Opinion
No. 106,389.
2012-07-6
STATE of Kansas, Appellant, v. Derek W. MUELLER, Appellee.
Appeal from Douglas District Court; Paula B. Martin, Judge. Gregory T. Benefiel, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellant. Jacquelyn E. Rokusek, of Olathe, for appellee.
Appeal from Douglas District Court; Paula B. Martin, Judge.
Gregory T. Benefiel, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellant. Jacquelyn E. Rokusek, of Olathe, for appellee.
Before LEBEN, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
LEBEN, J.
The Fourth Amendment to the United States Constitution protects our right to be secure in our person and papers from unreasonable searches or seizures by the government, including law-enforcement officers. So an officer can't stop and detain us without cause to do so.
The Douglas County District Court concluded that a highway patrol trooper had violated this rule when he pulled his marked patrol car into a private driveway where another driver had pulled in and stopped his car. The officer had effectively detained the driver without cause, and the district court suppressed evidence developed after the stop that the driver had been under the influence of alcohol. The State has appealed, arguing that nothing more than a legal, voluntary encounter took place between the officer and the driver—after all, an officer may approach us and ask questions in public places, and we may respond or not respond as we wish.
But the test for a voluntary encounter is that the person feels free to leave or to decline to answer questions. Here, the officer had sped up on a mostly deserted street shortly after 2 a.m. to close the distance between his car and the driver's, and then he had followed the car onto a residential street and into a driveway. The officer then approached the car on foot while shining a flashlight on the driver and his passenger. And the officer immediately adopted an accusatory tone, not one that gave any indication that the driver was free to ignore the officer. We therefore agree with the district court that the officer in this instance violated the driver's right to be free from unreasonable seizure and that all evidence obtained after the car stop must be suppressed.
Factual Background
In March 2011, Derek Mueller drove in and out of a gas station parking lot after 2 a.m. as a highway patrol trooper watched for drunk drivers in Lawrence. The officer followed Mueller—starting from some distance behind, the officer drove quickly to catch up, something Mueller may have noticed in his rear-view mirror. With the officer approaching, Mueller signaled a left turn and turned left at a green light. The officer turned left at the same intersection, while Mueller turned into a driveway. Mueller then pulled to the front of the driveway and turned off the car's lights and engine. The driveway was more than two car-lengths deep and was wide enough to accommodate two cars side by side. The officer followed Mueller into the driveway and parked one lane over and behind Mueller. Mueller rolled his window down.
The officer, who wore a highway patrol uniform with weapons on his belt, then got out of his marked patrol car. He approached Mueller and asked, “Live here?” Mueller responded that he didn't live there and that he was turning around. The officer responded by noting that Mueller had turned his car off. He asked to see Mueller's driver's license and told Mueller to get out of the car. Because the issue before us is determined by what has taken place to this point, we won't provide details of the rest of the officer's interactions with Mueller and the passenger, but the officer eventually arrested Mueller for DUI. In a written report, the officer certified that his reason for stopping the car was that Mueller “pulled into the driveway, stopped then shut off [the] car.” The officer testified that he didn't see Mueller commit a traffic infraction or a crime before the encounter.
Mueller was charged with DUI, but the district court granted his motion to suppress the evidence against him because the court concluded that the officer had detained Mueller without probable cause to do so. The State has appealed to this court.
Analysis
This case presents a fairly narrow issue on appeal. The State concedes that the officer didn't have adequate reasons under the Fourth Amendment to stop and detain Mueller; that would have required at least a minimum amount of objective information suggesting criminal activity, not merely a hunch that a crime was being committed. See State v. Coleman, 292 Kan. 813, 817–18, 257 P.3d 320 (2011); State v. Pollman, 286 Kan. 881, Syl. ¶¶ 3–5, 190 P.3d 234 (2008); State v. Moralez, 44 Kan.App.2d 1078, 1095, 242 P.3d 223 (2010), pet. for review granted September 23, 2011 (pending). Even so, the State argues that the district court shouldn't have suppressed the evidence because Mueller's encounter with the officer was voluntary. The district court rejected the voluntary-encounter claim, and Mueller argues that the district court was correct in its conclusion that a reasonable person in Mueller's position wouldn't have felt free to leave after the officer pulled into the driveway and approached Mueller's car.
The district court applied the right legal standard. A person's encounter with a law-enforcement officer is voluntary if, considering all the circumstances of the encounter, “the officer's conduct conveys to a reasonable person that he or she was free to refuse the [officer's] requests or otherwise end the encounter.” State v. Walker, 292 Kan. 1, Syl. ¶ 2, 251 P.3d 618 (2011). We must now determine whether the district court came to the right conclusion-that the encounter wasn't voluntary—when it applied that standard. We must accept whatever factual findings the district court has made, assuming the evidence supports them; we then must independently determine the legal issue—here, whether this was a voluntary encounter between Mueller and the officer—without any required deference to the district court. See Walker, 292 Kan. 1, Syl. ¶ 3;Poteet v. Kansas Dept of Revenue, 43 Kan.App.2d 412, 414–16, 233 P.3d 286 (2010).
Whether a particular encounter is voluntary is a fact-driven question, and our Supreme Court has emphasized that no list of factors to consider is exclusive. State v. Thompson, 284 Kan. 763, 811, 166 P.3d 1015 (2007). Even so, the court has given us a list of factors that might be considered when determining whether a reasonable person would have felt free to refuse to answer an officer's questions or to leave the situation. 284 Kan. at 811. Factors tending to show a voluntary 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. Factors tending to show a nonvoluntary, or coercive, encounter include: the threatening presence of more than one officer, the officer displaying a weapon, the touching of the person, the use of aggressive language or tone of voice indicating that the person must comply with the officer, the keeping of a person's personal effects such as identification, a request to accompany the officer somewhere, interaction in a nonpublic place, the absence of other people, or the display of emergency lights. 284 Kan. at 811. A seizure occurs when the officer makes a show of authority, in view of all the surrounding circumstances, that would communicate to a reasonable person that he or she isn't free to leave—and when the person submits to that show of authority. State v. Smith, 286 Kan. 402, 406, 184 P.3d 890 (2008).
An officer may approach an individual in public and ask questions if the person is willing to listen. Walker, 291 Kan. at 6. The mere fact that an officer is in uniform and has a weapon doesn't by itself make the encounter coercive. State v. Young, 37 Kan.App.2d 700, 715, 157 P.3d 644 (2007). Nor is an officer required to inform someone he or she is free to leave or that the person isn't required to answer any questions, though the absence of this advice is a factor to be considered under the totality of the circumstances. 37 Kan.App.2d at 715–16. An encounter isn't a seizure under the Fourth Amendment “[u]nless the surrounding circumstances are so intimidating as to demonstrate that a reasonable person would have believed he or she was not free to disregard the questions.” Thompson, 284 Kan. 763, Syl. ¶ 17. A “voluntary encounter may become a seizure if an officer by word or deed demonstrates a show of authority which would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority.” State v. Tatum, 40 Kan.App.2d 846, 852, 196 P.3d 441 (2008).
With these rules in mind, let's look at our facts in greater detail. Mueller turned into a private driveway and was initially only partway up the driveway; the car's lights were still on when the car first appears on the police video. When the officer turned onto the street, Mueller drove up farther into the driveway and turned the car's lights off. It isn't clear when Mueller turned the engine off, but it was off before the officer approached the car. Mueller rolled down his window before the officer got out of his patrol car.
The officer approached Mueller's door carrying a flashlight and shining it into the car, directing the light on its two occupants. With the officer standing immediately outside Mueller's door, Mueller could not have opened it in order to leave. The police video shows a 30–second encounter before the officer told Mueller to get out of the car while the passenger stayed put:
“[Officer:] Live here?
“[Mueller:] No, I don't, sir, honestly.
“[Officer:] No, you don't. No, you don't.
“[Mueller:] I'm not going to lie to you.
“[Passenger:] We were just turning around.
“[Mueller:] Turning around, going back north.
“[Officer:] You turned around. You turned your lights off and shut the car off.
“[Mueller:] I did.
“[Officer:] Can I see your driver's license, please?
[Mueller hands his license to the officer.]
“[Officer:] Sir, I want you [the passenger] to stay in the car there, and I want you [the driver] to come out with me for a second.”
The district court found that a reasonable person in Mueller's position wouldn't have felt free to leave and that Mueller was illegally seized without reasonable suspicion:
“Well, I guess the thing we all agree on was there was no reasonable articulable suspicion to initiate a stop of the vehicle. So the question becomes whether it was a voluntary contact.
“It's hard to tell when the engine was shut off. You can tell from the video when the lights went off. The trooper is pulling into the drive and you can see the angle of the trooper's headlights at the time that the defendant's lights go off When the engine was shut off, I don't know. No one seems to know the answer to that.
“But I don't think anyone would feel free to leave when a state trooper pulls in behind your car, marked vehicle, uniformed officer gets out of the car and approaches your vehicle. I can't imagine anyone who thinks that they can simply pull out and go on their merry way and disregard or ignore that trooper. I don't find that it was a voluntary contact and the motion is granted.”
The specific facts noted by the district court are supported by substantial evidence. The video shows that Mueller turned his lights off when the officer pulled into the driveway. The officer followed Mueller into the driveway and parked behind him, though it doesn't appear that the officer parked in a way that would have physically blocked Mueller from backing out of the driveway. The officer was in uniform and driving a marked patrol car.
In its appellate brief, the State relies almost exclusively on State v. McGinnis, 290 Kan. 547, 548–49, 233 P.3d 246 (2010), which involved an officer who approached an impaired driver after the driver had gotten out of his vehicle and spoke to the driver about an underwater car in a nearby creek. McGinnis listed some—but not all—of the Thompson factors, and the court concluded that the encounter was voluntary. 290 Kan. at 553, 562. The court noted that the officer parked two or three car lengths behind McGinnis' car, approached him on foot, greeted him by saying “hello,” and asked innocuous questions such as whether “everything was okay” and whether he knew anything about the underwater car. 290 Kan. at 560–61. Under these circumstances, the court concluded that a reasonable person would have felt free not to answer the officer's questions. Mueller's case differs in several respects: the officer followed Mueller for some distance, parked closer to his car, and quickly addressed him in an accusatory tone.
The question before us is whether the surrounding circumstances were so intimidating as to demonstrate that a reasonable person in Mueller's situation would have believed he wasn't free to disregard the officer's questions. Here, the officer briefly used his emergency lights to run a red light and drove at an increased rate of speed to catch up with Mueller (though we don't know whether Mueller saw the emergency lights). The officer followed Mueller through a left turn down a residential street that appeared to have no other traffic after 2 a.m. A reasonable person in Mueller's position is likely to perceive that the officer was following him and that a stop was about to happen. The officer followed Mueller into the driveway. When the officer approached, he didn't ask permission to ask questions, didn't ask about Mueller's welfare, and didn't communicate that Mueller was free to leave or to refuse to answer. The officer's tone was accusatory—“Live here?” followed, when Mueller said no, by a scolding, “No, you don't. No, you don't .” This accusatory tone continued when Mueller and his passenger said they were turning around, to which the officer skeptically replied that Mueller had turned his car off.
Officers are trained—for understandable reasons—to take control of a situation in a way that commands compliance. Based on our view of the videotape of this encounter, the officer's actions commanded compliance here. Nothing about the officer's conduct conveyed that Mueller was free to leave or to not respond to his questions—which is required for us to find a voluntary encounter. See Walker, 292 Kan. 1, Syl. ¶ 2. Further, the surrounding circumstances were intimidating enough that a reasonable person in Mueller's position wouldn't have felt free to back out of the driveway or ignore the officer once the officer approached the car. Although the State argues that Mueller “could have rolled up his window and ignored [the officer],” we can't imagine a reasonable person feeling free to do so.
When the defendant moves to suppress evidence based on a claim that law-enforcement officers have violated the defendant's rights, the State bears the burden to demonstrate that the challenged search or seizure was lawful. State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011). We agree with the district court that the State failed to meet its burden to show that this was a voluntary encounter.
We therefore affirm the district court's judgment.
* * *
ARNOLD–BURGER, J., dissenting:
I respectfully dissent from the majority's finding that the officer's encounter with Mueller was not voluntary. I believe it was voluntary and accordingly, would reverse the district court's suppression of all evidence obtained and statements made after the officer approached Mueller's parked car.
There is no dispute that the officer did not have a reason to stop Mueller. Mueller had done nothing illegal. The officer was acting solely on a hunch. There is also no dispute concerning what happened during the encounter, because we have the benefit of the police dash cam video of the entire encounter. And finally, there does not seem to be any dispute that by the time the officer asked for Mueller's driver's license and asked him to step from the car, the officer had a reasonable and articulable suspicion that Mueller was under the influence of alcohol, thus justifying an investigatory detention. So this case rests on whether the 30–second encounter between the officer and Mueller was an illegal seizure, implicating the Fourth Amendment to the United States Constitution.
At approximately 2 a.m., Mueller pulled into the northeastern quadrant of a two lane residential driveway, turned off his lights, and turned the vehicle off. The officer pulled in behind him in the southwest quadrant of the driveway. The officer did not have his lights on and made no showing of force, although he did have a flashlight with him. He was not blocking Mueller's exit. Mueller's driver's side window was already rolled down. The officer approached the window and noticed that Mueller had glazed and bloodshot eyes. He then asked Mueller, in what appears to this author to be a normal tone—“Live here?” When Mueller responds, “No, I don't, sir, honestly.... I'm not going to lie to you.” The officer responds, in an accusatory tone, “No, you don't. No, you don't.” At the same time the passenger volunteers that they were just turning around and Mueller chimes in that they were just turning around to go back north. When the officer points out that they had turned the lights and ignition off, thereby making it difficult to turn around, there is no response as the officer looks into the car. The officer testified that during this brief conversation, he smelled the strong odor of alcohol coming out of the driver's side window. It was also immediately apparent that the passenger was “obviously super intoxicated” and he believed that Mueller was slightly slurring his words. Upon believing that Mueller may also be intoxicated, he asked for Mueller's driver's license and, when he retrieved it, the officer asked that Mueller step out of the car. From the time the officer approached Mueller's open car window to the point he asked for Mueller's driver's license, approximately 30 seconds elapsed. This was consistent with the officer's testimony that he had formed his opinion that Mueller may be intoxicated within “30 seconds to a minute. It was almost immediate.”
Following the suppression hearing, the district judge held:
“I don't think anyone would feel free to leave when a state trooper pulls in behind your car, marked vehicle, uniformed officer gets out of the car and approaches your vehicle. I can't imagine anyone who thinks that they can simply pull out and go on their merry way and disregard or ignore that trooper.”
Unfortunately, as the majority points out, that is not the law. An officer may approach an individual in a public place and ask questions if the person is willing to listen. State v. Walker, 292 Kan. 1, 6, 251 P.3d 618 (2011). The mere fact that an officer is in uniform and has a weapon does not make the encounter coercive. State v. Young, 37 Kan.App.2d 700, 715, 157 P.3d 644 (2007). To properly determine if a police encounter is a seizure or a voluntary encounter, the court is required to examine the totality of the circumstances. State v. Thompson, 284 Kan. 763, 775, 166 P.3d 1015 (2007). The only stated circumstances relied upon by the district court, that the officer pulled behind, but was not blocking, Mueller's car and approached Mueller in uniform, are not legally sufficient to find the encounter to be coercive. Therefore, I would end the analysis and find that the district court's conclusion was not supported by the evidence upon which it expressly relied.
Acknowledging that the mere fact that an officer approaches a parked car in uniform is not inherently coercive, the majority goes on to point to other factors, not cited by the district court, to bolster its conclusion that the officer's actions were coercive. The majority cites the following additional factors:
1. A reasonable person in Mueller's position is likely to perceive that the officer was following him and that a stop was about to happen.
2. The officer did not advise Mueller that he was free to leave or refuse to answer the officer's questions.
3. The officer had an “accusatory” tone.
4. The officer was skeptical when Mueller told him they were just turning around.
The majority then concludes that the surrounding circumstances were “intimidating” and the majority cannot imagine a reasonable person feeling free to roll up his window and ignore the officer.
A person's encounter with a law-enforcement officer is voluntary if, considering all the circumstances of the encounter, “the officer's conduct conveys to a reasonable person that he or she was free to refuse the [officer's] requests or otherwise end the encounter.” Walker, 292 Kan. 1, Syl. ¶ 2. The reasonable person test presupposes an innocent person. Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
In Walker, our Supreme Court reiterated a list of objective factors to help determine whether a law enforcement-citizen encounter is voluntary or an investigatory detention. The list includes: 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 to approach, and an attempt to control the ability to flee. 292 Kan. at 6–7. All of these factors were conspicuously absent in this case. But because the list is nonexclusive and nonexhaustive, a court is free to examine other factors and the majority did just that. I will examine each.
Mueller's Perception That The Officer Was Following Him.
Even though the majority admits there is absolutely no basis in the record to support a finding that Mueller knew he was being followed, it finds that “[a] reasonable person in Mueller's position is likely to perceive that the officer was following him and that a stop was about to happen.” Again, we must remember that a reasonable person presupposes an innocent person. Bostick, 501 U.S. at 438. And Mueller's state of mind is not a relevant factor to consider. See Thompson, 284 Kan. at 810. Because there is no evidence in the record to support a conclusion that Mueller, let alone an innocent person, would have perceived that he was about to be stopped by police, the majority improperly relies on this factor.
Failure To Advise Mueller That He Was Free To Leave Or Refuse To Answer Questions.
The failure to advise a defendant that he or she is free to leave or refuse to answer questions is a valid factor to consider in determining whether an encounter is coercive. Certainly if such advice is given, it would be a good indication that any subsequent actions by the person so advised were voluntary. But the failure to give such advice is not determinative. See State v. Reason, 263 Kan. 405, 414, 951 P.2d 538 (1997) (“The ‘free to go’ signal is a factor in determining whether [the defendant] objectively felt under police coercion at the time of his consent. Even if [the officer] had failed to tell [the defendant] he was free to go before requesting consent to the search, that may not necessarily have invalidated the consent.”). There is no dispute in this case that such advice was not given to Mueller.
Use Of An Accusatory Tone.
Although the officer used an “accusatory tone”, there is no indication that he used a “commanding tone of voice.” To command is to order or to direct authoritatively. See Black's Law Dictionary 304 (9th ed.2009). If the officer uses a commanding tone, this would certainly indicate a show of authority suggesting that a person fails to comply at his or her own peril, and accordingly it would be an important objective factor to consider in determining whether a person feels free to leave. In cases in which our courts have found a commanding tone of voice was used the officer actually ordered the defendant to take certain action. See State v. Hill, 281 Kan. 136, 141–45, 130 P.3d 1 (2006) (officers ordered defendant out of car); State v. Gross, 39 Kan.App.2d 788, 797–801, 184 P.3d 978 (2008) (officers ordered defendant to roll down window and exit the car). The tone of voice relates to how a reasonable person may view the necessity of complying with a police request.
To accuse someone of something is to suggest wrongdoing or to blame. See Black's Law Dictionary 24–25 (9th ed.2009). There are no Kansas cases that point to an “accusatory tone” in an officer's voice as a factor that would indicate a show of authority by police sufficient to convert a voluntary encounter into an investigatory detention. Use of an accusatory tone is more commonly referenced when analyzing whether an interrogation has become coercive so as to implicate the holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694,reh. denied385 U.S. 890 (1966). And even in those cases, the asking of incriminating questions, by itself, is not relevant to the totality-of-the circumstances inquiry. It is only when questioning becomes accusatory, persistent, and intrusive that an otherwise voluntary encounter is transformed into a coercive one. United States v. Ringold, 335 F.3d 1168, 1173–74 (10th Cir.), cert. denied540 US. 1026 (2003). In this case, the officer asked no questions, demanded no action, he simply parroted back Mueller's statement that he did not live at the residence. I fail to see how the officer's tone in this case would lead to a conclusion that it created a coercive environment for a reasonable person.
Display Of Skepticism.
The majority points to the fact that the officer was skeptical when Mueller told him they were just turning around but fails to point to how this would lead a reasonable person to conclude that he or she was experiencing a coercive environment. The officer was justified in asking Mueller how he planned to accomplish this feat with the car turned off. It is hard to deny the fact that most people do not turn off the vehicle's headlights and ignition when using a residential driveway to turn around.
Furthermore, there are no cases that this author was able to locate in any court that suggest that a display of skepticism would be a valid factor to consider in determining whether an encounter was voluntary. I hazard to guess that such a factor would turn this area of jurisprudence on its head, as officers often display skepticism when confronted with inconsistent statements or improbable explanations.
The factors relied upon by the majority simply do not support its conclusion that the circumstances were intimidating and coercive, when viewed by a reasonable and innocent person. It is also important to note that this encounter was unusually brief, just 30 seconds. Certainly, the longer the detention, the more likely it is to be considered coercive. The length of the detention in this case weighs in favor of a determination that it was voluntary. Unlike cases where the officer asks numerous questions and monopolizes the defendant for several minutes, it took only 30 seconds for the officer to develop his suspicion, which was later confirmed, that Mueller was too intoxicated to drive.
Given the totality of the circumstances I would reverse the district court and find that the State met its burden of proof in establishing that this was a voluntary encounter that subsequently and lawfully turned into an investigatory detention based on Mueller's statements and actions.