Opinion
111,835.
07-24-2015
STATE of Kansas, Appellee, v. Richard T. McCLELLAN, III, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The only question that arises in this appeal is whether it was reasonable for a police officer to ask a man to step outside of a bar to answer some questions about a gun that the officer saw in the man's car in the parking lot. We believe the officer's actions were reasonable. As a result, the subsequent search of the automobile and the admission of the gun into evidence were proper. Therefore, we affirm Richard T. McClellan, Ill's conviction for being a felon in possession of a firearm contrary to K.S.A.2014 Supp. 21–6304(a)(3)(A).
The police officer was patrolling in Old Town, a district in Wichita.
On September 15, 2012, Wichita Police Officer Dustin Nail was patrolling the Old Town district of Wichita. The Old Town area contains bars, nightclubs, and restaurants. Nail grew suspicious of two men he saw near a car in a parking lot in the district. Nail was a member of the Special Community Action Team of the police department. On this occasion, team members were patrolling the Old Town district because criminal activity had recently increased in the area. This activity included some shootings, and an increased police presence was implemented in an attempt to curb the violence.
As he passed a parking lot around 11:30 p.m., Nail noticed two men near a parked car. One stood near the passenger side with the passenger door open and the other, later identified as McClellan, was walking away from the driver's side of the car. Officer Nail said that when the two men saw his patrol car they looked at him with their eyes wide open and then turned their backs to him. Nail did not see anything in either McClellan's or the passenger's hands at that time.
Because Nail thought that McClellan and the passenger were acting nervously and were surprised to see Nail, he turned his car around to drive by them again. Nail later testified that they appeared to be very nervous because McClellan and his passenger had looked at Nail with their eyes “wide open.” Nail thought this was suspicious. As he drove past them, the passenger shut the passenger door and the two men walked away from the car.
Nail pulled his patrol car into the lot where McClellan's car was parked. Nail said he saw an open beer can near McClellan's car. Nail said the beer can appeared to be fresh, as if it had recently been thrown down. Nail checked the area around the car and then looked in the car. At this point he saw the grip of a handgun under the driver's seat.
Nail described McClellan and his passenger to other officers in the area in an effort to locate them so Nail could talk to them. Those officers found the passenger outside of Club Liquid and stopped him to talk. The passenger told them that McClellan may have gone into Club Liquid.
Nail went into Club Liquid and found McClellan. Nail told McClellan he needed to speak with him about the gun in his car and asked him to go outside with him to talk. Nail told McClellan that if he did not have anything to do with the gun in the car, then he would be free to leave. McClellan did not resist.
Nail did testify that McClellan was not free to leave at this point as Nail intended to detain McClellan in order to investigate about the handgun. McClellan identified himself to Nail and told him that he was a felon and he had the gun for his protection.
A computer search revealed that McClellan was a felon and there was an outstanding warrant for his arrest. Nail arrested McClellan on the warrant and read him his Miranda rights. He searched McClellan's person and found his car keys. He then used the keys to get into McClellan's car to seize the gun.
McClellan moved to suppress the gun that was found in the car. He argued it was improperly obtained and should be suppressed.
At the suppression hearing, McClelland argued that Officer Nail could not have seen a firearm in plain view in McClellan's car due to window tinting and the seat configuration. Therefore, Nail had no reason to detain him to ask about the gun and accordingly he challenged the subsequent search of his person, his car, and the seizure of the gun. A criminal defense investigator hired by McClellan testified about the improbability that Nail actually saw the grip of the handgun under the driver's seat of a vehicle like McClellan's.
The district court denied the motion to suppress. The matter was tried on stipulated facts and the court convicted McClellan of being a felon in possession of a firearm. At McClellan's sentencing hearing, the trial court granted his motion for dispositional departure and sentenced him to 18 months' probation with a 20–month underlying prison sentence.
The only matter that was appealed is the reasonableness of the detention.
Because the parties do not dispute the material facts, including that McClellan was detained, this court's suppression question is solely one of law. See State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678 (2011).
The State contends we should not entertain this argument as McClellan is raising a different argument on appeal than that raised before the district court. Because the record reveals no real dispute of the facts and McClellan has a fundamental right to be free from unreasonable searches, we will consider the merits of the issue regardless of whether his motion to suppress preserved his challenge on appeal to Nail's basis to detain him.
It is clear that the parties do not dispute that Nail detained McClellan. Nail followed McClellan into Club Liquid, approached him, and asked him to step outside. Nail told McClellan he would be free to leave if he did not have anything to do with the gun Nail observed in the vehicle.
Consequently, the only question we must answer is whether Nail had reasonable suspicion of criminal activity when McClellan was detained. See State v. DeMarco, 263 Kan. 727, 734–35, 952 P.2d 1276 (1998). McClellan argues that Nail lacked reasonable suspicion to seize him. The trial court found Nail's explanation for the detention was “appropriate.”
An officer may detain an individual if the officer has reasonable and articulable suspicion based on the fact that the person stopped has committed, is committing, or is about to commit a crime. Even though K.S.A. 22–2402(1) codified the “stop and frisk” law as set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “police conduct in a ‘stop and frisk’ situation must be judged under the reasonable searches and seizures clause of the Fourth Amendment to the Constitution of the United States and the judicial interpretations thereof.” State v. Jackson, 213 Kan. 219, 222, 515 P.2d 1108 (1973).
Reasonableness is based on the circumstances and viewed in terms as those versed in law enforcement considering common sense and ordinary human experience. See DeMarco, 263 Kan. at 734–35. Courts give deference to a trained officer's ability to distinguish between innocent and suspicious circumstances, but the officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity. See 263 Kan. at 735 ; State v. Moore, 283 Kan. 344, 354, 359, 154 P.3d 1 (2007).
This is a matter of common sense. Nail is a member of a team of police officers assigned to curb violence in the Old Town area of Wichita. Recent shootings in the area were a concern to the officers; therefore, Nail's vigilance concerning firearms is understandable. McClellan appeared to be the driver of the car, and Nail saw the gun's grip beneath the driver's seat of the car. An objective officer could have had a reasonable and articulable suspicion that McClellan had recently driven the vehicle with a loaded firearm in the area of his immediate control.
McClellan argues that Nail could not have seen the gun because his windows were tinted. Common sense leads us to a different conclusion. First, Nail said he saw the gun. Second, he went into the nightclub and asked McClellan, the apparent driver of the car, to step outside because he wanted to ask him some questions about a gun. If he, indeed, could not see a gun through the windshield, why would he ask McClellan to step out and answer some questions about a gun?
Then, once McClellan admitted, without being asked, that he was a felon and also admitted that it was his gun in the car, Nail had sufficient probable cause to search the vehicle. Obviously, after those admissions, Nail had a reasonable belief that a felony crime had been committed, to wit: a felon in possession of a firearm contrary to K.S.A.2014 Supp. 21–6304(a)(3)(A).
Our research reveals that at the time of the incident a city ordinance, Wichita City Code Section 5.88.010(f) (2012), prohibited a loaded firearm from being under one's immediate control and carried in any vehicle while on property open to the public. The area within immediate control of an occupant is the area within his or her reach. See New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), overruled on other grounds as recognized in Davis v. United States, 564 U.S., ––––, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (citing Arizona v. Gant, 556 U.S. 332, 334, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 [2009] ). Therefore, the loaded and unsecured firearm under the driver's seat in McClellan's car would have been in the area under the driver's immediate control. Obviously the parking lot was open to the public.
Subsection (g) of the same city ordinance also prohibited carrying in a car an unloaded firearm that was not enclosed in a container. Therefore, an objective officer could have had a reasonable and articulable suspicion that McClellan had recently driven the vehicle with a loaded firearm in the area of his immediate control in violation of Wichita City Code Section 5.88.010(1)(f) or that he had an unsecured firearm in violation of Section 5.88.010(1)(g).
We do not find it unreasonable for a police officer to ask someone to step outside a bar, late at night, in a violent crime area that included shootings, in order to answer some questions about a firearm observed in a parked car that the individual had just walked away from. The district court did not err when it refused to suppress the handgun.
Affirmed.