Opinion
No. 107,339.
2013-01-18
STATE of Kansas, Appellee, v. Casey COLEMAN, Appellant.
Appeal from Saline District Court; Rene S. Young, Judge. Mitchell B. Christians, of Salina, for appellant. Jeffery Ebel, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Rene S. Young, Judge.
Mitchell B. Christians, of Salina, for appellant. Jeffery Ebel, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Casey Coleman appeals from the district court's decision to deny her motion to suppress and from her subsequent conviction of possession of marijuana and drug paraphernalia following a trial on stipulated facts. She alleges that her detention was unconstitutionally prolonged after the driver of the car in which she was a passenger was arrested, and therefore the physical evidence obtained from the car and her statements at the scene should be suppressed. She further alleges that her statements should be suppressed because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For the reasons stated below, we affirm.
Facts
On March 12, 2011, Salina Police Officer Ricardo Garcia was on patrol when he saw a car being driven by Kevin Coleman. Garcia recognized the driver, confirmed that Kevin had a warrant for his arrest, and stopped the car. Casey Coleman, Kevin's wife, was in the passenger seat of the car. Garcia asked Kevin for his driver's license and proof of insurance. Coleman began moving her hands towards the glove compartment but pulled them back “rather hastily.” Coleman then told Garcia they did not have proof of insurance for the car. Garcia requested a K–9 unit be sent to his location. After this point, the parties dispute almost all the facts.
The State's Version of the Facts
The State asserts that Garcia arrested Kevin on the outstanding warrant and told Coleman to wait in the car while he put Kevin in his patrol car. In the meantime, Officer Lemon arrived at the location to provide backup for Kevin's arrest. Garcia testified that Lemon was talking or hanging out with Coleman while he was dealing with Kevin. At some point after he finished putting Kevin in his patrol car, Garcia learned that Coleman's driver's license was suspended and she would be unable to drive the car away from the stop location. Garcia asked Coleman if they could arrange a ride for her, and she requested that they call her father.
Officer Gary Hanus, the K–9 officer, arrived 5 to 10 minutes after the stop began. After Hanus arrived, Coleman was told to get out of the car. Coleman stood with Garcia by his patrol car while Hanus conducted an exterior sniff of the Colemans' car with the dog. Garcia testified that he and Lemon were talking to dispatch about getting Coleman a ride home while Coleman stood by Garcia's patrol car. Although the officers did not affirmatively tell Coleman that she was free to go after being told to exit the car for purposes of the dog sniff, Garcia testified that she was free to leave at this point but stayed at the scene voluntarily to wait for a ride.
During the sniff, the K–9 alerted to the presence of narcotics in the car. After putting the K–9 back in his patrol car, Hanus walked back toward the stopped car and asked Coleman if there was anything illegal in the car. Coleman initially responded that there was nothing in the car and she last smoked marijuana over a year ago. When Hanus started walking over to the car to get ready to search it, however, Coleman told Garcia that there was a “one hitter” (a pipe used to ingest or consume marijuana) in the car.
After Coleman's statement, Garcia advised her of her Miranda rights, and she agreed to speak to the officers. Coleman stated the one hitter was in the glove compartment, it belonged to her, and she had used it the previous day to smoke marijuana. She also admitted she had placed the one hitter in the glove compartment as the car was pulled over. At this point, Coleman was arrested for possession of marijuana. Hanus then searched the car and found a wooden pipe in the glove compartment, which contained vegetation that was later tested and confirmed to be marijuana.
Coleman's Version of the Facts
Coleman testified to a different set of facts. Specifically, Coleman stated that after Kevin was arrested, Garcia returned to the car, told her she was being “retained,” and told her to get out of the car. She testified that Garcia asked her to step over by his patrol car, but she could not remember whose car she actually stood by at the scene. Coleman also testified that after Hanus put the dog back in his patrol car, he asked her if there was anything in the car. She initially said no, but after Hanus walked off and Garcia was walking toward Kevin, she told them there was a one hitter in the car. She was then arrested. Coleman testified that she did not make arrangements to call her father until after she was told she was going to be placed under arrest. She testified that up to that point, she could have arranged transportation for herself because she had Kevin's functioning cell phone in the car.
The State ultimately charged Coleman with possession of marijuana and possession of drug paraphernalia. Coleman filed a motion to suppress the physical evidence found in the car and any statements she made to the officers. Coleman claimed she was unlawfully detained and sought suppression of both the evidence seized and the statements she made. After an evidentiary hearing, the district court denied the motion. After a bench trial on stipulated facts, the district court held Coleman guilty of both counts and sentenced her to a 12–month term of probation, with a concurrent underlying term of 90 days' imprisonment.
Analysis
In her first claim, Coleman asserts the physical evidence from the car and her statements at the scene should have been suppressed because they were obtained while she was unlawfully detained in violation of the Fourth Amendment to the United States Constitution. In her second claim, relying on her Fifth Amendment right against self-incrimination, Coleman asserts that her one hitter statement should be suppressed because it was obtained during a custodial interrogation conducted without first administering a Miranda warning and that her statement claiming the one hitter as hers should be suppressed because there was no intervening circumstance to attenuate the taint of the unlawful pre- Miranda statement.
When reviewing a district court's decision on a motion to suppress evidence, we extend deference to the district court's findings of fact that are supported by substantial competent evidence. Although the State bears the initial burden of establishing to the district court that a search and/or seizure is lawful, an appellate court does not weigh evidence, pass on the credibility of witnesses, or resolve conflicting evidence. Once we determine that the district court's factual findings are adequately supported by the evidence, we use those facts to resolve the legal question regarding the lawfulness of the search and/or seizure. An appellate court reviews this ultimate legal question de novo. See State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008).
1. Coleman's Fourth Amendment Claim
Although conceding she was lawfully seized when Garcia stopped the car in which she was a passenger, Coleman contends that the officers unlawfully prolonged her detention after Kevin's arrest and, therefore, all evidence obtained as a result of this unlawful detention should not have been admitted at trial. The State disagrees, arguing that no violation of the Fourth Amendment occurred because Coleman's lawful detention transformed into a consensual encounter once Kevin was arrested.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights guarantee the right of people to be secure against unreasonable searches and seizures. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). A passenger is seized under the Fourth Amendment during a traffic stop of the vehicle which he or she occupies. Brendlin v. California, 551 U.S. 249, 257, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); State v. Golston, 41 Kan.App.2d 444, 450, 203 P.3d 10 (2009), rev. denied 289 Kan. 1282 (2010). With regard to the duration of a lawful seizure, the driver and all passengers are seized from the time the officers initiate the stop until the police “have no further need to control the scene, and inform the driver and passengers they are free to leave.” Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). Continuation of the encounter beyond the point in time when the purpose of the traffic stop is fulfilled is justified only when the continuation is consensual or the officer gains a reasonable and articulable suspicion of illegal activity. Thompson, 284 Kan. 763, Syl. ¶ 8.
Courts use a “totality of the circumstances” test to determine whether an encounter between an officer and a citizen is a seizure or a consensual encounter. State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678 (2011). An interaction is consensual if, under the totality of the circumstances, the officer's conduct would convey to a reasonable person that he or she is free to refuse the officer's requests or otherwise end the encounter. 291 Kan. at 682. Only if the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may the court conclude a seizure has occurred. 291 Kan. at 683. A consensual encounter is not considered a seizure under the Fourth Amendment. State v. Hill, 281 Kan. 136, 141, 130 P.3d 1 (2006).
Our Supreme Court has recognized several objective factors to use in determining whether an encounter is a seizure or consensual. See Thomas, 291 Kan. at 683. Because the determination is fact-specific, there is no exclusive or definitive list of factors to be considered. Thompson, 284 Kan. at 811. Factors tending to establish a seizure include the threatening presence of several officers, the display of a weapon by an officer, physical touching of the person, the use of aggressive language or tone of voice indicating compliance is compulsory, the prolonged retention of personal effects, a request to accompany the officer somewhere, interaction in a nonpublic place, absence of other members of the public, and the display of emergency lights. 284 Kan. at 811. Factors tending to establish a consensual encounter include: knowledge of the right to refuse, a clear communication that the driver is free to terminate the encounter or refuse to answer questions, return of the driver's license and other documents, and a physical disengagement before further questioning. 284 Kan. at 811.
In this case, the parties agree that Coleman was lawfully seized when Garcia stopped the car in which she was a passenger. The seizure should have been complete once Kevin was arrested and placed in the patrol car because at that point the purpose of the stop—effectuating Kevin's arrest on an outstanding warrant—was achieved. Accordingly, Coleman's detention was unconstitutionally prolonged only if the officers' conduct after Kevin's arrest would convey to a reasonable person that she was not free to refuse the officers' requests or otherwise end the encounter.
To that end, the district court stated it found Garcia's testimony to be credible. Specifically, the court found that (1) Garcia stopped Kevin after recognizing him and confirming he had outstanding warrants; (2) when Garcia returned to the car to arrest Kevin, Coleman informed Garcia she did not have a valid license and asked for arrangements to be made for a ride; (3) Garcia and Lemon then attempted to make arrangements for Coleman to be picked up and to have someone to drive the car; (4) Hanus arrived after Kevin was arrested, and the dog alerted during a sniff of the exterior of the car; (5) Garcia then asked Coleman if there was anything illegal in the car, and she said there was a one hitter; (6) a one hitter subsequently was found in the glove compartment; (7) Coleman was Mirandized; and (8) Coleman admitted the one hitter was hers. Based on these facts, the court concluded, as a matter of law, that the car was lawfully stopped, the officers had probable cause to search the car after the dog alerted, and the drug sniff and subsequent search of the car were conducted while the officers were waiting for someone to pick up the car and give Coleman a ride; thus, the encounter between the officers and Coleman was consensual at that time.
We find the factual determinations made by the district court are supported by substantial competent evidence. Garcia testified that he stopped Kevin for an outstanding arrest warrant. He also testified that before Kevin's arrest, Coleman informed him she did not have a driver's license. Garcia said that after Kevin's arrest he asked Coleman if they could arrange a ride for her and she asked the officers to call her father. Thus, although the timing in Garcia's testimony is somewhat different than the district court's finding, the evidence is substantial and competent that at some point before Coleman left the car she informed Garcia she did not have a license. In addition, both Garcia and Hanus testified that one of the officers had dispatch call someone to come pick up Coleman and the car.
Garcia and Hanus further testified that Hanus arrived after Kevin's arrest and conducted the drug sniff, during which the dog alerted to the presence of drugs. Garcia also testified that Coleman made the one hitter statement after Hanus asked her if there was anything illegal in the car, although Hanus testified that he only overheard Coleman make the statement to Garcia. Regardless, Coleman herself testified that Hanus asked her if there was anything illegal in the car and she told the officers there was a one hitter in the glove compartment. Therefore, even though the district court found it was Garcia who asked Coleman this question, there is substantial competent evidence to support the finding that one of the officers asked the question and Coleman responded that there was a one hitter in the car. The stipulated facts and Garcia's and Hanus' testimony indicate that the officers searched the car and found the one hitter, which was later tested and confirmed to contain marijuana. Finally, Garcia and Hanus both testified that Coleman was given Miranda warnings, after which Coleman admitted the one hitter was hers and she had hidden it in the glove compartment when the car was pulled over.
Having found substantial competent evidence to support the district court's factual findings, we apply the Thompson factors to determine whether those facts support the district court's legal conclusion that the encounter between Coleman and the officers was consensual at the time of her pre- Miranda statement and the search of the car. Facts that support a legal determination that the encounter was consensual include the lack of any evidence to establish that the officers displayed their weapons for Coleman to see, threatened or physically touched her, used aggressive language or a tone of voice indicating compliance was compulsory, retained her personal effects, requested she accompany the officer somewhere, interacted with her in a nonpublic place, or displayed emergency lights. See Thompson, 284 Kan. at 811. In further support of a consensual encounter is the district court's factual finding that Coleman asked for arrangements to be made for a ride and that the search of the car and the subsequent question posed to Coleman was done while the officers were waiting for someone to pick her up. Although there was evidence presented at the hearing to establish that more than one officer was on the scene and that none of the officers affirmatively informed Coleman she had the right to refuse to speak to the officers or was free to leave, substantial competent evidence supports the district court's legal conclusion that the encounter was consensual. As such, the evidence seized and her pre- Miranda statements are admissible, and the district court did not err in denying her motion to suppress this statement.
2. Coleman's Fifth Amendment Claim
Coleman contends her first statement regarding the one hitter was made before receiving Miranda warnings and must be suppressed because it was made in violation of her Fifth Amendment rights. She also contends the statements she made after receiving Miranda warnings were inadmissible because there was no intervening circumstance to attenuate the taint of the unlawful pre- Miranda statement.
The Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights guarantee the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent. State v. Jones, 283 Kan. 186, 192, 194, 151 P.3d 22 (2007), disapproved in part on other grounds by State v. Nelson, 291 Kan. 475, 243 P.3d 343 (2010). The State may not use statements stemming from a custodial interrogation of a defendant unless procedural safeguards securing the defendant's privilege against self-incrimination were used. 283 Kan. at 192 (citing Miranda, 384 U.S. at 479). These procedural safeguards include Miranda warnings, which are required only where there has been such a restriction on a person's freedom as to render him or her “in custody.” 283 Kan. at 193. The objective inquiry for whether an interrogation is custodial is twofold: (1) what were the circumstances surrounding the interrogation and (2) under the totality of the circumstances, would a reasonable person have perceived he or she was not at liberty to terminate the interrogation and leave? 283 Kan. at 193–95.
In this case, Coleman appears to assume that being seized under the Fourth Amendment is the equivalent of being in custody for Fifth Amendment Miranda purposes, because she failed to brief the issue of custody and instead adopted the same prolonged detention arguments made above. However, this court has said:
“Whether a reasonable person would have felt free to leave is the test to determine when a person has been seized or detained, [Citation omitted.] This is not the test to determine when a person is in custody for Miranda purposes. A person who is lawfully seized or detained by a law enforcement officer is not free to leave or terminate the encounter. Clearly this fact alone does not make the encounter custodial for purposes of whether Miranda warnings are required before questioning. Otherwise, Miranda warnings would need to be the first words spoken by a law enforcement officer during any Terry stop.” State v. Vanek, 39 Kan.App.2d 529, 538, 180 P.3d 1087,rev. denied 286 Kan. 1185 (2008).
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Kansas courts have long recognized the distinction between custodial and investigatory interrogation. Jones, 283 Kan. at 194. Custodial interrogation is the questioning (or its functional equivalent) of a person held by law enforcement officers, initiated and conducted while the person is held in legal custody or is otherwise deprived of his or her freedom of action in any significant way. Investigatory interrogation is the questioning of a person by officers in a routine manner before the investigation has reached the accusatory stage and where the person is not in legal custody or deprived of his or her freedom of action in any significant way. 283 Kan. at 194;Vanek, 39 Kan.App.2d at 533. An investigatory interrogation does not require Miranda warnings, even if the individual is not free to leave during the lawful detention. 39 Kan.App.2d at 533. Thus, Miranda warnings are not required before officers can ask a person questions during a routine traffic stop, unless the person has been subjected to restraints comparable to those associated with a formal arrest. 39 Kan.App.2d at 535. Depending on the totality of the circumstances, some unusual situations can transform a routine traffic stop from an investigatory detention to something comparable to a formal arrest, including extending the duration of the stop for a protracted period of time. 39 Kan.App.2d at 537–38.
At this point, we would normally consider whether the district court's factual findings are supported by substantial competent evidence and, if so, whether those facts support the district court's ultimate legal conclusion. However, the district court did not make any factual findings or legal conclusions regarding whether Coleman was in custody. Nevertheless, we find the record and the court's factual findings as detailed above support a legal conclusion that Coleman was not in custody.
Coleman's case is similar to State v. Hayes, No. 90,568, 2003 WL 22902797 (Kan.App.2003) (unpublished opinion). In Hayes, the defendant was a passenger in a car that was stopped, and the driver consented to a search of the car's trunk. While an officer searched the trunk, a K–9 officer did two drug dog sniffs of the exterior of the car, and the dog reacted to the scent of drugs. During the second sniff, an officer asked the defendant if there was anything illegal in the car, and she responded that there was a roach clip in the glove box. The officers then discovered marijuana and drug paraphernalia in an internal search of the car. After being Mirandized, the defendant confessed that she and the driver had just purchased marijuana in order to sell it. This court found the defendant had consented to the prolonged detention, the search was valid, and the defendant had volunteered several statements after she was read her Miranda rights, so the statements did not fall under the fruit of the poisonous tree exception and were admissible. 2003 WL 22902797, at *6. Additionally, the court found the defendant made the first statement while not under arrest or any significant restraint because the investigation was still in the preliminary stage of the drug sniff and the defendant had not yet been accused of anything. Absent proof of custodial interrogation, the court held Miranda warnings were not required before the initial general questioning. 2003 WL 22902797, at *7.
As in Hayes, Coleman was not in legal custody or under any significant restraint when Officer Hanus asked her whether there was anything illegal in the car and she made her first statement regarding the one hitter. While the district court did not address the issue specifically, its factual findings—as well as the facts provided in the record—are sufficient to support the conclusion that Coleman made this pre- Miranda statement voluntarily. Garcia testified that Hanus arrived at the scene within 5 to 10 minutes after the Colemans' car was stopped, at which point Garcia asked Coleman to exit her car. The district court found, and there is substantial competent evidence in the record to support the conclusion, that Coleman remained at the scene voluntarily to wait for a ride after she exited the car. She was not in handcuffs or restrained in any way as she stood with Officer Garcia near his patrol car. Although the dog alerted to the smell of drugs while she was standing by the patrol car, the investigation was still in the preliminary, nonaccusatory stage when Coleman made her first statement because the officers could have suspected that any drugs eventually found in the car could have belonged to either Coleman or Kevin. Although Coleman made the one hitter statement in response to an officer's question, she testified that at first she responded “no” when asked if there was anything in the car but then told the officers about the one hitter only after they had walked away from her. Once the officers had walked away, a reasonable person would have assumed he or she had no obligation to answer the question.
Under the totality of the circumstances, a reasonable person would not have believed he or she was in custody and would have felt free to end the investigatory interrogation. Because Coleman was not in custody, the officers were not required to give her Miranda warnings before asking her if there was anything illegal in the car.
Because there is substantial competent evidence to support a conclusion that Coleman's first statement was not obtained in violation of Miranda, the court need not reach the issue of whether her subsequent post- Miranda warning statements should be suppressed. There was no illegal arrest or detention, so there is no taint for the court to assess. See Hill, 281 Kan. at 152. In addition, the parties do not argue that Coleman did not make a rational and intelligent waiver of her right against self-incrimination after receiving the Miranda warnings. Therefore, these post- Miranda warning statements are admissible, and the district court did not err in denying the motion to suppress.
Affirmed.