Opinion
No. 112,212.
12-11-2015
STATE of Kansas, Appellee, v. John W. BANNON, Appellant.
Richard Ney, of Ney & Adams, and Ian M. Clark, of Wichita, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Richard Ney, of Ney & Adams, and Ian M. Clark, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM.
John W. Bannon appeals his jury trial conviction for criminal carry of a weapon. The record reflects Bannon was searched without a warrant in violation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and the district court erred in not granting his motion to suppress the evidence found as a result of the improper pat-down search. With this resolution, we decline to address Bannon's other issue on appeal that lawful possession of a firearm in the front lobby to his apartment building qualified as part of his abode or curtilage. Bannon's conviction is reversed, and the matter is remanded for the district court to grant Bannon's motion to suppress.
Facts
In March 2013, concerned parents of a Wichita State University (WSU) student went to the WSU Police Department to report an incident their son related to them that occurred 2 weeks prior at his campus residence, Wheatshocker Apartments (Wheatshocker).
Both Sergeant Bryson Potter and Officer Phillip Shelite of the WSU Police Department spoke with the parents who informed them their son, Johnathon Wasserstein, had seen a fellow resident in Wheatshocker carrying a gun. Sergeant Potter had the parents retrieve their son and verified Wasserstein was a WSU student living in Wheatshocker.
Wasserstein told the officers “[a] friend or an acquaintance that told him that he works for Homeland Security; he always has guns on him; he interrogates people. He said that he had his conceal and carry, and he had guns in his apartment, as well.” The individual's first name was “John” and he lived in one of two possible Wheatshocker units—# 414 or # 514. Wasserstein provided a physical description of John for the officers and told the officers John took Xanax and Morphine. Wasserstein was explicit that he regularly hung out with John, and John always carried a gun. Officer Shelite confirmed a John Bannon lived in apartment 414 at Wheatshocker.
As Sergeant Potter and Officer Shelite arrived at Wheatshocker, they were advised by dispatch that a student working at the lobby desk confirmed Bannon was currently sitting in the Wheatshocker front lobby. “The front lobby is right inside [Wheatshocker]. You walk into the apartments and you have a—a desk where a worker always sits, and there's a front lobby. It's a common area with seating and couches and everybody uses it; students hang out there.” There were a number of students in the lobby.
The officers saw a man matching Bannon's physical description sitting in a chair reading in the lobby. The officers approached Bannon, and Sergeant Potter asked the individual if his name was John, and he said, “Yes.” Sergeant Potter then asked Bannon if he had any weapons on him, and he said, “No.” Officer Shelite grasped Bannon by the arm and had him stand up for a quick pat-down. Officer Shelite located a black handgun, loaded with a 15–round clip and a round in the chamber, on Bannon's right hip, inside his waistband, with a shirt over it to conceal it. The officers secured the loaded weapon and placed Bannon in handcuffs. WSU's policy prohibits weapons on campus, and this policy is integrated into Wheatshocker housing contracts.
The State charged Bannon with one count of criminal carrying of a weapon in violation of K.S.A.2012 Supp. 21–6302(a)(4), a class A nonperson misdemeanor, for unlawfully and knowingly carrying a firearm concealed on his person when not on his land, abode, or fixed place of business.
Prior to trial, Bannon moved to dismiss the charge against him, asserting that he could not be convicted because he was carrying a concealed weapon on his land or in his abode. Following an evidentiary hearing, the State filed a memorandum of law, including the student code of conduct, arguing that the defenses of carrying on one's land or abode were not available to a defendant who waived his right to carry as part of his rental contract for residency at Wheatshocker. Further, the prohibition against firearms on WSU's campus and in Wheatshocker were reasonable regulations exercised by WSU for the protection and safety of its students. Bannon filed a response arguing WSU's gun policy was irrelevant to the Kansas criminal statute regarding carrying a weapon on one's land or in one's abode.
After consideration of the State's and Bannon's arguments, the district court found the lobby of Wheatshocker was not a part of Bannon's land or abode and he could not claim any statutory exemptions to prosecution for criminal carrying of a weapon. The district court denied Bannon's motion to dismiss.
After his motion to dismiss was denied, Bannon filed a motion to suppress the concealed handgun seized from his waist, arguing it was taken during a warrantless search of his person within the curtilage of his apartment or, in the alternative, that the officers lacked reasonable suspicion or probable cause to believe he was committing a crime when they seized and searched him. The State responded, arguing the lobby of Wheatshocker was not curtilage and the seizure of Bannon was a valid investigatory stop.
Following an evidentiary hearing, the district court found the lobby of Wheatshocker was public and not within the curtilage of Bannon's room, and the officers had reasonable suspicion of a firearm-related crime or that the impersonation of a law enforcement officer had been or was being committed when they contacted Bannon. Therefore, the pat-down and discovery of Bannon's concealed firearm was constitutionally permissible.
Bannon appeals his jury trial conviction of criminal carrying a weapon.
Analysis
Did the district court err when it denied Bannon's motion to suppress?
On appeal, Bannon presents two issues. First, he claims there was insufficient evidence to convict him of the crime because he was lawfully possessing a concealed firearm in his abode or within the curtilage. Second, he claims his conviction should be reversed because he was subject to an illegal pat-down search and seizure of his person. The record reflects no testimony from the officers that they had any concern for their safety or the safety of others. We find the second prong of the Terry stop was not met, and the evidence must be suppressed.
When reviewing a district court's decision on a motion to suppress, the appellate court applies a bifurcated standard. The appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion is reviewed using a de novo standard. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). When the material facts relating to a search are not in dispute, the appellate court will exercise plenary review of the district court's ruling on a motion to suppress. State v. James, 301 Kan. 898, 908, 349 P.3d 457 (2015). The State bears the burden of proof for a suppression motion. It must prove to the trial court the lawfulness of the search and seizure. Reiss, 299 Kan. at 296.
When the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. State v.. McCaslin, 291 Kan. 697, 726, 245 P.3d 1030 (2011).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights assures each person's right to be secure in his or her person and property against unreasonable searches and seizures. Any warrantless search is per se unreasonable unless it falls within one of the recognized exceptions to the search warrant requirement in Kansas. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S.Ct. 2114 (2011).
“A law enforcement officer may stop any person in a public place based upon specific and articulable facts raising a reasonable suspicion that such person has committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). K.S.A 22–2402(1), the Kansas stop and frisk statute, is a codification of the Fourth Amendment search and seizure principles expressed in Terry.” State v. Slater, 267 Kan. 694, 696–97, 986 P.2d 1038 (1999).
See also State v. Walker, 292 Kan. 1, 5–6, 251 P.3d 618 (2011) (investigatory stop of pedestrian).
In order for the officers' stop of Bannon to be constitutional, it had to have been made in a public location and the officers had to have reasonable suspicion he was committing or about to commit a crime.
The warrantless search of Bannon did not satisfy the second prong of a Terry stop.
As we approach this question, we assume for purposes of a search and seizure analysis, without deciding the issue, the lobby of Wheatshocker was a public place and the officers had a reasonable suspicion Bannon was violating the law to satisfy the first prong of a Terry stop. Next, we look at the second prong and see the officers failed to identify they proceeded with the pat-down search and seizure of Bannon because they were concerned for their safety or the safety of others.
“K.S.A 22–2402(1), the Kansas stop and frisk statute, is a codification of the Fourth Amendment search and seizure principles expressed in Terry.” Slater, 267 Kan. at 697.
“This statute is a codification of the Fourth Amendment search and seizure principles expressed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the United States Supreme Court determined that a law enforcement officer, without making an arrest, is authorized to stop an individual whom the officer reasonably suspects is involved in criminal activity. Furthermore, when an officer is justified in believing that the individual is armed and presently dangerous to the officer or to others, the officer may pat down the individual's outer clothing to determine whether the person is in fact carrying a weapon. 392 U.S. at 22–24.” State v. White, 44 Kan.App.2d 960, 964, 241 P.3d 591 (2010).
The United States Supreme Court defined the standard for reasonable suspicion in Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990):
“Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.... Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the ‘totality of the circumstances—the whole picture,’ [citation omitted], that must be taken into account when evaluating whether there is reasonable suspicion.”
The Kansas Supreme Court adopted the Alabama standard for reasonable suspicion in State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998).
At the suppression hearing, the officers never testified they were concerned for their safety or the safety of others before proceeding with the warrantless pat-down search of Bannon. Clearly, the initial contact was reasonable as they approached Bannon. However, once this plays out, the record reflects Bannon was sitting in the lobby reading a book. The State clearly failed to present evidence of the second prong of a Terry stop—that the officers were reasonably concerned for their safety or for the safety of others to justify the move to a warrantless pat-down search. The right to proceed with a warrantless search under a Terry stop is a two-step dance. The evidence is lacking on the second step—concern for officer or public safety—and the motion to suppress should have been granted.
With this conclusion, we find it unnecessary to reach the other issues raised by Bannon. We reverse and remand for the district court to grant Bannon's motion to suppress the results of the warrantless pat-down search of his person.
Reversed and remanded with directions.