Opinion
110,653.
12-24-2014
STATE of Kansas, Appellee, v. Ozell POUNCIL, Jr., Appellant.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., BUSER and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ozell Pouncil, Jr., was convicted of seven drug-related offenses based on stipulated facts presented at a bench trial. Pouncil appeals the district court's denial of his motion to suppress all of the evidence obtained through a warrantless search of his vehicle just after he left Walmart. Our analysis reflects the officers had probable cause plus exigent circumstances to justify the warrantless search of Pouncil's vehicle. We affirm the district court's denial of Pouncil's motion to suppress the evidence found in his vehicle.
Facts
Noble Dobkins, an asset protection associate at the Parsons Walmart store, called the Parsons Police Department. Dobkins reported two men who had just purchased methamphetamine precursors. Through his Walmart training, Dobkins was aware of the items used in the manufacturing of methamphetamine. Dobkins told the Parsons dispatcher, Kyle Helm:
“Yeah, I was just wanting to kind of give you guys an alert basically. There is this—well, there is these two males that is in our parking lot right now but they have made three trips inside the building already. Both of them bought Sudafed or Ephedrine [sic ] ... and then they also bought like camp fuel and a lawn and garden sprayer but I didn't know if you guys did anything. I got a license plate number and a description of the vehicle but it looks like they are heading out now just to leave. So is that something I would tell you guys about....”
Dobkins reported watching the two males go outside and get into a brown Toyota Camry and identified the vehicle tag. Dispatch notified officers to be on the lookout for the vehicle and the general direction the vehicle was headed.
Parsons Police Officer Teresa Pilkington conducted a traffic stop on the brown Toyota Camry for making a turn into the outside lane. During the traffic stop, Pilkington identified the driver as Pouncil. Corporal Brian Harlow arrived at the scene and approached the passenger side of the vehicle where he made contact with Stephen Wayne Williams who was in the front passenger seat of the vehicle. Harlow's main purpose in speaking with Williams was to investigate the information supplied to dispatch from Dobkins. Harlow observed a Walmart sack in the back seat of the vehicle. After asking for identification from Williams, Harlow attempted to converse with Williams; however, when Harlow asked Williams a question, Pouncil would answer. Williams would not answer Harlow's questions and continually stared forward. Harlow asked Williams what they were doing in Parsons, and Pouncil stated they were visiting or trying to locate a Reggie Green; however, Pouncil did not know where Green lived or how he could be located. When Harlow asked what they had done after looking for Green, Pouncil stated they had been to Walmart. When Harlow asked what they had purchased at Walmart, Pouncil replied they had just walked around wasting time.
After talking with Williams and Pouncil, Harlow contacted the Independence Police Department to see if they had any prior contact with Pouncil or Williams, while Pilkington continued with issuing a ticket for the traffic offense. Harlow was informed both Pouncil and Williams had drug-related offenses. Harlow contacted dispatch to run a separate criminal history to verify the information. Harlow received verification both Pouncil and Williams had a drug-related criminal history.
Harlow requested a canine officer come to the scene because he believed there were illegal narcotics in the vehicle. In his sworn affidavit of probable cause, Harlow listed the following reasons he felt gave him probable cause to extend the traffic stop detention so a canine investigatory search could be performed:
“1. Buying of Pseudoephrine and Coleman Fuel at Wal–Mart
“2. Turning off to McDonald's when followed by a police vehicle
“3. Visiting ‘Reggie Green’, but know nothing about him or contact information
“4. Lying getting meth making items at Wal–Mart (denying buying anything)
“5. Passenger lack of eye contact, straight forward looking,
“6. Driver providing all conversation, answers questions when not addressed [to him]
“7. Being from Independence (Montgomery County), KS buying products in Parsons.
“8. Known to the Independence Police Department for drug history
“9. Past Criminal History of Methamphetamine and Marijuana.”
After issuing the traffic ticket, Harlow and a third officer, Officer Sherri McGuire, asked Pouncil and Williams to exit the vehicle and proceeded to question them separately until the canine drug unit arrived. After the traffic citation was given to Pouncil, it took approximately 12 minutes for the canine drug unit to arrive. The dog was run around the vehicle and alerted to the rear passenger door and the inside center console of the vehicle. The vehicle was searched and drug paraphernalia, pseudoephedrine, lithium batteries, and other items used in the production of methamphetamine were found.
Pouncil filed a pretrial motion to suppress all of the evidence obtained during the warrantless search of his vehicle. The district court denied the motion to suppress. The district court also denied Pouncil's motion to reconsider. Pouncil waived his right to a jury trial and agreed to a bench trial based on stipulated facts agreed to by the State and defense counsel. In the stipulated facts, Pouncil renewed his objection to the evidence obtained through the warrantless search of his vehicle.
The district court found Pouncil guilty of attempted manufacture of methamphetamine, conspiracy to manufacture methamphetamine, possession of pseudoephedrine and lithium metal with the intent to manufacture a controlled substance, possession of methamphetamine, possession/use of drug paraphernalia, possession of marijuana, and misdemeanor possession of drug paraphernalia. Pouncil timely appealed.
Analysis
Pouncil challenges the district court's denial of his motion to suppress the warrantless search of his vehicle. Pouncil asserts the officers unnecessarily prolonged the stop to allow the canine drug unit to arrive. Thus, the additional time was an unreasonable extension of the stop and his motion to suppress should have been granted, resulting in his convictions being reversed.
Standard of Review
In reviewing a district court's denial of a defendant's suppression motion, appellate courts review the underlying factual findings using a substantial competent evidence standard and the ultimate legal conclusion drawn from those findings under a de novo standard. The appellate courts do not reweigh the evidence or reassess the credibility of the witnesses. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). Substantial evidence refers to legal and relevant evidence a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
“[T]his de novo appellate determination of whether an officer had a reasonable suspicion of illegal activity rests on the same standard as the one that applies when a district judge makes the same determination: Any court making a reasonable suspicion determination must be able to find by a preponderance of the evidence that the State has presented ‘at least a minimal level of objective justification’ which, when examined under the totality of the circumstances, justifies a reasonable suspicion of the presence of illegal drugs or of some other serious criminal activity.” State v. Jones, 300 Kan. ––––, 333 P.3d 886, 895–96 (2014) (quoting State v. Coleman, 292 Kan. 813, 817–18, 257 P.3d 320 [2011].)
When the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. State v. McCaslin, 291 Kan. 697, 726, 245 P.3d 1030 (2011). However, in a bench trial consisting solely of stipulated facts, the lack of contemporaneous objection does not prevent review of the suppression issue. See State v. Kelly, 295 Kan. 587, 590–94, 285 P.3d 1026 (2012) ; State v. Bogguess, 293 Kan. 743, 746–47, 268 P.3d 481 (2012). A defendant who is tried solely on stipulated facts and timely interposes an objection to the admission of evidence by filing a motion under K.S.A. 22–3216(3) to suppress evidence satisfies the requirements of K.S.A. 60–404, even if an objection to the evidence is not stated at trial. Kelly, 295 Kan. at 594. However, Pouncil preserved his objection to the evidence obtained from the warrantless search by raising it as part of the stipulated facts presented to the district court.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights assures each person's right to be secure in his or her person and property against unreasonable searches and seizures. “The question of whether there is a seizure arises in the context of one of four types of encounters with law enforcement officers: consensual encounters, which are not considered seizures; investigatory detentions pursuant to Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and K.S.A. 22–2402 ; public safety stops; and arrests.” State v. Thompson, 284 Kan. 763, Syl. ¶ 4, 166 P.3d 1015 (2007). Any warrantless search is per se unreasonable unless it falls within one of the recognized exceptions to the search warrant requirement in Kansas. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). Under the Fourth Amendment, Kansas has recognized several exceptions to the search warrant requirement, one of which is probable cause plus exigent circumstances. State v. Sanchez–Laredo, 294 Kan. 50, Syl. ¶ 4,272 P.3d 34 (2012) (the mobility of the vehicle provides the exigent circumstances without the necessity of proving anything more). The State has the burden of proving a search and seizure was lawful. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
“While a traffic infraction is a legitimate basis for law enforcement to initiate a vehicle stop, the United States Supreme Court has emphasized that the seizure must be of short duration if it occurs “ ‘in situations where” ... the stop is justified by suspicion (reasonably grounded, but short of probable cause) that criminal activity is afoot.’ Arizona v. Johnson, 555 U.S. 323, 330, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (quoting Terry, 392 U.S. at 24 ).” Jones, 300 Kan. at ––––, 333 P.3d at 894.
“During a routine traffic stop, a law enforcement officer may request a driver's license, proof of insurance, and vehicle registration; run a computer check; and issue a citation. United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997). As a general principle, the driver must be allowed to leave without further delay once the officer determines that the driver has a valid license and is entitled to operate the vehicle. United States v. Wood, 106 F .3d 942, 945 (10th Cir.1997) ; State v. Anderson, 281 Kan. 896, 902, 136 P.3d 406 (2006).” Coleman, 292 Kan. at 816.
An officer's inquiries or actions unrelated to the justification for the initial traffic stop do not convert the stop into an unlawful seizure so long as they do not measurably extend or prolong the stop. Arizona v. Johnson, 555 U.S. 320, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ; Jones, 300 Kan. at ––––, 333 P.3d at 894–95.
“In the absence of consent, an officer may expand the duration of the investigative detention beyond an initial stop when the responses of a detainee and the circumstances relating to the stop give rise to suspicions unrelated to the traffic offense. The officer may then satisfy those suspicions, graduating the police response to the demands of the situation. [Citations omitted.] Further, an officer may expand the investigative detention beyond the purpose of the initial stop only if there is an objectively reasonable and articulable suspicion that criminal activity was or is taking place. [Citations omitted.]” Coleman, 292 Kan. at 816–17.
The officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of possible criminal activity. Jones, 300 Kan. at ––––, 333 P.3d at 895. “If no information raising a reasonable and articulable suspicion of illegal activity is found during the time period necessary to perform the computer check and other tasks incident to a traffic stop, the motorist must be allowed to leave without further delay.” Thompson, 284 Kan. at 774. In order to find the officer had reasonable suspicion to extend the detainment, the district court “must be able to find by a preponderance of the evidence that the State has presented ‘at least a minimal level of objective justification’ which, when examined under the totality of the circumstances, justifies a reasonable suspicion of the presence of illegal drugs or of some other serious criminal activity.” Jones, 300 Kan. at ––––, 333 P.3d at 896.
“The reviewing court does not ‘pigeonhole’ each factor as to innocent or suspicious appearances, but instead determines whether the totality of the circumstances justifies the detention. [Citation omitted.] The relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but whether a sufficient degree of suspicion attaches to particular types of noncriminal acts. [Citation omitted.] The totality of the circumstances standard precludes a ‘divide-and-conquer analysis' under which factors that are ‘readily susceptible to an innocent explanation [are] entitled to “no weight .’ “ [Citation omitted.] In considering the totality of the circumstances, a reviewing court should employ common sense and the ordinary human experience and should accord reasonable deference to a law enforcement officer's ability to distinguish between innocent and suspicious actions. [Citations omitted.]” Coleman, 292 Kan. at 817–18.
While an appellate court cannot conduct factfinding, it can conduct a de novo review. Our “de novo review can only be based on factual findings made by the district judge. An appellate court cannot resolve disputed facts.” Jones, 300 Kan. at ––––, 333 P.3d at 896.
On appeal, Pouncil is not challenging the initial traffic violation; rather, Pouncil is challenging his continued detainment after the ticket was issued while the officers waited for the canine drug unit. Pouncil argues the officers improperly detained him for longer than necessary to affect the purpose of the stop. Thus, the subsequent search violated his rights under the Fourth Amendment and all evidence discovered in the subsequent search should have been suppressed. The State argues reasonable suspicion supported the continued detention for the brief period of time it took the canine drug unit to arrive and thus the district court properly denied Pouncil's motion to suppress the evidence. Because Pouncil does not challenge the traffic stop, we proceed to consider Pouncil's challenge to the warrantless search of his vehicle and request to suppress all evidence found in his vehicle.
As we consider both the State's and Pouncil's arguments, we look not at what they each argue, but at whether the facts found by the district court reflect that the warrantless search of the vehicle was justified by the recognized exception of probable cause plus exigent circumstances. Here, the record reflects that Pilkington and Harlow learned just prior to and during the traffic stop the following facts:
• A tip from a known informant about drug precursor purchases by Pouncil and Williams at Walmart;
• Pouncil and Williams purchased Sudafed or pseudoephedrine and camping fuel at Walmart;
• Turning off to McDonald's when followed by a police vehicle;
• Pouncil and Williams were in town to visit “Reggie Green,” but they were unaware of where he lived or how to contact him;
• Pouncil lied about purchasing items at Walmart (denying buying anything);
• Williams' lack of eye contact, straight forward looking;
• Pouncil provided answers to questions when the questions were addressed to Williams;
• Pouncil and Williams were from Independence; and
• The Independence Police Department was aware of Pouncil's and Williams' criminal history involving drugs.
The district court found that throughout the stop incriminating evidence continued to build creating reasonable suspicion to extend the stop to investigate whether a crime was being committed. The district court found the delay was not unreasonable given the totality of the circumstances. In evaluating the totality of the circumstances the appellate court should employ common sense and ordinary human experience. Jones, 300 Kan. at ––––, 333 P.3d at 898. In this case, Harlow developed specific articulable facts which, when viewed under the totality of the circumstances, provided Harlow with probable cause a crime was being committed to form the basis of searching the vehicle without a warrant before the canine drug unit arrived.
Similar to Coleman's facts, Harlow was working off a known informant's tip indicating the men had purchased methamphetamine precursors at Walmart. When questioned by Harlow, Pouncil denied purchasing anything at Walmart. Harlow could see a Walmart bag in plain sight in the back seat of the car and knew from the known informant drug precursor items had been purchased. Thus, Harlow knew Pouncil was lying to him. While the purchase of Sudafed, pseudoephedrine, or other items is not illegal in and of itself, the denial of its purchase converts it and the other items into reasonable suspicious contraband and potential evidence of criminal activity. Had Pouncil said nothing or said that he purchased something but then did not describe it, there would have been no basis for the officer to question his response. If the purchases were for legitimate purposes, Pouncil has no reason to lie about what he had bought. Once he lied to Harlow, the known purchases became contraband and provided Harlow with one more circumstance to support probable cause a crime was being committed to justify the search of Pouncil's car without a search warrant. Thus, armed with this information, Harlow could proceed to search the car for the purchases of Sudafed, pseudoephedrine, and the other precursor items from Walmart, which reasonably led to the discovery of the other drugs in the car.
When an individual is questioned and lies about a material fact, it has been found to be one more point to consider in determining probable cause to search a vehicle. See United States v. Wilson, 699 F.3d 235, 246 (2d Cir.2012) ; United States v. Dessesaure, 429 F.3d 359, 368–69 (1st Cir.2005) ; United States v. Pinela–Hernandez, 262 F.3d 974, 978 (9th Cir.2001) ; United States v. Howard, 991 F.2d 195, 202 (5th Cir.1993). Additionally, Pouncil's reason for being in Parsons made no sense to Harlow; Harlow observed Williams would not make eye contact with him; Pouncil answered questions addressed to Williams; and both Pouncil and Williams had criminal histories which included drug charges.
Probable cause has been discussed by our Supreme Court when it said:
“ ‘Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. Probable cause exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.’
“ ‘When determining whether probable cause exists, an appellate court considers the totality of the circumstances, including all of the information in the officer's possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt.’ “ State v. Ramirez, 278 Kan. 402, 406, 100 P.3d 94 (2004) (quoting State v. Abbott, 277 Kan. 161, Syl. ¶¶ 2–3, 83 P.3d 794 [2004] ).
Given the totality of the circumstances, Harlow had probable cause to believe a crime was being committed (possession of methamphetamine precursors) and could have proceeded with the warrantless search of the vehicle absent the canine drug unit. Given this determination, we deem it unnecessary to address the delay involving the canine drug unit's arrival since probable cause plus exigent circumstances existed to search the car without the help of the canine drug unit.
Conclusion
Based on the totality of the circumstances, Harlow's investigation revealed probable cause plus exigent circumstances to believe a crime was being committed to proceed with the warrantless search of the vehicle without the help from the canine drug unit. We affirm the district court's denial of Pouncil's motion to suppress all of the evidence obtained from the warrantless search of his vehicle.
Affirmed.