Opinion
No. 109,057.
2013-09-20
STATE of Kansas, Appellant, v. Corley M. KANTOR, Appellee.
Appeal from Jefferson District Court; Gary L. Nafziger, Judge. Thomas F. Knutzen, assistant county attorney, Jason W. Belveal, county attorney, and Derek Schmidt, attorney general, for appellant. Michael C, Hayes, of Oskaloosa, for appellee.
Appeal from Jefferson District Court; Gary L. Nafziger, Judge.
Thomas F. Knutzen, assistant county attorney, Jason W. Belveal, county attorney, and Derek Schmidt, attorney general, for appellant. Michael C, Hayes, of Oskaloosa, for appellee.
Before GREEN, P.J., PIERRON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
The State appeals from the district court's suppression of evidence obtained during the stop of a vehicle driven and owned by Corley Kantor. The State argues the initial traffic stop, the extensions of the stop, and the search of the vehicle were all lawful. We affirm.
Kantor was charged with possession of methamphetamine, in violation of K.S.A.2012 Supp. 21–5706, possession of drug paraphernalia, in violation of K.S.A.2012 Supp. 21–5709, no proof of insurance, in violation of K.S.A.2012 Supp. 40–3104, and failure to wear a seat belt, in violation of K.S.A.2012 Supp. 8–2503. Before trial, Kantor filed a motion to suppress the drug evidence. He argued that (1) the trooper's request to search his vehicle was an unlawful extension of the traffic stop because the encounter had not become consensual and the trooper did not have reasonable suspicion that he was engaged in criminal activity; and (2) his incriminating statements were involuntary because the trooper had restricted his freedom by ordering him to stand in the ditch. The district court held an evidentiary hearing on the motion.
At the suppression hearing, Trooper Bryan Clark of the Kansas Highway Patrol testified to the following facts. On the evening of May 19, 2012, Clark was travelling east in his patrol car and reached an intersection. As he turned south, a vehicle travelling north stopped at the intersection. Clark observed that the driver was not wearing a seat belt, and it appeared as though the passenger was not wearing one either. Clark followed the vehicle east and initiated a traffic stop at 8:46 p.m.
Clark contacted the vehicle's occupants—the driver, Kantor, and his passenger, Amberlea Martynowicz—and told them the reason for the stop was that Kantor was not wearing his seat belt. Clark requested Kantor's driver's license and insurance and asked who owned the vehicle. Kantor provided his license and insurance and explained that he had just purchased the vehicle from his adoptive mother, who, according to Martynowicz, lived “right over there.” Clark asked Martynowicz for her identification, but she did not provide any. At Clark's request, Kantor provided the title to the vehicle. Clark was able to verify that Kantor had in fact just purchased the vehicle. Then Kantor said, “She tells me to put my seat belt on all the time, and I, I completely forgot this time”; Martynowicz confirmed this by stating, “I usually tell him.” Clark asked Martynowicz for her name. She said it was Carrisa D. Mills and when Clark asked for the spelling, she responded, “C-a-r-r, or, C-a-r-i-s-s-a, sorry.” Then Clark asked for her birth date and age. It appeared as though she was trying to remember her birth date, and there was a long pause before she provided her age. When Clark asked if she knew her driver's license or social security number, she explained that she was moving and “did not have anything on [her].”
Clark suspected that Martynowicz had provided a false name. Due to Kantor's lack of eye contact, Martynowicz' responses, and the fact that they were both shaking, Clark told Kantor to exit the vehicle. As they stood behind the vehicle, Clark informed Kantor that his insurance was expired. Clark conducted a pat-down search for weapons. When Kantor alerted him to the fact that there might be a razor knife in his pocket, Clark asked him to empty his pockets. Kantor produced the knife, an iPhone, and a screwdriver tip. Clark had Kantor place the knife on the trunk of his vehicle and allowed him to return the other items to his pocket. To check for signs of drug use, Clark subjected Kantor to the horizontal gaze nystagmus test and a counting test. Kantor was instructed to look up and count to 30 in his head, but he looked down after 17 seconds. Clark discontinued his investigation of driving under the influence because he “didn't believe [Kantor] was to the point of being impaired.”
Clark told Kantor to accompany him to his patrol car. As he began the process of issuing Kantor a citation for failure to wear a seat belt, Clark asked Kantor if he knew Martynowicz' name; Kantor said he was unsure because he had just met her that night. Clark stated his belief that she had lied about her name and birth date; Kantor agreed she had sounded nervous. Clark asked again if he knew her name; Kantor said he thought it was Amber. Given Kantor's hat, Clark asked if he was a Royals fan; Kantor said he was a bigger fan of football and the Kansas City Chiefs. At that point, Clark contacted dispatch to check Kantor's driver's license and verify Martynowicz' identity; Kantor's license was valid but there was no record of a Carissa Mills. Clark asked Kantor if Martynowicz had a warrant, and Kantor said he did not know. Trooper Clark told Kantor he was going to cite him for the seat belt violation but not the proof of insurance violation. Kantor asked if he could be notified of Martynowicz' location, should she be arrested, because he might be able to help her. Clark explained that she was probably lying about her name because she had a warrant, and said, “We are going to get to the bottom of it.” Kantor explained that he “care[d] for her” despite having known her for only 1 week. This change in Kantor's story increased Clark's suspicion. After advising Kantor about the perils of not having car insurance, Clark gave Kantor the citation, returned his driver's license and insurance card, and they exited the patrol car.
Clark told Kantor to stand 10 feet in front of his vehicle while he talked to Martynowicz. Clark extended the traffic stop because he was trying to ascertain Martynowicz' true identity. Clark contacted Martynowicz, who was still sitting in the passenger seat of Kantor's vehicle, and asked her why she had lied about her name. She said multiple times that she was scared. Clark asked if she had anything illegal in the vehicle, and she said she did not. Clark told Martynowicz to exit the vehicle and asked again if she had any identification; she insisted that she did not. Martynowicz gestured toward where she had been sitting and said, “That's not my stuff, that's Kim's, I guess.” Clark asked if Martynowicz had anything in her pockets, and she said she did not. After conducting a pat-down search, Clark asked Martynowicz for her name and birth date. This time she said it was Katlyn L. Lewis. Clark contacted dispatch again to verify her identity. At that time, another trooper arrived and stood in front of Clark's patrol car. The rear lights of the other trooper's patrol car were the only lights flashing. Clark asked Martynowicz if she was on probation or parole, and she said “No.” Clark asked again why she lied, and she said she was scared because she did not know Kantor very well. When Clark asked if anything inside the vehicle belonged to her, she replied “No.” Clark told Martynowicz to stand with the other trooper. Dispatch reported there was no record of a Katlyn Lewis.
Clark contacted Kantor, who was standing in a ditch. As he approached him, Clark trained his flashlight on Kantor and said, “Corley, you're not in any trouble, and you're free to go. Do you have anything illegal in the car?” Kantor replied, “Uh, not that I know of.” Clark stopped directly in front of Kantor, blocking his path to his vehicle, and asked, “Can I search it real fast?” Kantor replied, “Yeah.” Clark entered the front passenger side of Kantor's vehicle and searched a blue bag, which had been between Martynowicz' feet at the outset of the traffic stop. He found a digital scale with white residue and a wallet containing a copy of a driver's license. The license bore the name Amberlea Martynowicz and a picture of Martynowicz. Clark relayed the license number to dispatch.
Clark confronted Martynowicz about the driver's license with her picture on it. Martynowicz insisted that her name was Katlyn and the items in the vehicle did not belong to her. Clark arrested her for obstructing official duty and handcuffed her.
Clark reentered the front passenger side of Kantor's vehicle and searched the blue bag more thoroughly. He found a flashlight with a storage compartment containing white powder residue. Dispatch then reported that Martynowicz had an active warrant for possession of hydrocodone. Clark also searched the vehicle and found a red case behind the front passenger seat. At that point, he returned to the patrol car and read Martynowicz her Miranda rights. Martynowicz admitted the blue bag was hers. Next, Clark searched the red case and found a glass pipe, a plastic bag containing white powder residue, and a straw. When Clark asked her how much methamphetamine she had smoked that day, she replied, “Two bowls.” Then Clark informed her that she was under arrest for her warrant, obstructing official duty, and possession of methamphetamine and drug paraphernalia.
Clark contacted Kantor, who was still standing in the ditch, and said, “Corley, you've been straight up with me so far. How much meth have you done today?” Kantor replied, “Uh, a couple hits.” When Clark questioned him about the red case, Kantor said both he and Martynowicz had knowledge of it. Trooper Clark arrested Kantor for possession of methamphetamine and drug paraphernalia at 9:22 p.m. Martynowicz subsequently informed Clark she had been wearing her seat belt with the shoulder strap behind her back. Until that point, Clark had intended to cite her for failure to wear a seat belt. Clark had no concern for his safety during the stop.
After hearing all the evidence, the district court took the matter under advisement and allowed the parties to submit additional authority. Two weeks later, the court granted Kantor's motion to suppress. The court reached two legal conclusions: “[T]he consent to search was not voluntary [because Kantor] was not free to leave” and “based upon ... the nature of the encounter”; and “[Kantor] could not have consented to the search of personal property of [Martynowicz].” The court made two factual findings: Trooper Clark could not have determined whether Martynowicz was wearing a seat belt because it was dusk and the vehicle was perpendicular to his patrol car; and Kantor had not been advised of his right to refuse the search. The court also stated: “[A]s a matter of public policy, the general public should not be subjected to seatbelt searches based upon the, uh, casual observation of a police officer and then required to stand for one hour in a ditch,” and, “[F]or an officer to try to decide based on the reaction of a person to his presence whether ... an offense has taken place, ... in my view, is ... subjective, and I don't believe the Fourth Amendment was created to be enforced upon subjective evaluations.”
The State filed an interlocutory appeal.
First, the State argues the initial traffic stop was lawful because Clark's questions regarding Martynowicz' identity did not measurably extend the stop. The State goes on to argue extension of the stop and search of the vehicle were lawful because Clark had reasonable suspicion that Kantor and Martynowicz were engaged in criminal activity and Kantor's consent was voluntarily given. Kantor counters that the extension of the stop was unlawful because Clark lacked reasonable suspicion that Kantor was engaged in criminal activity when he ordered him to stand in the ditch, and the contact between Clark and Kantor after Martynowicz had been removed from the vehicle was not a consensual encounter. Kantor also asserts his consent was involuntarily given.
An appellate court uses a bifurcated standard when reviewing a district court's ruling on a motion to suppress. The factual underpinnings of the suppression decision are reviewed under a substantial competent evidence standard, and the ultimate legal conclusion drawn from those facts is reviewed de novo. An appellate court does not reweigh evidence. When the facts are undisputed, an appellate court exercises unlimited de novo review of the district court's legal conclusion. State v. Edgar, 296 Kan. 513, 519–20, 294 P.3d 251 (2013); see State v. Murphy, 296 Kan. 490, 492, 293 P.3d 703 (2013) (same standard is used to review a district court's ruling on whether a traffic stop became a voluntary encounter, i.e ., whether a reasonable person would feel free to refuse the requests or to terminate the encounter).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable governmental searches and seizures. A traffic stop is a seizure under the purview of the Fourth Amendment. State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007). Here, there is no dispute about the legality of the initial stop. Clark observed Kantor committing a traffic violation, i.e., driving without a seat belt. See K.S.A. 8–2503; Moore, 283 Kan. at 350 (traffic violation provides requisite reasonable suspicion to effectuate valid stop). Therefore, the issues before this court narrow to whether the traffic stop and its two extensions were constitutional. See State v. Thompson, 284 Kan. 763, 773, 810–12, 166 P.3d 1015 (2007).
Generally, there are four types of police-citizen encounters: (1) voluntary or consensual; (2) investigatory detention or Terry stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and K.S.A. 22–2402(1); (3) public safety stop; and (4) arrest. Thompson, 284 Kan. at 772 (a traffic stop is an investigatory detention). It is well settled that a detention of a motorist may not exceed the scope or duration necessary to carry out the purpose of the traffic stop. 284 Kan. at 774. An officer's questions about matters unrelated to the reason for the traffic stop do not convert the stop into an unlawful seizure so long as they do not measurably extend the duration of the stop. State v. Morlock, 289 Kan. 980, 987–89, 218 P.3d 801 (2009).
Here, Clark requested Kantor's driver's license and insurance. See State v. Coleman, 292 Kan. 813, 816, 257 P.3d 320 (2011) (officer may request driver's license, vehicle registration, and proof of insurance, run computer check, and issue citation). Clark requested Martynowicz' identification. See United States v. Rice, 483 F.3d 1079, 1083–84 (10th Cir.2007) (“[B]ecause passengers present a risk to officer safety equal to the risk presented by the driver, ... an officer may ask for identification from passengers and run background checks on them as well.”). Clark asked Kantor to exit his vehicle, frisked him for weapons, and administered field sobriety tests. See State v. Spagnola, 295 Kan. 1098, 1104–05, 289 P.3d 68 (2012) (officer may ask driver to exit vehicle and investigate possible impairment); K.S .A. 22–2402 (officer may frisk the driver for weapons if necessary for officer's safety). Clark directed Kantor to sit in the front seat of the patrol car. See United States v. Vargas, 57 Fed. Appx. 394, 398–99 (10th Cir.2003) (officer may direct driver to sit in patrol car). Finally, Clark ran a computer check on Martynowicz and questioned Kantor about her identity.
The computer check and questioning did not measurably extend the stop because they occurred while Clark was running a computer check on Kantor and issuing him a citation. See Morlock, 289 Kan. at 992–95 (no measurable extension where officer questioned passenger while waiting for driver to produce vehicle lease agreement). Therefore, Clark conducted a lawful traffic stop from the time he contacted the vehicle's occupants to the time he gave Kantor his driver's license and citation and ordered him to exit the patrol car.
An officer may extend the detention beyond the purpose of the traffic stop if there is an objectively reasonable and articulable suspicion that criminal activity was or is taking place. Coleman, 292 Kan. at 816–17.
“An officer is not required to disregard information which may lead him or her to suspect independent criminal activity during a traffic stop. When ‘the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.’ [Citation omitted.]” Morlock, 289 Kan. at 996.
In analyzing whether a stop is excessive in duration or scope, an appellate court considers whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions in a short period of time. State v. Smith, 286 Kan. 402, 410, 184 P.3d 890 (2008).
Reasonable suspicion is not “an unparticularized suspicion or hunch” but “a particularized and objective basis for suspecting the person stopped is involved in criminal activity.” Kansas appellate courts determine reasonable suspicion by looking at the totality of the circumstances, “defer[ring] to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances” and “remembering that reasonable suspicion represents a ‘minimum level of objective justification’ which is ‘considerably less than proof of wrongdoing by a preponderance of the evidence.’ [Citations omitted.]” Edgar, 296 Kan. at 521.
Here, during the lawful traffic stop, Clark saw Kantor and Martynowicz shaking. See Moore, 283 Kan. at 355 (nervousness alone not does not constitute, but can contribute to, reasonable suspicion). Clark saw Kantor avoiding eye contact. See United States v. Brigham, 382 F.3d 500, 508–09 (5th Cir.2004) (driver's avoidance of eye contact can contribute to reasonable suspicion). Clark heard Martynowicz spell her alleged name, Carissa, incorrectly and then hesitate when providing her birth date. Morlock, 289 Kan. at 997–98 (dubious answers can contribute to reasonable suspicion). Clark learned that Kantor believed Martynowicz' name to be Amber, and there was no record of a Carissa with the birth date Martynowicz had provided. Finally, Clark received inconsistent answers regarding how long Kantor had known Martynowicz—he said he had known her for 1 day and later said 1 week. See 289 Kan. at 997–98 (inconsistent answers can contribute to reasonable suspicion).
These observations amounted to reasonable suspicion that a crime was being committed—interference with law enforcement. See K.S.A.2011 Supp. 21–5904(a)(1)(B) (“Interference with law enforcement is ... [f]alsely reporting to a law enforcement officer ... any information, knowing that such information is false and intending to influence, impede or obstruct such officer's ... duty.”). Clark confirmed his suspicion of criminal activity in about 3 minutes by confronting Martynowicz about her identity. See Morlock, 289 Kan. at 999 (officer was diligent in addressing his suspicions where entire stop took only 12 minutes). Therefore, Clark lawfully extended the traffic stop by ordering Kantor to stand outside the vehicle and proceeding to investigate Martynowicz.
The key to this case is whether Clark sought consent to search Kantor's vehicle during an unlawful extension of the traffic stop or during a consensual encounter. See Thompson, 284 Kan. at 775.
Law enforcement interaction with a driver following a traffic stop may continue if it becomes a consensual encounter. Murphy, 296 Kan. at 492. A voluntary encounter is not a seizure under the purview of the Fourth Amendment. State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010). An encounter is consensual if, under the totality of the circumstances, the officer's conduct would have conveyed to a reasonable person that he or she was free to refuse the request or otherwise terminate the encounter. Murphy, 296 Kan. at 492;Moore, 283 Kan. at 351–52 (encounter not consensual if reasonable person would not feel “free to leave”).
The Kansas Supreme Court has set forth a nonexclusive list of factors to aid in the determination of whether an encounter is consensual or an unlawful extension of the traffic stop. Murphy, 296 Kan. at 493; see Thompson, 284 Kan. at 803–05 (no factor is dispositive and factors are not merely counted). Factors that tend to establish a voluntary encounter include: (1) driver's knowledge of right to refuse; (2) clear communication that driver is free to terminate encounter or refuse to answer questions; (3) return of driver's license or other documents; and (4) physical disengagement before further questioning. Murphy, 296 Kan. at 492–93. And factors that tend to establish an extended seizure include: (1) threatening presence of several officers; (2) display of weapon by officer; (3) physical touching of driver; (4) officer's use of aggressive language or tone; (5) prolonged retention of driver's personal effects like identification; (6) interaction in a nonpublic place; (7) absence of other members of public; (8) request to accompany officer somewhere; (9) display of emergency lights; and (10) attempt to control driver's ability to flee. Murphy, 296 Kan. at 492–93;State v. Moralez, 297 Kan., 300 P.3d 1090(2013).
A consent to search is valid only if there was 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. Spagnola, 295 Kan. at 1107. If a traffic stop was unlawfully extended, the same factors used to determine whether an encounter was voluntary may reasonably apply to whether the consent to search was voluntary. 295 Kan. at 1108.
Here, Clark returned Kantor's driver's license and insurance card before they exited the patrol car. Clark lawfully extended the traffic stop by asking Kantor to stand 10 feet in front of his vehicle during the interference with law enforcement investigation. Clark removed Martynowicz from Kantor's vehicle before approaching Kantor, who was standing alone in a ditch beside a rural road at nighttime. At that point, Clark had no reasonable suspicion of criminal activity as to Kantor. Clark was walking toward and shining his flashlight on Kantor when he told him he was “not in any trouble” and was “free to go.” In the same breath, and without any physical disengagement, Clark asked Kantor if there was “anything illegal in the car” and if he could “search it real fast.” Clark was blocking Kantor's path to his vehicle when he asked these questions. Finally, Clark was not the only officer present and the other officer's emergency lights were flashing.
These factors establish that the encounter was an extension of the seizure and Kantor's consent was involuntarily given. The strongest factor is Clark's complete failure to temporally or physically disengage from Kantor. A reasonable person would not have felt free to disregard Clark's questions, get in his or her car, and drive away. Cf. Murphy, 296 Kan. at 494 (voluntary encounter where officer returned license, told driver he was free to go, physically disengaged, did not display weapon or use aggressive language). And it cannot be said that Kantor's consent was voluntarily given free from coercion. See Spagnola, 295 Kan. at 1108–09 (consent involuntary where driver was standing with his back to two officers with his hands behind his back). Therefore, Kantor involuntarily consented to a search of his vehicle during an unlawful extension of the traffic stop.
We affirm the district court's suppression of the drug evidence as to Kantor. Affirmed. BUKATY, J., dissenting:
I write to respectfully dissent from the majority's conclusions that Kantor's consent to the search of his car was involuntary and the subsequent search was illegal and should be suppressed under the facts of this case.
The majority analyzes the issue here in terms of whether the encounter between Officer Clark and Kantor when Clark requested consent to search occurred during an unlawful extension of the traffic stop or was the encounter consensual. I will concede that the encounter at that time was not consensual since a reasonable person under similar circumstances would not have felt free to disregard the officer's questions and leave. The majority appears to find this significant. However, I do not believe it renders the consent here involuntary because Clark requested the consent during a lawful extension of the search. Whether Kantor was free to go or not at the time of the consent is immaterial.
The majority concludes the original traffic stop was lawful and Officer Clark's questions regarding Martynowicz' identity did not measurably extend the stop. It further concludes that Clark lawfully extended the traffic stop when he ordered Kantor to stand outside the vehicle and then proceeded to investigate Martynowicz. I agree on both points. However, I disagree with the majority's conclusion that when Clark later returned to Kantor and requested his consent, Clark no longer had a reasonable suspicion of criminal activity on Kantor's part. I would conclude that when Clark requested Kantor's consent to search the vehicle, Clark had a reasonable suspicion that Kantor and his passenger were engaged in interference with law enforcement, a crime in violation of a part or parts of K.S.A.2011 21–5904, and that evidence as to the passenger's true identity could possibly be found within the bags or elsewhere inside the vehicle. At that time, Clark still had not determined the real name of the passenger. And, while it was the passenger who had obviously lied about her name, Kantor had played a part in the charade by giving inconsistent and seemingly contradictory statements as to how long he had known her. Also, he was visibly shaking and nervous at the time he gave the responses. Ample reason existed to believe that Kantor was knowingly involved in the interference with the officer's duties.
I acknowledge that even if the stop had been legally extended because Officer Clark had reasonable suspicion of criminal activity at the time he requested the consent, that consent would, nevertheless, be invalid if it was involuntary or coerced. “Whether a consent was freely given is determined by the totality of the circumstances. [Citations omitted.] State v. Spagnola 295 Kan. 1098, 1107, 289 P.3d 68 (2012).
The district court appears to have primarily based its ruling that the consent was involuntary on its conclusion that Kantor was not free to go at the time he gave it, he was not advised of his right to refuse consent, and any consent should have been in writing. The court also mentioned its finding that Clark had no right to ask for the consent to search in the first place. The court made no factual findings that there was any other specific coercive conduct by the officers that rendered the consent involuntary.
As I stated, I view the fact Kantor was not free to go as irrelevant to the analysis here since Kantor was being lawfully detained at the time due to reasonable suspicion of criminal activity. One can give voluntary consent to search even if he or she is being legally detained and is not free to go. See State v. Moore, 283 Kan. 344, 360, 154 P.3d 1 (2007). As to lack of advice to refuse consent, while that may be one factor in the totality of the circumstances, it is not required before a consent is deemed voluntary. State v. Thompson, 284 Kan. 763, 783, 166 P.3d 1015 (2007). As to the consent not being in writing, the district court acknowledged the law did not require such.
In my view, the record here lacks any evidence of a show of force, show of weapons, use of aggressive language and tone, or any more subtle attempts at coercion by Officer Clark or the other officer on the scene who appeared to take only a minor role in the encounter. I do not believe the totality of the circumstances here indicates any coercion on the part of the officers which would render the consent involuntary. I would reverse the suppression of the search.