Opinion
112,043.
04-24-2015
STATE of Kansas, Appellant, v. Michael W. VAN BUREN, Appellee.
Stephen P. Jones, deputy county attorney, and Derek Schmidt, attorney general, for appellant. David K. Markham, of Tucker and Markham, Attorneys at Law, L.L.C., of Parsons, for appellee.
Stephen P. Jones, deputy county attorney, and Derek Schmidt, attorney general, for appellant.
David K. Markham, of Tucker and Markham, Attorneys at Law, L.L.C., of Parsons, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The State of Kansas appeals the district court's order granting Michael W. Van Buren's motion to suppress. The State argues the court incorrectly granted the motion by concluding law enforcement did not have reasonable suspicion to initiate a stop of Van Buren's car.
Facts
In the early morning hours of March 25, 2014, Labette County Sheriff's Deputy Troy Mackie was on routine patrol when he observed a dark, four-door car being driven through Mound Valley, Kansas. Mackie noticed that the car had two tag lights hanging down over the rear license plate, which were very bright. About 20 minutes later, Mackie was heading towards U.S. Highway 160, about 1/2 mile from the Mound Valley city limits, when he saw a car parked on the side of the road with its engine running and headlights off. As Mackie approached, the driver turned on the car's headlights and quickly pulled out onto the roadway. As the car passed, Mackie saw two tag lights hanging down over the license plate and recognized the car as the same one he had seen driving in Mound Valley 20 minutes earlier. Mackie was aware of several recent burglaries in the Mound Valley area. In many cases, a person would be dropped off to commit the crime while a car waited nearby. Based on this knowledge, Mackie initiated an investigatory stop. Mackie later testified that he stopped the car because he had “seen the vehicle come through Mound Valley; then 20 minutes later ... observed it sitting blacked out on the roadway.” Mackie made contact with Van Buren, the driver of the car, and learned that there was an outstanding warrant for his arrest. After placing Van Buren under arrest, Mackie performed a pat-down search and discovered marijuana and methamphetamine on Van Buren's person. Mackie then transported Van Buren to the Labette County Jail, where he located additional marijuana in Van Buren's possession.
Van Buren was subsequently charged with unlawful possession of a controlled substance, trafficking contraband in a correctional facility, and a drug tax stamp violation. Following a preliminary hearing, the district court found probable cause existed to bind Van Buren over for trial on all three charges.
Prior to trial, Van Buren filed a motion to suppress all evidence seized following the stop of his car, alleging that Mackie lacked the requisite reasonable suspicion to initiate the stop. In response, the State argued that the totality of the circumstances combined to form reasonable suspicion necessary to justify the stop. Based on the evidence presented at the preliminary hearing, the district court granted Van Buren's motion, ruling that Mackie lacked a reasonable and articulable suspicion of criminal activity because his decision to stop Van Buren was based on “pure speculation,” or a mere hunch. The State filed a timely interlocutory appeal.
Analysis
The State argues the district court erred in granting Van Buren's motion to suppress. The State claims, as it did below, that the totality of the circumstances provided Mackie with a reasonable and articulable suspicion sufficient to justify the stop of Van Buren's car.
In reviewing the granting or denial of a motion to suppress evidence, appellate courts use 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. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). The facts in this case are uncontested. When the material facts to 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. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable governmental searches and seizures. A traffic stop is considered a seizure of the driver. State v. Marx, 289 Kan. 657, 661, 215 P.3d 601 (2009). To lawfully stop a moving vehicle, an officer must have reasonable suspicion, supported by specific, articulable facts, that a crime has been, is being, or is about to be committed. See K.S.A. 22–2402(1) (codifies Terry v. Ohio, 392 U.S. 1, 20–21, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968] ); Marx, 289 Kan. at 661. When confronted with a challenge involving suppression of evidence, the State has the burden of demonstrating the challenged search or seizure was lawful. State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011).
Reasonable suspicion is described as
“ ‘a particularized and objective basis for suspecting the person stopped is involved in criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of information possessed by the detaining authority and the information's degree of reliability. Quantity and quality are considered in the totality of the circumstances—the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.’ “ State v. Pollman, 286 Kan. 881, 890, 190 P.3d 234 (2008) (quoting State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 [1999] ).
In Toothman, our Supreme Court explained the role of the appellate court in reviewing whether a stop is justified by reasonable suspicion:
“When evaluating reasonable suspicion, we judge an officer's conduct in light of common sense and ordinary human experience. Our task is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious, but to determine whether the totality of the circumstances justify the detention. We make our determination with deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances, 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.” 267 Kan. 412, Syl. ¶ 4.
The State argues that the totality of the following circumstances here, viewed in light of Mackie's 20 years of law enforcement experience, provided sufficient reasonable suspicion to justify the stop of Van Buren's car:
• Mackie was aware of several, recent, late-night burglaries in the Mound Valley area.
• Mackie was aware that in many of these burglaries, the burglar was dropped off to commit the crime while a car waited nearby.
• Mackie saw a car in Mound Valley at 2 a.m. and saw the same car 20 minutes later outside Mound Valley, parked on the side of the road with its engine running and its lights off.
• As Mackie's patrol car approached, the car quickly turned on its lights and pulled onto the roadway.
Relying on State v. Kirby, 12 Kan.App.2d 346, 744 P.2d 146 (1987), aff'd 242 Kan. 803, 751 P.2d 1041 (1988), disapproved on other grounds by State v. Jefferson, 297 Kan. 1151, 1165, 310 P .3d 331 (2013), the State argues that these factors, taken together, provide sufficient reasonable suspicion. But Kirby is easily distinguishable from the present case. In Kirby, law enforcement was aware of reports of deer poaching in the area, and the defendant was stopped on a rural road after his truck was observed parked with its headlights off and dome light on. The defendant also had a tarp covering something in the bed of the truck, an additional objective fact which tended to implicate the defendant in poaching, a type of fact not found in the present case. In addition, the absence of a license tag provided law enforcement grounds to check the validity of the defendant's temporary sticker. See 12 Kan.App.2d at 348–49, 353–54.
Here, the only facts present are (1) reports of previous crimes in the area, (2) the time of night, and (3) the location and actions of the car. First, being in a high-crime area does not by itself create reasonable suspicion. State v. Anguiano, 37 Kan.App.2d 202, 207, 151 P.3d 857 (2007) (citing Illinois v. Wardlow, 528 U .S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 [2000] ). Second, the time of day—or night—should not automatically lend itself to a finding of reasonable suspicion absent additional, particularized facts. City of Marysville v. Lake, No. 100,897, 2009 WL 2595948, at *1, 5 (Kan.App.2009) (unpublished opinion) (truck near chain-link fence protecting outdoor merchandise located in an Orschlen's parking lot at 2:15 a.m. and officer “wanted to see what the truck was doing in that location and at that time” did not meet reasonable articulable suspicion standard), rev. denied 290 Kan. 1092 (2010); State v. Mollett, No. 97,999, 2008 WL 3852167, at *10 (Kan.App.2008) (unpublished opinion) (defendant's presence at 1:22 a.m. in parked car in alley behind two businesses with multiple recent crimes did not create reasonable suspicion), rev. denied 287 Kan. 768 (2009). Third and finally, the location and actions of Van Buren's car do not supply reasonable suspicion. Under certain circumstances furtive actions of a suspect may justify a Terry stop. See State v. Holthaus, 222 Kan. 361, 361–62, 364, 564 P.2d 542 (1977) (defendant detained after he twice drove by a business where police were investigating an early morning burglary and, after seeing patrol car at nearby intersection, acted nervous, parked truck, and scooted down in seat). Absent other suspicious circumstances, however, it cannot be said that Van Buren's actions of turning on his headlights and quickly entering the roadway at or about the time that Mackie approached constituted furtive movements.
Nothing in Mackie's testimony supports a particularized or objective basis that Van Buren was committing, had committed, or was about to commit a crime. Mackie did not see Van Buren commit any offense. Van Buren's car was lawfully parked on the side of the road, and despite the car's quick entry onto the roadway, Mackie did not observe any traffic infractions. And as noted by the district court, Mackie had no specific information about a burglary or theft on the evening he stopped Van Buren and had no reason to suspect Van Buren of any such crime. The State suggests that the district court's reliance on these facts somehow imposed on Mackie a requirement of probable cause because reasonable suspicion does not require him to have information about a specific burglary or theft. Rather than applying a heightened standard, however, the district court was merely discussing the absence of additional articulable factors that could have supplied reasonable suspicion. Although Mackie was suspicious, he had no objective facts upon which to form a belief that Van Buren was involved in criminal activity. See Martinez, 296 Kan. at 488 (“[A] hunch has never been the benchmark of a proper police seizure.”).
Under the totality of these circumstances, Mackie did not have a reasonable articulable suspicion to initiate the stop of Van Buren's car. Mackie's seizure of Van Buren was therefore not lawful and, as a result, the district court did not err in granting Van Buren's motion to suppress.
Affirmed.