Opinion
109,684.
10-03-2014
STATE of Kansas, Appellee, v. Dustin BLACKSTON, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Amber R. Norris, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Amber R. Norris, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., PIERRON, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Dustin Blackston was convicted of burglary of a vehicle and theft following a bench trial based upon stipulated facts. Blackston appeals, claiming that he was arrested without probable cause and, therefore, any evidence found by police should have been suppressed. But the officer's actions here did not rise to the level of an arrest requiring probable cause and, even if they did, there was an intervening circumstance sufficient to purge any taint from the allegedly unlawful detention. For these reasons, we affirm.
Facts
On September 10, 2011, at 12:30 a.m., Officer Thomas Gresham of the Augusta Police Department met with Steven Snider based on a report that Snider had seen a white man wearing dark colors and some type of stocking cap get into a Ford truck that Snider knew belonged to Douglass Davidson. The truck was parked in an alley behind 509 School Street. Snider advised Gresham that he saw the man run south, then east, away from the truck with something in his hands; Snider did not see anyone else walking in the area. These events occurred about 3 minutes before Gresham arrived at the scene. Davidson reported that his truck stereo had been removed. He advised police he did not give anyone permission to enter the vehicle or take anything from it.
Sergeant Jeremy Johnston, a 16–year veteran of the Augusta Police Department, was on patrol in the early morning hours of September 10, 2011; his girlfriend, Amanda Foy, was in the patrol car with him on a ride-along. As they were driving to an area of town were various bars were located, he heard Officer Gresham's report that a vehicle had been burglarized and that a male suspect wearing dark clothing had been seen walking east away from the vehicle located at 509 School Street. Johnston was about 3 blocks north and east of the reported vehicle and started driving toward the scene. As they were driving, Foy reported seeing a man matching the description walking east about 2 city blocks away from the crime scene. Foy saw the man walking between a shed and some semi-trailers located at Schneider Grain. Johnston reported that it was unusual to see anyone in that area at that time of night as the business was closed.
Based upon Foy's observation, Sergeant Johnston used his spotlight and started to shine it underneath the semi-trailers to see if he could see anyone. As they drove around the semi-trailers, Johnston saw a man wearing dark clothing and wearing a multi-colored bandanna around his head walking east from the area of the trailers. Johnston drove up behind the man, stopped his car, loudly identified himself as a police officer, and asked the man to stop. The man stopped and lit a cigarette. Johnston approached the man, telling him they were looking for a burglary suspect. Johnston asked the man for his name, and the man identified himself as Dustin Blackston. Blackston smelled of alcohol; he was not uncooperative but was very brief in his responses. Johnston asked Blackston if he had any weapons and then patted Blackston down. Because Blackston closely matched the description of the suspect in Officer Gresham's report, it was near the crime scene, and it was unusual to see anyone in that location at that time of night, Johnston told Blackston he was not free to leave and handcuffed him. Johnston decided the detention was necessary until he could determine if Blackston was the man seen entering Davidson's truck. Johnston did not hold Blackston at gunpoint, but he did have his patrol car's overhead red and blue lights flashing. During the 15 minutes Johnston detained Blackston, he did not see any other person on foot in the area.
Within a few minutes of Officer Johnston advising his fellow officers that he had detained someone, Snider was transported to Schneider Grain where he identified Blackston as the person who he had seen inside Davidson's truck. After Blackston was identified, Officer Richard Ritter arrested him. Johnston searched Blackston's person thereafter. Blackston did not say much, other than asking why he was being arrested and said something to the effect that they had nothing on him.
When another officer arrived at the scene, Foy got out of the patrol car and showed Sergeant Johnston where she originally had seen Blackston. In walking through this area, they discovered a car stereo under one of the semi-trailers. Davidson later identified the stereo found under the semi-trailer at Schneider Grain as the one taken from his truck.
Blackston was charged with one count of burglary of a vehicle and one count of misdemeanor theft. Following the preliminary hearing, Blackston filed a motion to “quash arrest” and to suppress evidence; specifically, Blackston argued that he was arrested without probable cause and that all physical evidence and all observations of his behavior following his arrest should be suppressed.
During the hearing, evidence was presented in the form of testimony from Sergeant Johnston and Foy as set forth above. After hearing the testimony and the arguments of counsel, the district court denied the motion to suppress. The court noted that Blackston matched the description of the burglar and police found him near the crime scene. The court further noted that Blackston was found in a location that an experienced police officer found to be unusual for anyone that early in the morning and there was no other foot traffic in the area. Based on Johnston's testimony, the court also found Blackston was attempting to avoid detection. Based on this evidence, the court concluded the officers had reasonable suspicion to stop and investigate Blackston briefly and to perform a pat-down for weapons to guarantee officer safety. The court was equivocal as to whether the handcuffing of Blackston was premature but noted it was only for a short period until the eyewitness identified him and the stolen stereo was found.
In a separate analysis, the district court found that the facts did not call for the application of the exclusionary rule. The court reasoned that even if Blackston had been released as soon as Johnston identified him, the evidence still would have been discovered and Blackston arrested thereafter. The court noted that Blackston made no incriminating statements and nothing was found on his person that would be fruits of any improper detention. Following the hearing, the court filed a journal entry denying the motion based on the reasons set forth on the record.
In light of this ruling, Blackston waived his right to a jury trial and presented the court with a stipulation of facts agreed to by both the defense and the State. The district court accepted the stipulated facts, although the parties agreed the court could read the probable cause affidavit rather than the transcripts of the preliminary hearing and suppression hearing, and accepted the defense's objection to the evidence that was the subject of the motion to suppress. After reviewing the stipulation, the court found Blackston guilty beyond a reasonable doubt of vehicular burglary and theft.
On December 19, 2012, Blackston was sentenced to a controlling term of 11 months' incarceration with 12 months' postrelease supervision. Although Blackston's convictions fell within a presumptive probation grid block of the sentencing guidelines, the court imposed a prison sentence because the crimes were committed while Blackston was on probation or parole for another offense. No restitution was ordered.
Analysis
Blackston argues the district court erred in denying his motion to suppress. We review a district court's decision on a motion to suppress using a bifurcated standard. The appellate court reviews the district court's findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. The ultimate legal conclusion is reviewed using a de novo standard. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). The State bears the burden to prove the lawfulness of the search and seizure. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
Blackston argues that because Johnston lacked the probable cause necessary to arrest him at the time Johnston placed him in handcuffs, any evidence discovered thereafter should be suppressed as fruit of the poisonous tree. We are not persuaded by Blackston's argument because it presupposes that (1) a use of handcuffs necessarily converted the investigatory stop into an arrest and (2) any and all evidence discovered after the unlawful seizure is necessarily tainted.
Handcuffs
Blackston argues his arrest was effectuated when Sergeant Johnston placed him in handcuffs, at which time there was no probable cause for such an arrest. The State contends Blackston was not under arrest at the time he was handcuffed but that Johnston was in the midst of an investigatory detention and reasonably believed it was necessary to handcuff Blackston in order to protect his safety and the safety of other officers. The State argues Blackston was not arrested until Snider identified Blackston as the person who he had seen inside Davidson's truck, which gave rise to the probable cause necessary to arrest Blackston. Given these divergent positions, our first order of business is to determine whether Blackston was under arrest or merely detained as part of an ongoing investigation at the time he was handcuffed.
There are four categories of encounters between police and citizens: voluntary encounters, investigatory detentions, public safety stops, and arrests. There is no question Johnston's encounter with Blackston was not a voluntary encounter or a public safety stop. For an investigative detention, law enforcement officers must have reasonable suspicion to believe that an individual is committing, has committed, or is about to commit a crime. K.S.A. 22–2402(1). The standard for determining reasonable suspicion is set forth in State v. Slater, 267 Kan. 694, Syl. ¶¶ 1–2, 986 P.2d 1038 (1999) :
“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.”
“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 that must be taken into account when evaluating whether reasonable suspicion exists.”
For an arrest, a law enforcement officer must have a warrant for the individual's arrest, probable cause to believe there is a warrant for the individual's arrest, or probable cause to believe that the individual is committing or has committed a crime. See K.S .A. 22–2401. A person is considered to be under arrest when he or she is physically restrained or when he or she submits to the officer's custody for the purpose of answering for the commission of a crime. K.S.A. 22–2202(4) ; K.S.A. 22–2405(1). For purposes of our analysis, the critical part of this definition is that the physical restraint be effectuated in order to answer for the commission of a crime as opposed to any other reason, including but not limited to officer safety.
Police officers are not required to take unnecessary risks in the line of duty. They are permitted to use precautionary measures that are reasonably necessary to safeguard their personal safety. See State v. Nugent, 15 Kan.App.2d 554, 564, 811 P.2d 890 (citing K.S.A. 22–2402), rev. denied 249 Kan. 777 (1991). For example, the use of handcuffs and/or frisking a detainee for weapons does not automatically convert an investigatory detention into an arrest. State v. Hill, 281 Kan. 136, 142, 130 P.3d 1 (2006). “[T]he test for whether a seizure and an arrest has occurred is based on what a reasonable person would believe under the totality of the circumstances surrounding the incident.” 281 Kan. at 145 (citing State v. Morris, 276 Kan. 11, 18–19, 72 P.3d 570 [2003] ). Accordingly, the issue presented here is whether a reasonable person would believe Sergeant Johnston's actions in handcuffing and patting down Blackston were necessary to protect Johnston's safety and the safety of the other officers while waiting for the eyewitness to arrive on the scene.
The record reflects that Sergeant Johnston received a radio call from dispatch reporting that a white man in dark clothing and some kind of hat had just burglarized a vehicle and was last seen heading east on foot. As Johnston drove his patrol car toward the crime scene, his passenger observed a man matching the description walking from the direction of the burglary. The man was in or near a parking lot of a closed business, and there were no other pedestrians in sight. After circling around the trailers in the parking lot, Johnston saw Blackston, activated the lights on his vehicle, and commanded Blackston to stop. Johnston confirmed Blackston's identification, patted Blackston down for weapons, and questioned Blackston as to why he was there. Johnston testified Blackston smelled of alcohol and appeared to be trying to evade his marked police car. Johnston also testified about Blackston's conduct during a prior arrest where he was loud, boisterous, and vulgar. For these reasons, Johnston placed Blackston in handcuffs while waiting for his fellow officers to transport the eyewitness to the scene. Blackston was handcuffed for only a brief period before he was identified; Snider was brought to Blackston's location within 3 to 5 minutes after Johnston reported he had detained someone matching the description.
Considering all of these facts together, we find it was reasonable to believe that Blackston was placed in handcuffs because Blackston's physical safety, and the physical safety of the other officers at the scene, might be in jeopardy and not for purposes of answering for the commission of a crime. Because it was reasonably necessary for Johnston to handcuff and frisk Blackston for weapons, the physical restraint and search did not convert the investigatory detention into an arrest. We conclude Blackston was not arrested until after Snider identified him as the individual who broke into the car. See United States v. Shareef, 100 F.3d 1491, 1502 (10th Cir.1996) (use of firearms, handcuffs, or other forceful techniques does not necessarily transform Terry stop into full custodial arrest when circumstances reasonably warrant such measures); United States v. Blackman, 66 F.3d 1572, 1576 (11th Cir.1995) (fact that police handcuff person or draw their weapons does not, as a matter of course, transform investigatory stop into arrest), cert. denied 517 U.S. 1126 (1996) ; State v. Walker, 292 Kan. 1, 11–12, 251 P.3d 618 (2011) (pedestrian fitting description of burglary suspect located near scene within short period of time after burglary amounted to reasonable suspicion to support detention); Hill, 281 Kan. at 142 (use of handcuffs and/or frisking detainee for weapons does not automatically convert investigatory detention into arrest).
Attenuation
Even if Blackston had been arrested without probable cause, we would still affirm the district court's decision to deny Blackston's motion to suppress because Blackston's act of abandoning the stolen radio was an intervening circumstance under the attenuation doctrine that sufficiently purged the taint of the unlawful detention. As a general rule, evidence derived from an illegal search or seizure—the “fruit of the poisonous tree”—is subject to the exclusionary rule requiring suppression. One recognized exception to the exclusionary rule is the doctrine of attenuation. “ ‘Under the attenuation doctrine, courts have found that the poisonous taint of an unlawful search or seizure dissipates when the connection between the unlawful police conduct and the challenged evidence becomes attenuated.’ [Citation omitted.]” State v. Williams, 297 Kan. 370, 381, 300 P.3d 1072 (2013). When evidence “ ‘would not have come to light but for the illegal actions of the police,’ “ the relevant question is whether the allegedly tainted evidence was discovered through “ ‘exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ “ Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (quoting Wong Sun v. United States, 371 U.S. 471, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 [1963] ).
To determine whether evidence is sufficiently attenuated from an illegal arrest, the courts generally consider (1) the time that elapsed between the illegality and the acquisition of the evidence sought to be suppressed, (2) the presence of any intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. Williams, 297 Kan. at 381 (citing Brown, 422 U.S. at 603–04 ). No one factor is controlling, and other factors also may be relevant to the attenuation analysis. 297 Kan. at 381. Attenuation can occur not only when the causal connection is remote but also when suppression would not serve the interest protected by the constitutional guarantee violated. Hudson v. Michigan, 547 U.S. 586, 593, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).
Whether the taint of a prior illegality has been purged by sufficient attenuation between the unlawful conduct and the discovery of the challenged evidence is a question of fact that we review under a substantial competent evidence standard. See, e.g., State v. Smith, 286 Kan. 402, 420, 184 P.3d 890 (whether causal break dissipated taint of unlawful detention is question of fact), cert. denied 555 U.S. 1062 (2008) ; Williams, 297 Kan. at 382.
In considering the attenuation factors, the facts establish (1) the time that had elapsed between the illegality and the acquisition of the evidence sought to be suppressed was minimal; (2) Blackston's act of abandoning the stolen radio was an intervening circumstance that factually separates Johnston's discovery of the stolen radio from any alleged illegal detention; and (3) Johnston placed Blackston in handcuffs for safety reasons and only for a short period of time pending the eyewitness' arrival. In addition to these facts, the record reflects that nothing Blackston said led police to the physical evidence, and no evidence was found on his person or in his immediate vicinity.
Notably, our research reveals that several courts have found the voluntary abandonment of items before a detention to be sufficiently attenuated from any subsequent illegal detention, and thus admissible. See, e.g., United States v. Simpson, 439 F.3d 490, 494 (8th Cir.2006) (had authorities not arrested Simpson, they would have been free to retrace the search route and recover any and all evidence they encountered on the way; evidence recovered under these circumstances is ordinarily admissible); United States v. Boone, 62 F.3d 323, 326, (10th Cir.) (criminal defendant's voluntary abandonment of evidence can remove the taint of illegal stop or arrest; for this to occur, the abandonment must be truly voluntary and not merely the product of police misconduct), cert. denied 516 U.S. 1014 (1995) ; United States v. Jones, 261 F.Supp.2d 40, 45 (D.Mass.2003), aff'd 432 F.3d 34 (1st Cir.2005) (gun found where companion had paused while being pursued was admissible; any connection of gun with alleged illegal stop was attenuated by fact that gun was voluntarily abandoned).
Based on the discussion above, we conclude the district court did not err in finding the connection between the alleged unlawful police conduct and discovery of the truck stereo was too remote to have tainted the evidence and therefore was not subject to the exclusionary rule.
Affirmed.