Opinion
111,018.
10-24-2014
STATE of Kansas, Appellee, v. Jolene KORN, Appellant.
Michael J. Nichols, of Michael J. Nichols, P.A., of Kansas City, for appellant. Brett H. Richman, assistant district attorney, Jerome A, Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Michael J. Nichols, of Michael J. Nichols, P.A., of Kansas City, for appellant.
Brett H. Richman, assistant district attorney, Jerome A, Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Officers from the Kansas City Police Department entered a bar to investigate possible drug transactions. One officer approached Jolene Korn's table and asked her and her companions for identification. When Korn said she did not have identification with her, the officer asked to search her wristlet. She consented, and he found cocaine inside. Korn moved to suppress the cocaine as fruit of an illegal seizure and illegal search, but the district court denied her motion. Because there was substantial competent evidence to support the district court's finding that the encounter with Korn was voluntary, that she consented to the search, and that she was not coerced by the officer's conduct, we affirm.
Factual and Procedural History
In September 2012, the State charged Korn with a single count of possession of cocaine. Prior to trial, Korn filed a motion to suppress the cocaine, which had been discovered during a search of her wristlet. In the motion, Korn alleged that the search—which stemmed from a police officer asking her for identification—was illegal. Korn contended that the officer had seized her without reasonable suspicion and coerced her into agreeing to a search. The State opposed the motion, arguing that the encounter between Korn and the officer was voluntary. The facts, as developed in the suppression hearing, were as follows:
David Hopkins of the Kansas City Police Department, along with other officers, conducted a “bar check” investigation at a bar in Wyandotte County at approximately 12:10 a.m. The investigation began with a single plainclothes officer sitting in the bar and watching for violations for an hour before other officers entered. During that hour, the plainclothes officer noticed behaviors consistent with drug transactions. Upon the arrival of Hopkins and a few other officers, they began contacting bar patrons, starting first with the people near the bar's west-side door and moving toward a table on the south side of the bar. Conducting bar checks such as the one here was a routine activity for Hopkins.
Hopkins contacted “[f]our to five” bar patrons. These were individuals that had been observed constantly going in and out of the west door, visiting their vehicles, and returning to the bar. Hopkins asked them for identification and ran their names for outstanding warrants. None of those individuals were taken into custody.
At a point in time when Hopkins and Sergeant Turner were the only officers inside the bar, Turner alerted Hopkins to a table on the south side of the bar. The table specifically attracted the officers' attention because one of the patrons there, a young woman, appeared to be under the legal drinking age. Hopkins approached the table—consisting of two men and two women. He spoke to Korn first, whom he did not suspect of being underage or doing anything illegal. Korn informed Hopkins that she did not have identification. However, a wristlet sat on the table directly in front of her. Hopkins asked Korn whether the wristlet belonged to her; when Korn told him it did, he asked whether he could check it for identification. Korn consented to the search, and immediately upon opening the wristlet, Hopkins uncovered a small bag of powdered cocaine inside. Nothing the plainclothes officer witnessed suggested that Korn was part of the possible drug transactions occurring in the bar. Korn's behavior was not out of the ordinary, and the only suspicious behavior was that she was drinking at a bar without identification, even though she had a wristlet in front of her.
From Korn's perspective, she observed officers “keeping people from coming in and out” of one particular door to the bar, although there was another door, closer to Korn, that was unguarded. She observed the officers checking ID's, but she did not recall seeing anyone else being taken into custody before Hopkins approached her table. When Hopkins approached her, she and her companions were “kind of nervous.” When asked about her nervousness when Hopkins approached, Korn explained, “[I]t was a party for my friend and it was kind of like a Spanish bar so I was a little kind of nervous being in there anyways but, you know.” She also explained that the officers “had made such a commotion when they first came in. I really wasn't worried about it ‘cause I mean I didn't think he would have any reason to say anything to me so....” She admitted, however, that she agreed to the search of her wristlet.
At the close of the testimony, Korn argued that her consent was invalid because her interaction with Hopkins during the bar check was a seizure rather than a voluntary encounter. Korn emphasized the number of officers in the bar, their placement relative to the exits, their behavior (in asking various patrons for identification), and Hopkins' persistence in asking to search the wristlet. She argued that, under the circumstances, a reasonable person would not have felt free to refuse Hopkins' request. The State, however, noted that the officers never blocked the door closest to Korn to prevent her from leaving. Ultimately, the State maintained that the encounter was a voluntary one and that Hopkins' follow-up question regarding the wristlet did not transform that encounter into a seizure or cause Korn to consent against her will.
The district court took the motion under advisement. Later, in its written decision denying the motion, the district court reviewed Kansas caselaw and noted that although many factors may indicate that an encounter between an individual and an officer is in fact an illegal seizure, a request for identification alone is not a seizure. Because the interaction between Korn and Hopkins involved only a request for identification and a request to search without any show of authority, intimidation, or coercion, the district court, in a very well-reasoned opinion, held that Korn was not illegally seized and that the “consent to search the wristlet was voluntarily and feely given.”
Korn proceeded to a bench trial on stipulated facts, and the district court convicted her of the possession charge. The district court then sentenced her to 11 months' imprisonment but granted probation. Korn timely appealed.
Analysis
On appeal, Korn renews her argument that the encounter with Hopkins constituted an illegal seizure and that, consequently, the consent to search her wristlet was involuntary. The standard of review on a motion to suppress is a bifurcated one. This court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. However, when the material facts underlying the district court's decision are not in dispute, the question of whether to suppress is a question of law over which this court exercises unlimited review. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).
Both the Fourth Amendment to United States Constitution and § 15 of our Kansas Constitution Bill of Rights protect individuals and their property against unreasonable searches and seizures. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). As such, any warrantless search is per se unreasonable unless it falls within one of the recognized exceptions to the search warrant requirement. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied ––– U.S. ––––, 131 S.Ct. 2114, 179 L.Ed.2d 908 (2011). One such exception is the consensual search. The State carries the burden of establishing the scope and voluntariness of such a search. These questions present issues of fact which this court reviews under the substantial competent evidence standard. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009).
But a search is only consensual if two conditions are met: “(1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given, and (2) the consent must have been given without duress or coercion, express or implied.” 289 Kan. 373, Syl. ¶ 4, 212 P.3d 203. Korn focuses on the second condition and contends that the coercive nature of the environment in the bar that night poisoned her consent in two ways. First, she argues that her consent was the product of Hopkins illegally seizing her. Second, she contends that even if the encounter was voluntary, Hopkins essentially coerced her into allowing the search when he asked her for identification a second time. Each argument will be addressed in turn.
Voluntariness of Encounter
Kansas recognizes four types of law enforcement encounters: (1) consensual or voluntary encounters, (2) investigatory detentions, (3) public safety stops, and (4) arrests. Thompson, 284 Kan. at 772, 166 P.3d 1015. Unlike the latter three types of law enforcement interactions, voluntary encounters are not considered seizures and do not trigger the protections of the Fourth Amendment. See 284 Kan. at 772, 166 P.3d 1015.
As a general rule, a voluntary encounter is not transformed into a seizure simply because an individual responds to law enforcement questions. State v. Williams, 297 Kan. 370, 376, 300 P.3d 1072 (2013). Additionally, an “officer's mere request for identification or identifying information generally will not constitute a seizure.” State v. Moralez, 297 Kan. 397, 407, 300 P.3d 1090 (2013). However, retention of identification to run a warrant check on an individual who is not otherwise suspected of criminal activity may rise to the level of an illegal seizure. 297 Kan. at 407–08, 300 P.3d 1090. In fact, our Supreme Court has been highly critical of officers approaching random citizens and “run[ning] warrants checks for no apparent reason,” explaining:
“[W]e now expressly disapprove of any language in [State v.] Martin [, 285 Kan. 994, 179 P.3d 457, cert. denied 555 U.S. 880, 129 S.Ct. 192, 172 L.Ed.2d 138 (2008),] that could be interpreted as holding or suggesting that ‘fishing expeditions' by law enforcement officers are generally acceptable as long as the detention is brief and the officers are courteous. [Citation omitted.] In fact, quite the opposite may be true. Regardless of whether a suspicionless detention to identify a citizen and check that citizen for outstanding arrest warrants is characterized as a standard practice, a field interview, a pedestrian check, or a ‘fishing expedition,’ such a detention can, and often will, demonstrate at least some level of flagrant police conduct.” Moralez, 297 Kan. at 416, 300 P.3d 1090.
Korn relies on this language from Moralez and argues that the bar check constituted more than a mere request for identification but rather was an illegal fishing expedition and, by extension, a seizure of her person. And clearly, the foregoing language raises questions about the nature of Hopkins' interactions with bar patrons as he collected their names and ran warrant checks based solely on their habit of leaving and returning to the bar. However, Korn fails to realize two things about our Supreme Court's disapproval of such fishing expeditions: (1) The language from Moralez speaks directly to the application of the attenuation doctrine, not to the stops themselves; and (2) Korn herself never produced identification for Hopkins to retain and run a warrant check on. See 297 Kan. at 413–17, 300 P.3d 1090. The question here is simply whether Korn's interaction with Hopkins, which never produced identification or implicated the attenuation doctrine, constituted a voluntary encounter.
An encounter between law enforcement and an individual will be deemed consensual—and therefore not a seizure—if under the totality of the circumstances the officer's conduct conveys to a reasonable person that he or she is free to terminate the encounter. State v. Murphy, 296 Kan. 490, 492, 293 P.3d 703 (2013). The totality of the circumstances test essentially questions the coercive effect of the encounter. See Thompson, 284 Kan. at 811, 166 P.3d 1015. This coercive effect can be achieved by “show[s] of authority” such as “ ‘the presence of more than one officer, the display of a weapon, physical contact by the officer, use of a commanding tone of voice, activation of sirens or flashers, a command to halt or approach, and an attempt to control the ability to flee.’ “ Williams, 297 Kan. at 377, 300 P.3d 1072. Other factors in determining the voluntariness of the encounter include “the prolonged retention of a person's personal effects” by officers, the “absence of other members of the public” during the interaction, and “physical disengagement before further questioning.” Thompson, 284 Kan. at 811, 166 P.3d 1015. However, the above-mentioned list of factors is “neither exhaustive nor exclusive,” and no factor standing alone “ ‘ “is legally determinative, dispositive, or paramount.” ‘ “ Williams, 297 Kan. at 377, 300 P.3d 1072. Instead, a court must carefully scrutinize all of the circumstances surrounding the encounter to determine whether it is indeed a voluntary one. 297 Kan. at 377, 300 P.3d 1072.
Applying the foregoing factors to the instant case clearly demonstrates the voluntariness of Korn's encounter with Hopkins. Although five officers (four in uniform and one in plain clothes) attended the bar check, only two (Hopkins and Turner) remained fully inside the bar to question patrons. Nothing in the record indicates that any of the officers ever displayed their weapons, laid hands on Korn, or even raised their voices. Additionally, the interaction occurred in a bar with at least a number of other patrons—including Korn's party—and Hopkins never attempted to remove Korn from her table. Hopkins never disengaged from Korn before asking about the wristlet, but only questioned her briefly. Korn stated that the officers “made such a commotion” when they arrived but never said whether she noticed them speaking to or commanding other patrons. She also could not recall any other patrons being taken into custody prior to her conversation with Hopkins. And although Korn believed that two of the officers were blocking one of the doors and the bathroom, she also acknowledged that a second door—the door closest to her table—remained unguarded.
It is true, as Korn observes, that Hopkins did not suspect her of any criminal activity. It is also true that by asking to search the wristlet, Hopkins pressed the matter of identification instead of simply taking Korn at her word. But substantial competent evidence is such 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). The district court concluded that a reasonable person would have felt free to terminate the encounter at the bar and refuse Hopkins' questions. Similarly, a reasonable person could find that the testimony at the suppression hearing supported the district court's conclusion. As such, the district court did not err in finding that the encounter between Hopkins and Korn was a voluntary one and did not vitiate Korn's consent.
Coercion
Korn next argues that Hopkins coerced her into allowing a search when he asked to search her wristlet specifically for identification. Specifically, she claims that “[h]is persistence would convey to a reasonable person in the defendant's shoes that the officer had some legal authority to verify her identity and that she had no choice but to allow the officer to search her purse.”
Like with consensual encounters between law enforcement and citizens, the question of whether “consent was freely given is determined by the totality of the circumstances” and considers “whether a reasonable person would feel free to decline the officer's requests or otherwise terminate the encounter.” State v. Spagnola, 295 Kan. 1098, 1107, 289 P.3d 68 (2012). Many of the factors relevant to the question of consensual encounters are also relevant to determining the voluntariness of a consent to search. See State v. Tatum, 40 Kan.App.2d 846, 858, 196 P.3d 441 (2008). Other factors include whether the consent was influenced or obtained “ ‘by implied threat or covert force,’ “ harassment or intimidation, subtle coercion in officer questions, or the “ ‘possibly vulnerable subjective state of the person who consents.’ “ Spagnola, 295 Kan. at 1108, 289 P.3d 68. Consent may also be involuntary if it is not “the product of the free and independent will of the accused” because his or her will “has been overborne and his capacity for self-determination critically impaired.” State v. Wilson, 30 Kan.App.2d 100, 108, 39 P.3d 668, rev. denied 273 Kan. 1040 (2002).
Korn points to Hopkins' persistence as the sole indicator of coercion or duress. And, indeed, persistent questioning may rise to the level of coercion in some situations. For example, a request to search that extends into a half-hour conversation involving multiple discussions about search warrants after an initial refusal may overbear the suspect's will and lead to involuntary consent. See State v. Kermoade, 33 Kan.App.2d 573, 580–81, 105 P.3d 730, rev. denied 279 Kan. 1009 (2005). But that level of persistence is not present here. Hopkins testified that the question about the wristlet immediately followed Korn's statement about not having her identification with her. The exchange clearly lasted only a few seconds, and Korn never refused Hopkins. Korn stated generally that the presence of the officers and the bar's atmosphere made her slightly nervous, but nothing in the record indicates that her nerves made her especially vulnerable. Hopkins said nothing to threaten or force her, and his questions were innocuous—and not, as Korn appears to suggest, coercive or misleading. In short, Korn's will was not overborne, and she retained the ability to refuse Hopkins' request to search the wristlet.
Based on the foregoing analysis, substantial competent evidence supports the district court's conclusion that Korn voluntarily consented to a search of her wristlet after a voluntary encounter with Hopkins. Hopkins was one of two officers actually in the bar, never raised his voice or exerted physical force toward Korn, and did not prevent her from exiting the bar. And although he questioned her twice about identification, he did not overbear her will such as to make her consent to search involuntary. Accordingly, we affirm the district court's decision.
Affirmed.