Opinion
112,173.
07-17-2015
STATE of Kansas, Appellee, v. Michael Jonathan STADLER, Appellant.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Skip Jacobs, legal intern, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant district attorney, Skip Jacobs, legal intern, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Michael Jonathan Stadler appeals the denial of his motion to suppress alleging Officer Justin Mackey of the Topeka Police Department lacked reasonable suspicion of criminal activity and the resulting traffic stop was illegal. That stop resulted in the discovery of marijuana and drug paraphernalia. The district court found the officer's reason for the stop was reasonable and denied Stadler's motion to suppress. As explained below, we affirm.
Facts
On March 6, 2014, Stadler was convicted of one count of possession of hallucinogenic drugs, specifically marijuana, following a bench trial based upon the following stipulated facts:
“1. In the early morning hours of June 24, 2013, Topeka Police Officer Justin Mackey was on duty and patrolling in the area of Gage Park, Topeka, Shawnee County, Kansas.
“2. Gage Park closes each night at 11:00 pm.
“3. At approximately 1:30 am Officer Mackey observed a red passenger car traveling through the Park.
“4. Believing the red vehicle to be trespassing in Gage Park after hours, Officer Mackey pulled the car over and identified the driver as the defendant, Michael Stadler. Mackey requested Stadler's driver's license, proof of registration and proof of insurance. “5. In an attempt to locate his insurance, Stadler moved to open the car's glove box. At this time, Officer Mackey began to detect a strong odor of un-burnt marijuana coming from Stadler's vehicle.
“6. Stadler and his passenger were asked to exit the vehicle and sit on the curb. Officer Mackey and a back up officer, Topeka Police Officer Clinton Eubanks, then conducted a search of that vehicle.
“7. Topeka Police Officer, Jeffrey Sloan, was also assisting as backup. He was standing near the curb where Stadler was sitting during the vehicle search and heard Stadler volunteer that there was marijuana and brass knuckles in the center console.
“8. During the search of Stadler's vehicle, Officer Mackey searched the center console and located: two clear plastic bags each containing a green leafy substance that Mackey believed to be marijuana, two glass pipes, two small glass jars with what appeared to be marijuana residue inside, a set of brass knuckles, and a piece of aluminum can with an unknown burnt residue on it.
“9. Standing a few feet away from Stadler, Officers Mackey and Eubanks looked at the aluminum can in an attempt to determine what the residue consisted of. At that time Stadler volunteered to the officers that he would glob resin on the can and then use it to smoke marijuana residue.
“10. Officer Mackey placed all of the items taken from Stadler's vehicle into evidence with the Topeka Police Department under the TPD case number 13719–13. The two clear bags of suspected marijuana were sealed and identified with evidence numbers JM01 and JM02. Both JM[0]1 and JM02 were sent to the KBI for laboratory testing.
“11. Following all standard protocols, Brad Crow, a forensic scientist for KBI, conducted an analysis of the substance found inside JM[0]1 and detected Marijuana. Crow also conducted an analysis of the substance found inside JM02 and detected Marijuana.
“12. Subsequent to this case being filed, Stadler filed a Motion to Suppress arguing that the stop of his vehicle in the park was illegal, and, as a result of the illegal stop, any evidence taken from his vehicle on June 24, 2013, should be suppressed as fruits of the poisonous tree.
“13. Following a hearing on the defendant's Motion to Suppress, the court denied the motion and found that the evidence obtained from the vehicle was admissible.
“14. In this bench trial on stipulated facts, in order to preserve his appeal of the Court's decision on the Motion to Suppress, Stadler continues his objection to the admission of any evidence taken from his vehicle on June 24, 2013.
“15. Defendant has previously been convicted of Poss[ession] of Marijuana.”
At sentencing, the district court determined Stadler's criminal history score was D. Stadler was sentenced to a term of 24 months' imprisonment, subject to 12 months' postrelease supervision, but the district court granted Stadler 12 months' supervised probation.
Analysis
Was the district court denial of Stadler's motion to suppress correct?
As the stipulations reflect, Stadler filed a motion to suppress, alleging Officer Mackey did not have reasonable and articulable suspicion to believe criminal activity had occurred, was occurring, or was about to occur and, thus, because the traffic stop was illegal, all evidence obtained from the stop should be suppressed as fruit of the poisonous tree. Stadler insisted Officer Mackey's belief that he could stop a vehicle on a public roadway within Gage Park because the park was closed was insufficient to provide Officer Mackey with the requisite reasonable suspicion.
At the subsequently held hearing on Stadler's motion to suppress, Officer Mackey testified that while he was patrolling through Gage Park at approximately 1:30 a.m., he noticed headlights from a vehicle traveling “just north of the railroad tunnel going towards 6th Street.” Because Gage Park closes at 11 p.m., Officer Mackey effectuated a traffic stop of the vehicle, as, “[f]rom [his] training, ... if you're inside the park after city hours, it constitutes trespassing.” Officer Mackey acknowledged, however, there are not “any gates that come down to block folks from entering into the park” after hours and the roadways within the park remain illuminated by “standard lighting ... for street[s] of that type.”
After considering the parties' arguments, the district court denied Stadler's motion. The district court found that regardless of whether Stadler was actually trespassing, Officer Mackey's reasonable belief Stadler's presence in Gage Park after hours constituted a trespass justified the traffic stop. The district court judge explained:
“[Stadler's] concern had to do with the stop of a vehicle on a public roadway, and there was no—nothing to reflect that [he] had violated anything, that the stop itself was either inappropriate, illegal, and there's an argument about the roadway that the public roadway versus the time of day, the closure of the park and all that. The testimony by [Officer Mackey] was that the park was closed. That is what he said drew his attention to the headlights when he saw them in the park, and that's why he drove over there. That his belief was that [Stadler] was trespassing. I realize, just from my own familiarity with Gage Park, that there are no gates, but [Officer Mackey's] testimony was that the park closed at 11:00. This was a couple of hours beyond that. And if he is, indeed, trespassing or if [Officer Mackey] had a reasonable belief that [Stadler] was trespassing, [Officer Mackey] certainly had the authority and the ability to stop this vehicle.”
Stadler contends the district court erred when it denied his motion to suppress because despite its finding to the contrary, Officer Mackey did not articulate an objectively reasonable suspicion to justify the traffic stop. In particular, Stadler claims Officer Mackey's testimony regarding his purported belief that an individual's presence in Gage Park after closing constitutes a trespass was insufficient to validate the stop because the State failed to present any evidence that he was actually engaged in a criminal act. Stadler explains: “The State presented no evidence that [he] was not merely passing through the park on a public roadway. Furthermore, the State presented no evidence that the park is gated or physically closed off to the public after 11:00 p.m.”
When the material facts to a district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court exercises unlimited review. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014). Here, the facts are not in dispute and our review is unlimited. Following the denial of 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. Bogguess, 293 Kan. 743, 746, 268 P.3d 481 (2012). In a bench trial consisting solely of stipulated facts, however, the lack of a contemporaneous objection does not prevent review of the suppression issue. Bogguess, 293 Kan. at 746–47. Here, both parties acknowledged in the stipulation of facts that Stadler was preserving his objection to the denial of his suppression motion. Thus, Stadler has properly preserved this issue for appeal.
Unreasonable searches and seizures are prohibited by the Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and § 15 of the Kansas Constitution Bill of Rights. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The exclusionary rule, a judicially created remedy, operates to protect Fourth Amendment rights through deterrence by preventing the use of unconstitutionally obtained evidence against the subject of the illegal search/seizure. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S.Ct. 2114 (2011).
A traffic stop is considered an investigatory detention, which always constitutes “a seizure of the driver ‘even though the purpose of the stop is limited and the resulting detention quite brief.’ [Citations omitted.]” Thompson, 284 Kan. at 773. In Kansas, law enforcement's authority to stop a moving vehicle stems from K.S.A. 22–2402(1), which embodies the investigatory detention principles articulated by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Hamic, 35 Kan.App.2d 202, 205, 129 P.3d 114 (2006). Accordingly, in order to lawfully stop a moving vehicle, “the officer must know of specific and articulable facts that create a reasonable suspicion the seized individual is committing, has committed, or is about to commit a crime or traffic infraction. [Citation omitted.]” State v. Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014).
Our Supreme Court has defined “reasonable and articulable suspicion” as “a minimum level of objective justification which is considerably less than proof of wrongdoing by a preponderance of the evidence.” State v. Moore, 283 Kan. 344, Syl. ¶¶ 7, 8, 154 P.3d 1 (2007). When reviewing an officer's belief of reasonable suspicion, appellate courts must determine whether the detention is justified by the totality of the circumstances with “deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances.... However, the officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.” 283 Kan. 344, Syl. ¶ 8.
As the State asserts, the question in this case is not whether Stadler had committed or was committing a criminal trespass, under K .S.A.2012 Supp. 21–5808, by driving through Gage Park after hours; to the contrary, the inquiry is whether it was reasonable for Officer Mackey to suspect that Stadler's conduct was illegal at the time of the traffic stop. Although an officer's reasonable suspicion may be premised upon a reasonable mistake about the underlying facts, our Supreme Court has held that an officer's mistake of law or misunderstanding of the scope of a legal prohibition negates the existence of reasonable suspicion and can alone render a traffic stop illegal. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 638–39, 176 P.3d 938 (2008). However, the United States Supreme Court recently determined that “reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion.” Heien, 135 S.Ct. 530, 536–40.
In Heien, Sergeant Matt Darisse effectuated a traffic stop of Nicholas Brady driving Heien's vehicle because, while following the vehicle due to his belief that the driver appeared “ ‘very stiff and nervous,’ “ he noticed that the vehicle had one faulty brake light. During the course of issuing a warning ticket, Sergeant Darisse became suspicious of the behaviors of Heien and the driver of his vehicle. Sergeant Darisse obtained Heien's consent to search the vehicle. During the vehicle search, Sergeant Darisse found a sandwich bag containing cocaine. The State of North Carolina subsequently charged Heien with attempted trafficking in cocaine. Heien moved to suppress the evidence seized from the car as the fruit of an illegal traffic stop, but, ultimately, the North Carolina Supreme Court affirmed the district court's denial of his motion.
After granting certiorari to determine whether reasonable suspicion can rest on a mistaken understanding of the scope of a legal prohibition, the United States Supreme Court held that because the “ ‘the ultimate touchstone of the Fourth Amendment is “reasonableness,’ “ [citation omitted,]” the Fourth Amendment tolerates objectively reasonable mistakes of both fact and law. 135 S.Ct. at 536. The Court explained:
“To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community's protection.’ [Citation omitted.] ... The limit is that ‘the mistakes must be those of reasonable men.’ [Citation omitted.]” 135 S.Ct. at 536.
The Court noted, however, that “an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce” because “[t]he Fourth Amendment tolerates only reasonable mistakes, and those mistakes—whether of fact or of law—must be objectively reasonable. We do not examine the subjective understanding of the particular officer involved. [Citation omitted.]” 135 S.Ct. at 539–40.
The Court then found that Sergeant Darisse's error of law was reasonable. 135 S.Ct. at 540. While North Carolina's statute suggested the need for only a single working brake light, the Court noted that it also provided that the “ ‘stop lamp may be incorporated into a unit with one or more other rear lamps,’ [citation omitted,]” which would suggest to a reasonable person that a “ ‘stop lamp’ is a type of ‘rear lamp.’ “ 135 S.Ct. at 540. Additionally, the Court pointed out that another subsection of the same provision arguably indicated that vehicles with multiple stop lamps must ensure that all lamps are functional, as it required vehicles to “ ‘have all originally equipped rear lamps or the equivalent in good working order.’ [Citation omitted.]” Finally, the Court explained that North Carolina's appellate courts had never previously construed the “ ‘stop lamp’ provision” at issue. 135 S.Ct. at 540.
Here, whether Stadler's actions of being in Gage Park was or was not criminal trespass was never determined by the district court. If Officer Mackey was mistaken in his belief that Stadler's presence in Gage Park after hours constituted a criminal trespass, then the question becomes: Was it objectively reasonable for a law enforcement officer to believe he had the authority to initiate the stop and inform Stadler he was not authorized to be in Gage Park after hours and to leave the park?
Officer Mackey testified Gage Park closes at 11 p.m. Based on his training and experience, an individual's presence in the park at 1:30 a.m. constitutes a trespass. Based on the totality of the circumstances, it was objectively reasonable for Officer Mackey to stop Stadler and inform him to leave the park. Thus, even if Officer Mackey was mistaken about the law of trespass, the traffic stop did not violate Stadler's rights under the Fourth Amendment or § 15 of the Kansas Constitution Bill of Rights.
Accordingly, considering the totality of the circumstances, the district judge did not err when he denied Stadler's motion to suppress.
We apply Apprendi.
Stadler next argues the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution when it used his prior convictions to enhance his sentence without proving those convictions to a jury beyond a reasonable doubt, contrary to the United States Supreme Court's guidance in Apprendi v. New Jersey, 530 U.S. 466, 477, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Stadler recognizes the Kansas Supreme Court rejected this argument in State v. Ivory, 273 Kan. 44, 45–48, 41 P.3d 781 (2002), but includes the issue to preserve it for federal review. Because there is no indication the Kansas Supreme Court is departing from this position, this court is duty bound to follow established precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The district court properly used Stadler's criminal history to establish his sentence.
Conclusion
Given recent guidance by the United States Supreme Court in Heien, the district court did not err in denying Stadler's motion to suppress. Even if Officer Mackey was mistaken about the law, the traffic stop did not result in an illegal stop in violation of the Fourth Amendment to the United States Constitution or § 15 of the Kansas Constitution Bill of Rights. The district court and this court are duty bound to follow Kansas Supreme Court precedent, and the use of Stadler's prior criminal history did not violate Apprendi. We affirm the denial of Stadler's motion to suppress and the district court's use of Stadler's criminal history to determine his sentence.
Affirmed.