Opinion
No. 108,637.
2013-06-14
In the Matter of M.G., DOB:xx–xx–1994.
Appeal from Wyandotte District Court; Michael A. Russell, Judge. James T. Yoakum, of Kansas City, for appellant. Logan McRae, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Michael A. Russell, Judge.
James T. Yoakum, of Kansas City, for appellant. Logan McRae, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
M.G., a minor, appeals his adjudication of guilt on charges of felony possession of methamphetamine and misdemeanor possession of marijuana. M.G. challenges the district court's denial of his motion to suppress, claiming officers lacked reasonable suspicion to detain and search him and the lawfully parked car on private business property in which he was a passenger. We affirm.
FACTS
On November 15, 2011, the State charged M.G. in juvenile court with possession of methamphetamine, a severity level 4 drug felony, in violation of K.S.A.2011 Supp. 21–5706(a) and possession of marijuana, a class A nonperson misdemeanor, in violation of K.S.A.2011 Supp. 21–5706(b)(3). M.G. filed a motion to suppress the drugs, arguing the officers did not have “any legal reason to question or detain [M.G.], or any other occupant of the vehicle.” After the district court denied M.G.'s motion to suppress, the court adjudicated M.G. guilty based on the following stipulated facts:
“1. On November 12, 2011, at approximately 5:45 p.m. Officer Magee spotted a Ford Crown Victoria at the Conoco gas station on 7th and Kansas Avenue in Kansas City, Wyandotte County, KS. Officer Magee was aware of several robberies that had previously occurred at this gas station. The Ford Crown Victoria was reversed into the parking area of the gas station and was not in a designated parking spot.
“2. Officer Smith attempted to follow the same vehicle about 20 minutes prior to Officer Magee spotting the vehicle at the Conoco Station. However, Officer Smith was not able to follow the vehicle or make contact with its occupants because the vehicle made several quick turns to avoid the officer. He radioed to Officer Magee about the incident.
“3. At this point Officer Magee observed the vehicle for a period of 20 minutes. During this time of observation none of the passengers exited the vehicle, nor did anyone come from inside the gas station and enter the car. The occupants of the vehicle included the juvenile, [M.G.], who was in the passenger seat, [K.R.], the driver, and an infant A.B.P. (XX–XX–2010).
“4. Based on the vehicles suspicious behavior, Officer Magee decided to make contact with the occupants. Officer Magee activated his emergency lights and parked diagonally in front of the vehicle. As the officer approached the car, the passenger, who is the respondent in this case, raised his hands into the air. This sign of guilt or surrender further was not threatening. However, Officer Magee thought this was suspicious behavior, as he had never seen anyone else do this in his six years of experience.
“5. Officer Magee made contact with the juvenile. For officer safety purposes, the officer asked the juvenile if he had any weapons on him. The juvenile responded that he had a knife in his pocket. Officer Magee had the juvenile get out of the vehicle and he conducted a frisk to find the knife. After locating the knife, Officer Magee ordered the juvenile over to Officer Smith so he could further frisk the juvenile for officer safely.
“6. Officer Smith conducted a frisk for weapons and felt a bulge in the juvenile's groin area. Officer Smith thought the bulge was a handgun or other weapon. Officer Smith and Officer Magee then recovered the bulge from the juvenile's groin area, which turned out to be an amber colored see-through pill bottle.
“7. The pill bottle, which was see-through, contained suspected marijuana, suspected methamphetamine, and several pills. The substances were field tested and tested positive for the presumptive presence of THC and Methamphetamine.
“8. The juvenile was transported and booked into the Juvenile Detention Center.”
M.G. appeals the denial of his motion to suppress and the subsequent juvenile adjudication.
ANALYSIS
M.G. maintains the district court erred in denying his motion to suppress the drugs found on him because the officers lacked reasonable suspicion to detain and search him. When confronted with a challenge involving suppression of evidence, the State has the burden of demonstrating a challenged search or seizure was lawful. State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011).
An appellate court generally reviews a district court's decision on a motion to suppress using a bifurcated standard. The district court's findings are first reviewed to determine whether they are supported by substantial competent evidence. Appellate courts do not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. The ultimate legal conclusion regarding the suppression of evidence is then reviewed de novo. If the material facts in a district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. 293 Kan. at 4. The facts in this case are uncontested, and the parties stipulated to them before the bench trial.
Encounters between law enforcement officers and the public are generally classified under one of the following four categories: consensual encounters; investigatory detentions, also known as Terry stops; public safety stops; and arrests. State v. Hill, 281 Kan. 136, 141–42, 130 P.3d 1 (2006). The focus of our inquiry in this case is on Terry investigatory stops, named after the United States Supreme Court decision, Terry v. Ohio, 392 U.S. 1, 19–20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Court held that police may stop and frisk a person if they have reasonable suspicion that the person is engaged in criminal activity and when officers have a reasonable belief the person poses a safety concern. Our legislature has codified this rule under K.S.A. 22–2402.
At the outset, we note the parties agree an investigatory stop occurred when Officer Magee activated his emergency lights and parked diagonally in front of M.G.'s vehicle. See, e.g., State v. Walker, 292 Kan. 1, 6, 251 P.3d 618 (2011) (investigatory stop occurred when there was more than one officer, a display of weapon, physical contact by officer, use of commanding voice tone and sirens or lights, command to stop, and attempt to control ability to flee). M.G. was not free to terminate the encounter.
The dispute in this case is straightforward: Did the facts known to Officer Magee before he approached M.G.'s vehicle add up to a reasonable suspicion that criminal activity (specifically, the robbery of a convenience store) had occurred, was occurring, or was about to occur? “In making this determination, we look at the totality of the circumstances to determine whether a particularized and objective basis, viewed from the standpoint of an objectively reasonable police officer, existed for suspecting legal wrongdoing.” United States v. Lopez, 518 F.3d 790, 797 (10th Cir.2008) (citing United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 [2002] ). The point at which a person is seized is considered “critical” because at that point the officers must have knowledge of facts giving rise to reasonable suspicion that the person is committing, committed, or is about to commit a crime. State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003).
Reasonable suspicion is a much lower standard than probable cause and may be established with less reliable information. But similar to probable cause, reasonable suspicion depends on both the information possessed by police and its degree of reliability. Both quantity and quality are considered together in an examination of the totality of circumstances in determining whether reasonable suspicion exists. State v. Parker, 282 Kan. 584, 594, 147 P.3d 115 (2006). What is reasonable depends on the totality of circumstances in the view of a trained law enforcement officer. We have often repeated the statement that consideration of those circumstances compels a court to
“ ‘judge the officer's conduct in light of common sense and ordinary human experience. [Citation omitted.] “Our task ... is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious” [citation omitted], but to determine whether the totality of the circumstances justify the detention. [Citation omitted.] We make our determination with deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances, [citation omitted], remembering that reasonable suspicion represents a “minimum level of objective justification” which is “considerably less than proof of wrongdoing by a preponderance of the evidence.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 [1989].’ [Citation omitted.]” State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998).
The State argues that Officer Magee's detention of M.G. was supported by reasonable suspicion due to M.G.'s actions and the inaction of the vehicle in the parking lot. The State also found M.G.'s reaction to police contact to be highly suspicious. On the other hand, M.G. conversely argues that his actions prior to the investigatory stop were completely innocuous.
The Fourth Amendment to the United States Constitution protects the public from unreasonable searches and seizures including unreasonable investigatory stops or detentions. See United States v. Simpson, 609 F.3d 1140, 1146 (10th Cir.2010). Because what happened here was clearly an investigative detention rather than a custodial arrest, the principles originally set forth in Terry, 392 U.S. 1, guide our determination as to the reasonableness of that detention. In Terry, the Supreme Court held that not every restriction on personal privacy or liberty that amounts to a Fourth Amendment “search” or “seizure” must be justified by the degree of particularized suspicion reflected in the probable-cause standard. 392 U.S. at 22, 30. Rather, “the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be a foot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 30).
We must consider all the facts available to Officer Magee at the time:
• First, Officer Magee knew the convenience store was the target of past robberies.
• Second, Officer Magee did not take immediate action upon seeing the Ford Crown Victoria in the parking lot.
• Third, the Ford Crown Victoria was parked backwards in the parking lot near the front door of the convenience store.
• Fourth, Officer Smith testified that he called Officer Magee and told him about the Ford Crown Victoria eluding him earlier and to keep a heads-up for it.
• Fifth, Officer Smith testified that the vehicle that had eluded him earlier was the same one stopped by Officer Magee in the convenience store parking lot.
• Sixth, Officer Magee observed the Ford Crown Victoria for nearly 20 minutes. During that time period, no one entered or exited the vehicle.
• Seventh, as Officer Magee approached the vehicle, M.G. threw his hands up in the air.
We find that with this understanding of the entire factual scenario, Officer Magee had reasonable suspicion to approach M.G.'s vehicle for investigative purposes. The Supreme Court has explicitly rejected a “divide-and-conquer” approach to the reasonable-suspicion analysis. Arvizu, 534 U.S. at 274. Instead the approach is to look at whether the relevant facts “fit together into a cohesive, convincing picture of [possibly] illegal conduct.” United States v. Guerrero, 472 F.3d 784, 787 (10th Cir.2007). We believe that picture came into focus for Officer Magee.
Initially, Officer Magee had been informed by Officer Smith to be aware of a Crown Victoria that Officer Smith believed to be suspicious. While Officer Smith could not identify any illegal behavior that the Crown Victoria was involved in, he became suspicious when the Crown Victoria made several turns in quick succession which Officer Smith believed were made in an effort to elude him. Officer Magee located a Crown Victoria in the convenience store parking lot which he believed to be the same vehicle Officer Magee had encountered. Officer Smith eventually confirmed that the Crown Victoria at the convenience store was the same vehicle he observed earlier.
Officer Magee testified that the convenience store had been robbed before. An individual's presence in a high-crime neighborhood, here a place of business that had been robbed before, is not in itself sufficient to justify an investigative stop. See United States v. Dennison, 410 F.3d 1203, 1208 (10th Cir.2005) (stating that a defendant's “presence in a high-crime area is not, ‘standing alone,’ enough to provide reasonable suspicion, but it may be a ‘relevant contextual consideration’ in a Terry analysis” [quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ] ). However, “courts have repeatedly held that such a characteristic of the location of the stop [ i.e., its high-crime nature] is relevant to the analysis and may be taken into consideration.” United States v. McHugh, 639 F.3d 1250, 1257 (10th Cir.2011); see, e.g., Wardlow, 528 U.S. at 124 (“[O]fficers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.”).
To be sure, there are innocent reasons, as suggested by M.G., why the people would remain in their vehicle for an extended period of time—the occupants could have been feeding the baby, listening to songs on the radio, talking, or deciding where to go next. However, we are not troubled by the absence of any illegal conduct by M.G. Rather, the conduct observed by Officer Magee was not so innocuous or so very much in the realm of ordinary behavior that it would not lead a reasonable officer to suspect that a possibly robbery was imminent. We agree with the district court's perception of the events: “Common sense would tell you that—would dictate a finding that ... the occupants were not there to buy gas, nor were they there to purchase anything else, or to do any other business. [Officer Magee] described ... it as suspicious, so he pulled his vehicle in and blocked the vehicle.”
A series of acts, each of them perhaps innocent if viewed separately can warrant further investigation if taken as a whole. See Sokolow, 490 U.S. at 9–10. We may properly credit a police officer's experience and judgment. See Arvizu, 534 U.S. at 273 (suggesting that an officer may “draw on [his] own experience and specialized training to make inferences from and deductions about the cumulative information available to [him] that ‘might well elude an untrained person.’ “ [quoting United States v. Cortez, 449 U .S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ] ). Here, on the facts presented to him, it was clearly reasonable for Officer Magee to act on that experience and judgment.
Finally, M.G. downplays the significance of what happened as Officer Magee approached the vehicle. M.G. argues: “It is not so difficult to imagine that a 17–year old might be frightened by such a maneuver [Officer Magee blocking path with squad car] and raise his arms immediately in a gesture of surrender or ‘don't shoot.’ “ Furtive movements made in response to a police presence may properly contribute to an officer's suspicions. See, e.g., United States v. McGehee, 672 F.3d 860, 870 (10th Cir.2012) (holding that furtive actions may contribute to probable cause); United States v.. Edmonds, 240 F.3d 55, 61 (D.C.Cir.2001) (holding that a suspect's act of reaching under the driver's seat in response to a police presence can be factored into a reasonable-suspicion analysis as a “furtive” gesture); see also United States v. Brown, 334 F.3d 1161, 1167–68 (D.C.Cir.2003) (characterizing the act of a car passenger of jumping from the backseat to the front seat upon seeing the police as “furtive”). As Officer Magee explained, M.G.'s action was just another factor in the totality of the circumstances.
There may be many ways to explain M.G.'s behavior. However, a reasonable officer need not exclude every innocent explanation for an individual's conduct. The question is not whether there was a lawful explanation for M.G.'s conduct, but rather whether under the totality of the circumstances a reasonable officer could have viewed that conduct as furtive and suggestive of criminal activity. Considering all of the factual circumstances, a reasonable officer could have concluded that the somewhat unusual conduct of M.G. throwing his hands in the air was furtive and suggestive of criminal wrongdoing.
M.G. relies on the unpublished Tenth Circuit Court of Appeals' case of United States v. Dell, 487 Fed. Appx. 440 (10th Cir.2012). M.G. failed to attach a copy of this decision and has thus failed to comply with Supreme Court Rule 7.04(g)(2)(C) (2012 Kan. Ct. R. Annot. 58). As a result, this court will not consider any arguments made by appellant in reliance on the Dell decision.
Given the presence of objective indicators of criminal conduct in this case, a reasonable officer could permissibly take action to investigate—not only to confirm but also to dispel—the suspicion that criminal conduct was afoot. See, e.g., United States v. Johnson, 364 F.3d 1185, 1195 (10th Cir.2004) (noting that the officer “acted just as society would want its law enforcement officers to act when investigating a suspicious situation,” in that he did not do “any more than was necessary to negate or, as it turned out, confirm his suspicions”). We consider the totality of the circumstances as evincing sufficiently particularized and objective indicia of possible criminal conduct that a reasonable officer, in Officer Magee's position, would have been authorized to conduct a detention to investigate. In short, from the perspective of a reasonable officer, it would have been eminently reasonable to wonder whether some criminal activity was afoot based on what Officer Magee witnessed. The facts in this case presented sufficient reasonable suspicion to permit Officer Magee's detention of M.G. and the vehicle he was occupying.
Having determined that the detention of M.G. was permissible, it is equally clear that the search of M.G. was also permissible. Terry allows an officer to conduct a limited pat-down search of a suspect's outer clothing when the officer has a reasonable fear for his safety or the safety of others. 392 U.S. at 30;K.S.A. 22–2402(2). Officer Magee asked M.G. whether he had any weapons on him. M.G. candidly replied that he had a knife in his pocket. Officer Magee's pat-down search of M.G. was lawful and reasonable for officer safety. After Officer Magee located the knife, he requested Officer Smith to perform a more through pat-down search in order that he could keep visual contact with the driver. At this point, Officer Magee observed what he thought was a handgun-type shape wrapped in a bandanna in the vehicle. Officer safety was of utmost concern at this point.
Finally, a limited argument was made in appellant's brief that the detention and search was invalid because it was conducted on what the appellant claims is private property. Appellant's brief does not cite any specific authority in support of this argument. Under the holding in Terry, an officer may stop any person in a public place when there are specific and articulable facts creating a reasonable suspicion that the person has committed or is about to commit a crime. See K.S.A. 22–2402(1).
M.G. has misstated the standard by which the public and private nature of the scene is judged. For purposes of the Fourth Amendment and K.S.A. 22–2402(1), the distinction is not between public and private property but between public and private places. Clearly, the convenience store parking lot was a public place and all the activities observed by Officer Smith were in public view. The convenience store parking lot is within the parameters of a public place as contemplated in K.S.A. 22–2402.
Affirmed.