also mentioned bloodshot eyes, but his testimony was not consistent on this, and his written report failed to mention this observation. The officer also observed the comer of an empty plastic sandwich bag inside the vehicle.

Based upon these observations, the officer did not proceed with an investigation for driving under the influence of dmgs or alcohol, but rather sought the driver’s identification and then asked her to step from the vehicle. When the driver denied the officer permission to search the vehicle, the officer contacted his supervisor, Sergeant Martinez, who arrived at the scene “probably 15 minutes after” the vehicle was stopped. After the officer conferred with his supervisor, they decided to ask all vehicle occupants to exit the car and to call for a K-9 unit. The precise time that elapsed waiting for the K-9 unit is in dispute, but the elapsed time was apparently somewhere between 20 and 40 minutes based upon the competing testimony of the officer and Jones. (We also note that the officer’s testimony regarding the elapsed times during various stages of his detention of Jones were not consistent.) The vehicle stop occurred no earlier than 12:40 a.m. and no later than 2 a.m., and Jones was booked at the detention center about 3 a.m.

At the traffic stop, the K-9 unit alerted on the vehicle, and drugs and paraphernalia were ultimately found, leading to die charges against Jones. The district magistrate judge initially denied the suppression motion, but the district court granted the suppression motion. The district court’s memorandum opinion made no findings on the elapsed time of the detention, but it related the conflict in the evidence as noted above. The key findings or conclusions of the district court were:

“13. It is this Court’s finding, based upon the testimony, that the officer was playing a hunch and the traffic stop and the ticket for no use of a turn signal was merely a pretext to hold the Defendant illegally for as long as necessary to get a K-9 unit there in the hope of securing a probable cause finding for searching the vehicle.

“14. If a traffic citation was justified, the officer had only as long as it was reasonably necessary to write the ticket and then release the Defendant to go on her way. Obviously since no ticket was ever wrote, it adds weight to the claim that the stop was only a pretext and that the officer violated the Defendant’s constitutional right against unreasonable search and seizure! ].”

The State timely appeals this ruling.

Standards of Review

In reviewing an order suppressing evidence, an appellate court generally reviews the factual findings underlying the district court’s suppression decision using a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by applying a de novo standard. This court does not reweigh the evidence. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). This court ordinarily presumes the district court found all facts necessary to support its judgment, unless the record on appeal fails to support that presumption. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009); Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). The State has the burden of proving that a search or seizure was lawful. State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).

Whether reasonable suspicion exists is a question of law and is reviewed de novo. In reviewing an officer’s belief of reasonable suspicion, this court determines whether the totality of the circum stances justified the detention. State v. Walker, 292 Kan. 1, Syl. ¶¶ 5, 6, 251 P.3d 618 (2011).

Did the Court Err in Suppressing the Evidence Resulting from the K-9 Alert During the Detention of Jones?

The State challenges the district court’s suppression decision, arguing that the officer “had developed independent reasonable suspicion to extend the duration of the traffic stop and investigate a possible drug violation.” We review the general principles governing traffic stops and the development of reasonable suspicion as a part thereof.

General Principles

The Fourth Amendment to the United States Constitution provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” U.S. Const, amend. IV. A traffic violation provides an objectively valid reason for conducting a traffic stop; thus, an initial seizure of the driver is not deemed unreasonable, even if the stop is pretextual. State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007).

During a routine traffic stop, a law enforcement officer may request a driver’s license, proof of insurance, and vehicle registration; run a computer check; and issue a citation. When the driver has produced a valid license and proof that he or she is entitled to operate the car, tire driver must be allowed to proceed on his or her way, without being subject to further delay by the officer for additional questioning. In order to justify a temporary detention for further questioning, the officer must have either consent or reasonable suspicion of the presence of illegal drugs or of some other serious crime. See State v. Mitchell, 265 Kan. 238, Syl. ¶ 4, 960 P.2d 200 (1998).

An officer’s inquiries or actions unrelated to the justification for an initial traffic stop do not convert the stop into an unlawful seizure so long as they do not measurably extend or prolong the stop. In the absence of consent, an officer may expand the duration of the detention beyond the initial stop when the responses of a detainee and the circumstances relating to the stop give rise to suspicions of a crime unrelated to the traffic offense. The officer may then satisfy those suspicions, graduating the police response to the demands of the situation. See State v. Morlock, 289 Kan. 980, 995-96, 218 P.3d 801 (2009). But an officer may expand the detention beyond the purposes of the initial stop only if there is an objectively reasonable and articulable suspicion that criminal activity was or is taking place. See State v. Thomas, 291 Kan. 676, Syl. ¶ 8, 246 P.3d 678 (2011).

Reasonable suspicion is a less demanding standard than probable cause and requires a showing of considerably less than a preponderance of the evidence, but the United States Constitution requires at least a minimal level of objective justification. The officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of possible criminal activity. Thomas, 291 Kan. at 688. In assessing factors articulated to support reasonable suspicion, we do not prioritize or pigeonhole each factor, but rather determine whether the totality of the circumstances justifies further detention. State v. DeMarco, 263 Kan. 727, 734-45, 952 P.2d 1276 (1998) (pigeonholing prohibited); see State v. Thompson, 284 Kan. 763, Syl. ¶ 20, 166 P.3d 1015 (2007) (no one factor legally dispositive). Quantity and quality are considered in the totality of the circumstances or “the whole picture” that must be taken into account when evaluating whether there is reasonable suspicion. DeMarco, 263 Kan. at 735.

Application

Here, the officer was asked a direct question about the basis of any suspicion. At the initial suppression hearing before the magistrate judge, he stated, “She had cotton mouth, dry mouth. . . . Her eyes were bloodshot. Her words were slurry. I saw a clear plastic baggy inside of the truck.” At the suppression hearing before the district court, however, when asked what he observed that was “out of the ordinary” about Jones, he indicated, “[J]ust slurred speech and the cotton mouth” and then added his observation of “a clear plastic baggy.” At no time did the officer indicate that his reasonable suspicion was based in part on the driving violations that formed the basis of his vehicle stop. Based on these factors, the officer believed “there was the presence of controlled substances within the truck.” He did not proceed with a DUI investigation.

Were these articulated factors sufficient to create a reasonable suspicion that there were controlled substances within the truck? Critical to our analysis is the fact that we are not examining whether these factors would have supported reasonable suspicion of DUI, but rather whether they supported reasonable suspicion of transporting controlled substances. Also critical to this determination is that we cannot consider the other factors urged by the State such as bloodshot eyes or erratic driving because they were not articulated by the officer to the district court as a basis for his extended detention of Jones. See State v. Johnson, 293 Kan. 1, Syl. ¶ 4, 259 P.3d 719 (2012) (officer must be able to articulate reasonable suspicion beyond hunch of criminal activity); State v. Blaylock, No. 104,146, unpublished opinion filed January 28, 2011 (State cannot bootstrap different bases for reasonable suspicion beyond those articulated by the officer making the stop).

Although our dissenting colleague would apparently remand for the arresting officer to clarify his testimony regarding the story of Jones’ erratic driving — a fact that he failed to mention as a basis for his stop — we respectfully disagree that any remand is appropriate. Our refusal to consider Jones’ alleged erratic driving does not convert our analysis into a subjective test, nor does it somehow constitute “de novo fact finding.” We have made no findings on the issue, and we simply adhere to three important rules in such cases: (1) The State has the burden of proof in these matters, and we decline to provide it with a second bite of the apple if the officer has had adequate opportunity to explain the basis for a vehicle stop and has failed to articulate other facts that might have supported the stop. See State v. Greener, 286 Kan. 124, 133, 184 P.3d 788 (2007); (2) We have always focused on the officer’s “ability to articulate” his or her basis for the stop; i.e., no post-hoc bootstrapping is permitted. See Blaylock, slip op. at 3; and (3) Analysis of the officer’s articulation of the factual basis has nothing to do with the subjectivity that we seek to avoid; we look at the purported factual basis in determining whether an objective officer would have a reasonable and articulable suspicion — and we avoid the specific officer’s subjective thought process. See United States v. Foreman, 369 F.3d 776, 781 (4th Cir. 2004). We must also avoid embelhshing the officer’s account after the fact or remanding with clear directions or implication that the erratic driving fact should be articulated on a second attempt by the arresting officer.

The observation of slurred speech and “cotton mouth” may — to an experienced officer — indicate that alcohol or drugs have been recently consumed. We have often found that slurred speech— coupled with other factors — may support reasonable suspicion that one is intoxicated or has been driving under the influence. See, e.g., State v. Kendall, 274 Kan. 1003, 1013, 58 P.3d 660 (2002) (slurred speech is an indicator suspect is intoxicated); State v. Wahweotten, 36 Kan. App. 2d 568, 591, 143 P.3d 58 (2006), rev. denied 283 Kan. 933 (2007). The State cites no caselaw, however, to suggest that either of these factors would tend to support a suspicion that the vehicle is transporting controlled substances. Our review of applicable caselaw has revealed only some indication that the factor of intoxication may be considered in determining probable cause the person may be possessing drugs on his or her person. See State v. Ramirez, 278 Kan. 402, 407-08, 100 P.3d 94 (2004). We view this as distinct from a factor indicating transportation of drugs within the vehicle.

The observation of the empty plastic sandwich baggy is not an impressive factor. See Ramirez, 278 Kan. at 408 (quoting 2 LaFave, Search and Seizure § 3.6, pp. 299-301 [1996] [observation of person in possession of certain packaging which on other occasions has been found to conceal narcotics does not, standing alone, constitute probable cause]). Granted, contraband is frequently transported in such baggies, but the State cites no caselaw to suggest that the presence of an empty plastic baggy in a vehicle may be considered a factor tending to support a reasonable suspicion that the vehicle is transporting other controlled substances. We are to evaluate such factors employing common sense and ordinary human experience (see United States v. Wood, 106 F.3d 942, 946 [10th Cir. 1997]); such plastic sandwich baggies have a multitude of innocent uses and are frequently utilized in packing innocent substances for travel purposes. Moreover, if we accord reasonable deference to a law enforcement officer’s ability to distinguish between innocent and suspicious activity (see Walker, 292 Kan. 1, Syl. ¶ 6), we believe that tire empty baggy to a trained law enforcement officer would tend more often to support the fact that drugs had already been consumed or thrown out of the vehicle rather than a suspicion that other controlled substances were still in the vehicle. Again, we are not impressed with this factor. See State v. Armstrong, No. 93,941, 2006 WL 1668767, at *6 (Kan. App. 2006) (unpublished opinion) (citing State v. Schneider, 32 Kan. App. 2d 258, 264, 80 P.3d 1184 [2003] [courts have been reluctant to place too much stock in the possession of items which are legal to possess]).

The State has also urged us to consider how reasonable suspicion is “strengthened by Officer Powers’ extensive training and experience in investigating drug crimes.” Although we have been willing to give some degree of deference to the officer’s ability to distinguish suspicious activity, we will not abdicate our role in making a de novo legal determination of reasonable suspicion. As our Supreme Court has cautioned:

“We do not advocate a total, or substantial, deference to law enforcement’s opinion concerning the presence of reasonable suspicion. The officers may possess nothing more than an ‘inchoate and unparticularized suspicion’ or ‘hunch’ of criminal activity. [Citation omitted.] Such a level of deference would be an abdication of our role to make a de novo determination of reasonable suspicion.” Moore, 283 Kan. at 359.

Evaluating the factors within the totality of the circumstances, they may have been sufficient to support a further investigation for DUI. This is not the question before us, however, and it was not the course chosen by this officer; instead, he chose to abandon any investigation of DUI and detain Jones for further investigation of transporting controlled substances — including the employment of a drug-sniffing dog to examine the vehicle. We simply cannot conclude that the factors articulated would support reasonable suspicion, especially given the State’s burden in the matter. For this reason alone, the district court did not err in suppressing the evidence.

Even If Reasonable Suspicion Had Existed, Did the Officer Unreasonably Extend the Detention?

Even if we had found that reasonable suspicion existed to support the extension of Jones’ detention, the next step would have necessarily been to determine whether the detention was reasonably extended or was of a lawful duration. See State v. Coleman, 292 Kan. 813, 821, 257 P.3d 320 (2011). For purposes of avoiding remand for consideration in the event that our views on reasonable suspicion do not prevail, we turn to this inquiry.

Our dissenting colleague suggests this issue was not raised in district court or on appeal and should not be considered. Again, we respectfully disagree. The argument first appears in Jones’ motion to suppress, where her counsel stated that “[e]ven if the initial contact was appropriate, the detention exceeded the initial scope of the stop when Officer Powers continued to detain Ms. Jones At the initial motion hearing, Jones’ counsel stated, “At that point Officer Powers should have let my client go home. However, . . . we’re not sure exactly how long she was held. . . . This was a very long detention.” At the second suppression hearing, Jones’ counsel stated, “An officer cannot detain a person once they provide these valid documents on a mere hunch or a suspicion. There has to be something more. ... It wasn’t just a short stop either.” On appeal, the State argues that “the amount of time that elapsed under either Officer Powers’ or the Defendant’s version of event did not impermissibly extend the duration of the traffic stop beyond its lawful scope.” Jones’ appellate brief responded that “[w]hether she was held almost an hour or two hours is not the issue. Without reasonable suspicion that a crime was being committed, Officer Powers had no right under the law to detain her at all . . . .” Clearly, this issue was raised below and has been argued on appeal.

A traffic stop may not exceed the duration necessary to cany out the purpose of the stop. Morlock, 289 Kan. at 988-89. Detaining a driver for even a few minutes in order to allow a drug-sniffing dog to arrive unreasonably extends the detention when the officer did not need additional time to ask exploratory questions or to write a traffic citation. See Coleman, 292 Kan. at 822; Mitchell, 265 Kan. 238, Syl. ¶ 3.

Here, according to the officer’s initial testimony, Jones’ detention was extended at “5 to 10 minutes” for the arrival of the officer’s supervisor, and “maybe 15 to 20 minutes” for the arrival of the drug dog, or at least 20 to 30 minutes. Our dissenting colleague cannot find support for these facts and prefers to rely on the officer’s second version of the timing, wherein the officer stated that the entire time of detention was “15, 20 minutes tops.” The dissenter then suggests once again that we have engaged in “de novo fact finding.” We respectfully disagree. We have simply taken the officer at his word and analyzed the encounter based on the best possible scenario for law enforcement: Jones was detained for at least 20 to 30 minutes. If this detention cannot survive scrutiny, there is little reason to remand for further fact finding, especially because the State has conceded that “the traffic stop of the defendant’s truck was extended beyond the time normally allotted for a traffic stop for failure to use a turn signal.”

A detention of 20 to 30 minutes is within 5 minutes of the duration of the unlawful detention in Coleman, which was 35 minutes “while he waited for backup officers and, eventually, a parole officer to arrive.” 292 Kan. at 822. Again, there our Supreme Court clearly and unequivocally stated that “[detaining a driver for even a few minutes in order to allow a drug-sniffing dog to arrive unreasonably extends the detention when the officer did not need additional time to ask exploratory questions or to write a traffic citation.” 292 Kan. at 822. Here, the officer did not need to nor did he ask further questions of Jones, and he elected to abandon an investigation for DUI or to write a citation for a traffic offense— he detained Jones while he waited for his supervisor and then the drug-sniffing dog to arrive. Under the controlling precedent of Coleman, we hold that the detention of Jones was unreasonably prolonged and this alone would justify suppression of the evidence ultimately discovered through use of the K-9 unit, even if the officer had gained reasonable suspicion that the vehicle may have contained controlled substances. Here, we note with respect that our dissenter overlooks the fact that even if there was any reasonable suspicion developed at all, it may have supported an investigation for DUI, but not for possession of controlled substances, and DUI is not generally pursued by using a drug-sniffing dog.

The State has cited two federal cases to support its argument that the time that elapsed awaiting the drug dog did not impermissibly extend the duration of the traffic stop beyond its lawful scope. Federal Circuit Court of Appeals cases are not binding on this court, but they can be considered persuasive. Thompson, 284 Kan. at 801. In United States v. Rosborough, 366 F.3d 1145 (10th Cir. 2004), a canine unit arrived approximately 45 minutes into a consensual search of the vehicle; but this is to be distinguished from the case before us both because that search was consensual and the officers were in the process of searching during the entire time while awaiting the canine unit. In United States v. White, 42 F.3d 457 (8th Cir. 1994), a canine unit arrived 1 hour and 20 minutes after being summoned during a consensual search of a vehicle, but — again—the search was consensual and was also supported by a specific reasonable suspicion that boxes found in the vehicle contained drugs. We are not persuaded that either of these cases should cause this court to depart the controlling precedent of our own Supreme Court in Coleman.

We note that this outcome is identical to that of the district court, albeit for different reasons. The district court apparently relied in part — if not entirely — on the pretextual nature of the initial stop. This was error because a pretextual stop is not improper so long as there is an objectively valid reason to effectuate it. See Anderson, 281 Kan. at 901. Therefore, we affirm the district court’s judgment on somewhat different grounds, as is our prerogative. See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008).

Affirmed.