State v. Nugent

811 P.2d 890, 15 Kan. App. 2d 554, 1991 Kan. App. LEXIS 345
CourtCourt of Appeals of Kansas
DecidedMay 17, 1991
DocketNo. 65,410
StatusPublished
Cited by3 cases

This text of 811 P.2d 890 (State v. Nugent) 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. Nugent, 811 P.2d 890, 15 Kan. App. 2d 554, 1991 Kan. App. LEXIS 345 (kanctapp 1991).

Opinion

Brazil, J.:

Floyd M. Nugent appeals his conviction of robbery, K.S.A. 21-3426, claiming the court erred by failing to suppress the victim’s on-scene identification and all items seized from his van pursuant to a search incident to his arrest. Nugent claims that, although Officer Craig Caster may have had articulable suspicion to stop him, Caster’s actions exceeded that of a stop pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and constituted an arrest without probable cause. We affirm, finding no reversible error.

Dorothy L. Wages had opened the Texaco gas station at 7720 State Line Road in Prairie Village, Kansas. She heard someone enter the store. It was 6:39 a.m. Wages turned and saw a black male wearing a white baseball cap; a blue bandana covering the [555]*555lower part of his face; a hooded, long-sleeved, blue sweatshirt; and fairly new blue jeans. The man’s left hand was in his sweatshirt pocket. The man said to Wages, “Give me your money.” Wages responded she could not open the cash register. He then said, “Give me your damn money,” and slammed his right fist on the counter. While Wages was opening the register, she pushed an alarm button that sounded at the police department. Wages removed the money from the register. She also removed two dollars that tripped an automatic alarm that also alerted the police. Wages handed the money to the man, who took it and exited the west door of the station. When he was leaving, Wages noticed he wore very white tennis shoes, which looked brand new. Wages watched the man head north towards the Southgate Financial Center. Texaco is situated on the west side of State Line just south of Cambridge Road. Southgate Financial is located across the street from Texaco on the north side of Cambridge^ on State Line. Wages estimated $85 to $95 had been taken. An audit showed $93 missing.

Police Officer Caster and Sergeant Ozorkiewicz, each in their own squad car, were about two blocks away from the Texaco station when the alarm went out. While the officers were en route to the Texaco station, the dispatcher informed them that an armed robbery had just occurred and a suspect described as a black male was running north through the Southgate parking lot on the west side. He was wearing a white cap, blue hooded sweatshirt, blue jeans, blue bandana, and white tennis shoes. They arrived at the scene about a minute after the dispatch. Ozorkiewicz went to Texaco, and Casier went to the Southgate parking lot.

Caster drove north through the lot then turned on the north end heading east. He saw a black van backed into the building on the north side facing north. It was the only vehicle in the lot. About one and a half to two minutes had elapsed from the first alarm until he saw the van. Caster drove by the van and looked in and saw a black man sitting inside with “a very worried look on his face.” The man was not wearing a shirt or cap. Caster continued past the van about 10 to 15 feet. He slowed to go back and look at the van, but the man had hurriedly driven away. Caster exited the lot onto State Line then turned onto 76th Street [556]*556heading west. He approached the van, which was going east on 76th Street, activated his emergency lights, and stopped the van. The man quickly exited the van while Caster was still in his car. The man said, “What did I do?” He was wearing blue jeans and white tennis shoes. The left side of the man’s body was obscured from view. Caster got out of his car with his shotgun drawn, ordered the man (Nugent) down on the ground, and handcuffed him. He testified he did so for his safety. Nugent was on the ground for about 30 seconds. Caster then stood him up, and, at that time, Ozorkiewicz arrived with Wages to identify the man. Wages positively identified Nugent as the robber. At that time, Nugent was told he was under arrest. In a search incident to the arrest, police found a blue hooded sweatshirt, a whitish baseball cap, and a blue bandana under the driver’s seat. They also found a wad of money in small bills, surgical rubber gloves, and chrome pliers in the front pocket of the sweatshirt.

Nugent argues Caster’s actions exceeded a Terry stop and that the evidence seized must be suppressed since he was arrested without probable cause. The State responds the court’s denial of Nugent’s motion to suppress was correct as it was reasonable under the circumstances for Caster to display his shotgun and place Nugent in handcuffs before he was identified by the victim and arrested about 30 seconds later.

“If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court.” State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979).

The Kansas stop and frisk rule is codified in K.S.A. 1990 Supp. 22-2402 and provides:

“Stopping of suspect. (1) Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand . . . the name [and] address of such suspect and an explanation of such suspect’s actions.
“(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that such officer’s personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, such officer may take and keep it until the completion of the ques[557]*557tioning, at which time such officer shall either return it, if lawfully possessed, or arrest such person.”

The Judicial Council Notes to 22-2402 cite Terry v. Ohio for justification for and limitations applicable to the power to search a person before an arrest. It cites in part:

“When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”

A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies which justify its initiation. See Warden v. Hayden, 387 U.S. 294, 298-300, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967). The search must be limited to that which is necessary for the discovery of weapons that might be used to harm the officer or others nearby. It may be characterized as something less than a “full” search, although it remains a serious intrusion.

A search under K.S.A. 1990 Supp.

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Cite This Page — Counsel Stack

Bluebook (online)
811 P.2d 890, 15 Kan. App. 2d 554, 1991 Kan. App. LEXIS 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nugent-kanctapp-1991.