Opinion
No. 106,239.
2012-11-2
STATE of Kansas, Appellee, v. Lisa C. WILLIAMS, Appellant.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; John J. Kisner, Jr., Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The question in this appeal is whether the trial court improperly denied Lisa C. Williams' motion to suppress evidence. The police stopped Williams for a traffic violation shortly after she left the home of a suspected drug dealer. Williams contends that once the police had issued her a traffic ticket, the police had no reasonable suspicion to continue her detention. We agree. Accordingly, we reverse the trial court's denial of Williams' motion to suppress evidence.
One evening in October 2009, Wichita Police Officers Ryan Schomaker and John Groh surveilled a home on South Mission Road in Wichita, Kansas. The officers believed that Jeff True lived in and dealt methamphetamines from the home.
True and the home both had notoriety. During the past 7 years, police had stopped at least 30 people seen leaving one of True's homes and at least 10 of those people possessed methamphetamines or drug paraphernalia and were arrested. Three of the arrests occurred outside the South Mission home, and one of those arrestees even told police that she had bought methamphetamines from True. The police also had executed a search warrant on the home within the past year and found methamphetamines.
About 5 minutes after the two officers began their surveillance, two women left the home and drove away in a Jeep with a license plate that read “BUCKOFF.” Schomaker recognized the Jeep and believed it belonged to Robin Buckley. The police suspected that Buckley was involved in the local methamphetamine culture. Schomaker and Groh followed the Jeep and stopped it at 11:07 p.m. after the driver failed to activate her turn signal at least 100 feet before making a right turn.
Schomaker approached the driver Williams, and Groh approached the passenger Buckley. Williams provided Schomaker with her driver's license upon his request. Williams seemed nervous. She was also slightly shaking, which Schomaker thought to be unusual.
As he walked back to his police car, Schomaker called the K–9 unit because Williams was nervous and had just left the home of a suspected drug dealer. Schomaker made the call within 3 minutes after the stop. He then ran a check on Williams' license, which was in proper order. Schomaker then filled out the citation for the turn signal violation, returned to the Jeep, and asked Williams to step out of the vehicle. The two walked to the back of the Jeep. Schomaker explained the citation to Williams, and he told her to have a nice day and that she could leave. But before Williams could return to the Jeep, Schomaker asked her if she would answer some additional questions.
When Williams walked back to the police car, Schomaker asked her if she had anything illegal in the Jeep, and she said no. Schomaker then asked for permission to search the Jeep, and Williams replied that she could not give him permission because she did not own the vehicle.
Meanwhile, Groh was searching Buckley's purse, which prompted Schomaker to ask Williams if she had anything illegal in her purse. She said she had a scale in her purse because she used drugs. Schomaker took the purse and set it aside. The dog from the K–9 unit sniffed the Jeep and indicated that illicit drugs were located inside the Jeep.
Schomaker arrested Williams, and a female officer performed a pat-down search of Williams, finding methamphetamines on her person. After police gave Williams a Miranda warning, she admitted to possessing the methamphetamines and stated that she took the drugs from Buckley so Buckley would not go to jail. At some point, Schomaker searched Williams' purse and found the scale and a substance which, he believed, could be used to mix with drugs.
The State filed a two-count complaint against Williams: possession of a controlled substance and nonpayment of a drug-tax stamp. Williams moved to suppress the evidence retrieved from the search.
Although Schomaker stated that he told Williams to have a nice day and that she was free to leave, he testified that he would not have let her leave unless the drug dog failed to identify the scent of illicit drugs. Moreover, the State, conceded in oral argument to the trial court that Williams remained seized throughout the entire encounter and was never free to leave—a concession the State continued to maintain in this appeal. Also, the State argued that Schomaker had a reasonable suspicion to detain Williams when he stopped the Jeep and that Schomaker “muddied the water by asking for [her] consent.”
The trial court upheld the constitutionality of the detention and later search. The trial court stated that the issue was whether there was reasonable suspicion to extend the detention of Williams long enough to bring in the K–9 unit, in which the dog later indicated the Jeep contained illegal drugs and led to the probable cause to arrest Williams and search her person.
The State's case against Williams proceeded to a bench trial. Williams objected to the legality of the search. The trial court convicted Williams of both counts and later sentenced her to 12 months' probation, with an underlying 17–month prison sentence.
Did the Trial Court Err in Denying Williams' Motion to Suppress?
The State carries the burden of proving to the trial court that a search or seizure was lawful. State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006). An appellate court then reviews the trial court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the trial court's findings are reviewed to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). Yet when the material facts to a trial 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 has unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).
Although Williams admits that Schomaker lawfully detained her for violating a municipal traffic ordinance, she argues that Schomaker did not have a reasonable suspicion to prolong her detention long enough for the K–9 unit dog to sniff the Jeep for illegal drugs. In rebuttal, the State argues that Schomaker had a reasonable suspicion to detain Williams for her involvement in drug-related activity and that Williams detention did not measurably extend the duration of her stop.
Also, as stated earlier, the State concedes that Williams was never free to leave even though Schomaker told her otherwise. Thus, we need not determine whether Williams' encounter with Schomaker morphed from an investigatory detention to a voluntary encounter.
The Fourth Amendment of the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable governmental searches and seizures. A person is seized when a state actor applies physical force or makes a showing of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave. State v. Morris, 276 Kan. 11, 18–19, 72 P.3d 570 (2003) (citing California v. Hodari D., 499 U.S. 621, 624, 628–29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).
The stop of a vehicle driven on public streets always constitutes a seizure. State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991). A traffic violation, however, provides an objectively valid reason for conducting a traffic stop even if the stop is pretextual. State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007). Meanwhile, our Supreme Court has recognized that police do not have unbridled authority to investigate any possible crime once the traffic stop has occurred:
“A law enforcement officer conducting a routine traffic stop may request a driver's license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he or she is entitled to operate the car, the driver must be allowed to proceed on his or her way, without being subject to further delay by the officer for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime.” State v. Mitchell, 265 Kan. 238, 245, 960 P.2d 200 (1998).
See also State v. Jones, 47 Kan.App. 866, 871, 280 P.3d 824 (2012) (citing Mitchell for the same proposition quoted above) ( petition for review filed July 27, 2012).
Reasonable suspicion, in terms of the quantity and quality of evidence available to police, is a less demanding standard than probable cause. State v. Cook, 38 Kan.App.2d 20, 24, 161 P.3d 779,rev. denied 285 Kan. 1175 (2007); see also State v. Malm, 37 Kan.App.2d 532, 540, 154 P.3d 1154 (reasonable suspicion can arise from information that is less reliable than that required to show probable cause), rev. denied 284 Kan. 949 (2007). But a reasonable suspicion requires more than a hunch that the person seized is involved in criminal activity. State v. Walker, 292 Kan. 1, 9, 251 P.3d 618 (2011). Rather, a reasonable suspicion necessitates a particularized suspicion of wrongdoing. Cook, 38 Kan.App.2d at 24; see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); K.S.A. 22–2402(1) (codifying the search and seizure principles expressed in Terry ). When determining whether police had a reasonable suspicion to detain a person temporarily, courts consider the totality of the circumstances, using common sense and ordinary human experience and giving deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances. Cook, 38 Kan.App.2d at 24.
Did Schomaker Have a Reasonable Suspicion to Detain Williams for Drug Possession or Use?
Essentially two key factors are relevant to determining whether Schomaker, under the totality of the circumstances, had reasonable suspicion to detain Williams to investigate her possible involvement in drug-related activity. First, Williams left the home of a suspected drug dealer with Buckley, whom police also believed was tied to the local methamphetamine culture. Second, Williams appeared nervous and was shaking slightly when Schomaker approached her. Indeed, Schomaker testified at the suppression hearing that those two factors prompted him to call the K–9 unit.
With respect to the first factor, this court has recognized that a person's travels to and from a site known for drug-related activity may help establish reasonable suspicion. See, e.g., State v. Golston, 41 Kan.App.2d 444, 454, 203 P.3d 10 (2009) (police had reasonable suspicion to suspect passenger in car was involved in drug activity, in part, because the defendant had just come from a gas station known for drug activity and where several arrests for drug-related crimes had occurred over the past 2 years), rev. denied 289 Kan. 1282 (2010). But a person's “ ‘mere propinquity to others independently suspected of criminal activity does not, without more, authorize a Terry stop unless the officer has a reasonable suspicion directed specifically at that person.” ‘ State v. Boykins, 34 Kan.App.2d 144, 147, 118 P.3d 1287 (2005) (citing Morris, 276 Kan. at 25); see Ybarra v.. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979).
The law concerning the second factor, nervousness, is somewhat similar. A driver's nervousness can contribute to a reasonable suspicion that he or she is involved in some sort of criminal activity. See Moore, 283 Kan. at 349–60. Nervousness, however, may have limited value in the reasonable suspicion inquiry. As our Supreme Court has recognized: “ ‘It is certainly not uncommon for most citizens—whether innocent or guilty—to exhibit signs of nervousness when confronted by a law enforcement officer.’ “ State v. DeMarco, 263 Kan. 727, 736, 952 P.2d 1276 (1998). Though nervousness alone is not enough to form a reasonable suspicion, when combined with other factors, reasonable suspicion may arise. See 263 Kan. at 736–41.
Kansas caselaw is exhaustive on both reasonable suspicion and the previously mentioned two factors. But Boykins is perhaps most analogous to the present case. There, police officers were surveilling a home for suspected drug activity. Early in the afternoon, the defendant drove to the front of the home, and a female passenger then existed the car and entered the home. But before doing so, she removed something from a pocket and gave it to Boykins.
Police followed the defendant as he drove away and eventually stopped him for failing to use his turn signal. According to police, Boykins had jittery eyes, shaking hands, and a generally nervous behavior, which included a shaking voice. Police proceeded to find drugs on his person and in his car after questioning him about whether he possessed drugs.
On appeal, this court reversed the defendant's conviction. Similarly, the two key factors at issue were Boykins' ties to the suspected drug house and his nervousness. Initially, this court afforded little weight to the State's contention that the defendant was nervous. Next, this court explained its apprehensions about the evidentiary value of Boykins' ties to the home:
“The record is devoid of any evidence that [police] saw Boykins do anything that was suspicious. There is no evidence regarding the activities of the female passenger or her relationship with Boykins. There is no evidence Boykins was acquainted with anyone in the house. His conduct was certainly lawful. Adding lawful conduct under no suspicious circumstances together with his nervousness at the traffic stop is not an articulation of reasonable suspicion of criminal activity, it only produces a subjective hunch that may or may not ultimately prove correct.” 34 Kan.App.2d at 148–49.
When we analyze the two key factors that are relevant in this case—Williams' ties to True, a suspected drug dealer, and Buckley, who was associated with the local methamphetamine culture and True dealing methamphetamines from his home South Mission Road—they show nothing more than guilt by association. For example, Groh testified that in the past 7 years, he had stopped at least 30 vehicles after the driver left from one of True's homes, and on at least 10 occasions, he arrested an occupant of one of those vehicles for possession of methamphetamines or drug paraphernalia. There was also evidence that the police had executed a search warrant at the South Mission home within the past year and had found methamphetamines.
Nevertheless, when we consider the 30 instances that Groh had stopped vehicles after leaving True's residences with the 10 instances that an occupant of one of those vehicles was arrested for illegal drugs or drug paraphernalia, this means that over 66% of the time no illegal drugs or drug paraphernalia was discovered as a result of the stops. This simple enumeration is unpersuasive for inferring a causal connection between an occupant's leaving True's residences and methamphetamines or drug paraphernalia will be found on either the vehicle's occupants or in the vehicle.
Moreover, Williams points out a number of shortcomings in the connections between Williams, True, and the South Mission home: neither Schomaker nor Groh testified that True was in the home when Williams was there; neither officer witnessed any contact between True and Williams or between Buckley and True; and neither officer knew for how long Williams had been at the home. Moreover, Schomaker was equivocal on Buckley's connection to the local drug culture. Unlike Boykins, the police did not witness any transaction involving Williams or Buckley that would suggest they received drugs from True or anyone else in the home.
Schomaker stopped Williams after she failed to activate her turn signal 100 feet before making a right turn. He admitted this stop was pretextual. In other words, when Williams left the South Mission home, Schomaker did not have an objective basis for suspecting that Williams was engaged in drug-related activity:
“[Williams' Defense Counsel] Q. Why didn't you just stop the vehicle when it left the house?
“[Schomaker] A. Didn't have a violation on it, sir.
“[Williams' Defense Counsel] Q. Would you agree with me that based on your training and experience you didn't have any reason to stop the car at that point?
“[Schomaker] A. Right, at that point I didn't.”
When Schomaker approached Williams, she seemed nervous and was slightly shaking. The degree of her nervousness, however, seemed rather minimal: She did not appear to be overly nervous, nor was she sweating. Indeed, her nervousness was probably not as severe as that of the defendant in Boykins, who had jittery eyes, shaking hands, and a generally nervous behavior, which included a shaking voice. Consequently, Williams' anxious behavior seems to factor only minimally in the State's favor. See DeMarco, 263 Kan. at 736.
Schomaker then took Williams' license and immediately called the K–9 unit. At this point, however, Schomaker did not gain any additional knowledge or other information which would trigger a reasonable suspicion that Williams was involved in drug-related activity.
The check on Williams' license indicated that it was in good standing. Schomaker cited Williams for the traffic violation, explained the citation to her, and told her to have a nice day and that she could leave. At this point, Schomaker could no longer detain Williams unless he had a reasonable suspicion that she was involved in drug-related activity. See Mitchell, 265 Kan. at 245. None of the previously mentioned two factors taken alone, or collectively, rises to the level of legally recognized reasonable suspicion.
As an afterthought, the State briefly notes that the time of day may also have been a factor in the reasonable suspicion analysis. See City of Garden City v. Mesa, 215 Kan. 674, 683, 527 P.2d 1036 (1974) (Prager, J., dissenting). Indeed, the record makes clear that Schomaker stopped Williams at 11:07 p.m. The trial court also cited the time of day as a factor in its decision, though without further explanation. Yet, the time of day seemed to be a nonissue for the litigants at the suppression hearing: Schomaker did not testify about whether the time of day made him suspicious that Williams was involved in drug-related activity, and the State did not make note of this point in its oral argument before the trial court. Moreover, the State does not cite any cases that say the 11 p .m. to midnight hour is inherently suggestive of criminal activity. Thus, the time of day factor is neutral in this case.
The Terry Court held ... that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons he is dealing with may be armed and presently dangerous, [he may stop and frisk them].” 392 U.S. at 30. “[S]imple ‘ “good faith on the part of the arresting officer is not enough.” ‘ “ Terry, 392 U.S. at 22 (quoting Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 13 L.Ed.2d 142 [1964] ). That is, a good faith belief is a necessary, but not a sufficient condition for a valid stop or frisk. Although the State maintains that Officers Schomaker and Groh had reasonable suspicion that Williams was engaged in drug-related activity even before they stopped the Jeep, the officers' actions rested upon a hunch, which is not reasonable suspicion.
Did the Stop Measurably Extend Williams' Detention?
The State also argues that because Schomaker did not measurably extend the duration of Williams' detention, the detention remained lawful even after Schomaker issued the citation, returned Williams' driver's license, and told her she was free to leave. The precise amount of time by which Schomaker extended Williams' detention is unclear, though it seems to be very brief. After Schomaker returned Williams' license, he asked her a few more questions before the drug dog was deployed:
“[Counsel for the State] Q. Did you fill out the citation?
“[Schomaker] A. Yes.
“Q. Then did you take that citation back to her vehicle?
“A. Yes, and I asked her to step out of the vehicle.
“Q. Okay. And the point that you asked her to step out of the vehicle, did you give her the citation?
“A. Yes.
“Q. Okay. Did you have any conversations with her at that point in time?
“A. After the citation?
“Q. Yes.
“A. Yes, I did.
“Q. What did you—what did you say?
“A. I told her to have a nice day and she could go.
....
“Q. Was that citation for a lane violation, or excuse me, a failure to signal a turn?
“A. Correct.
“Q. Told her have a nice day and she could go?
“A. Correct.
“Q. Did she turn around and begin to leave?
“A. Yes. She walked up to the vehicle and to the driver's side.
“Q. Okay. At this point in time did she leave at this point in time?
“A. She left my car and walked up to that vehicle.
“Q. Did you reinitiate contact with her?
“A. I asked her if I could talk to her for a second. She walked back to where I was at the front of our police vehicle.
“Q. Okay. And did you have a conversation with her at that point in time?
“A. Yes.
“Q. Tell me about that conversation.
“A. I asked her if there was anything illegal in the vehicle, drugs or anything of that nature.
“Q. Okay. What did she say?
“A. She stated there was not.
“Q. Okay. Did you ask permission to search that vehicle?
“A. Yes, I did.
“Q. What did she say?
“A. She stated she couldn't give me permission because she wasn't the owner.”
Several questions later, the counsel for the State asked Officer Schomaker if he asked Williams if she had anything illegal in her purse:
“[State's Counsel] Q. Did she give you an answer?
“[Schomaker] A. Yes. She stated she had some scales in there because she uses drugs.
“Q. Did she infer that these were drug scales?
“A. Yes.
“Q. At that point in time what did you do?
“A. I went and retrieved her purse from the driver's side of this vehicle.
“Q. Okay.
“A. Then brought it back, put it on the hood of the police vehicle.”
Counsel for the State then asked Officer Schomaker if the K–9 had sniffed the Jeep yet:
“[State's Counsel] Q. Had the K9 sniffed the vehicle yet at this time?
“[Schomaker] A. No.
“Q. Okay. Subsequent to that did the K9—subsequent to you grabbing the purse, did the K9 sniff the vehicle?
“A. Yes.
“Q. And can you recall whether or not the dog indicated on the vehicle?
“A. Officer Hancock stated that the dog had indicated on the vehicle.”
Officer Schomaker further testified that he placed Williams under arrest only after the K–9 had indicated on the Jeep:
“[State's Counsel] Q. Okay. At some point in time you placed Miss Williams under arrest, is that right?
“A. Yes, correct.
“Q. Was that before or after the dog indicated on the vehicle?
“A. That was after.”
We are guided in this inquiry by our Supreme Court's decision in State v. Morlock, 289 Kan. 980, 218 P.3d 801 (2009). In Morlock, Henry Cocking, a Sedgwick County Sheriff deputy, stopped a van with Arizona license plates because the driver failed to activate his turn signal when changing lanes. The driver of the van, Ronald O'Kelly, appeared very nervous, and the passenger, Morlock, stared straight ahead and did not look at Cocking. Cocking asked O'Kelly and Morlock a host of questions about their travels. Morlock explained the two flew from Kansas City to Phoenix so Morlock could see a woman he had met on the Internet and that the two men stayed in Phoenix for a couple of days and then drove back to Kansas City in a rented van because it was too expensive to fly back. Cocking also asked Morlock for and received the rental agreement. He took driver's licenses of both men, ran a warrant check, and confirmed the rental agreement seemed to be in order.
Cocking returned to the van, handed back the documents, and told Morlock and O'Kelly to have a nice day. He walked toward his patrol car but then turned around to ask additional questions. Before long, Morlock gave Cocking permission to search the van, and Cocking found illegal drugs in the van.
Before our Supreme Court, Morlock argued, in part, that Cocking impermissibly extended the stop—therefore invalidating Morlock's consent to the search—by asking Morlock about his travels. Our Supreme Court disagreed, however, and held that Cocking did not measurably extend the duration of the stop because his questioning of Morlock only lasted 2 minutes. 289 Kan. at 986–95. Moreover, the questioning occurred while Morlock was searching for the rental agreement.
Nevertheless, Morlock cites to a number of other cases that hold that police did not measurably extend the detention of a motorist or passenger when the questioning had occurred concurrently with the officer performing other duties—obtaining a license, registration, and insurance; citing the defendant for a traffic violation; regarding weapons or awaiting results of the computer check. 289 Kan. at 992–94. Indeed, Morlock acknowledges that “the record is not crystal clear on whether Cooking's question—why Morlock was driving a rental van back to Kansas City after flying to Phoenix—was asked concurrent with the search for the rental agreement or after Cocking reviewed it.” 289 Kan. at 994.
Those authorities cited in Morlock, however, suggest that a traffic stop may be briefly extended to investigate other crimes, but that such investigation cannot be extended once the original purpose of the investigation—here, the traffic violation—has been completed. In other words, Morlock does not change the well-established premise of Mitchell, that once a police officer has finished his or her investigation of a traffic stop and issues a citation, the motorist must be free to leave “without being subject to further delay by the officer for additional questioning” unless the officer has a reasonable suspicion of illegal transactions in drugs or any other serious crime. See Mitchell, 265 Kan. at 245.
Moreover, unlike the authorities cited in Morlock, the K–9 did not sniff the Jeep while Officer Schomaker was concurrently running the license check on Williams' license. Officer Schomaker clearly testified that the K–9 sniffed the Jeep only after he had completed and issued Williams the traffic citation and told her that she was free to leave. This is an important fact because the State readily concedes that the traffic stop never transformed into a voluntary encounter. See State v. Diaz–Ruiz, 42 Kan.App.2d 325, 337, 211 P.3d 836 (2009) (reasonable suspicion of trooper who stopped motorist for unsecured ladder had “evaporated” once the trooper observed the ladder was secure; trooper thus “unlawfully extended the scope of the stop by questioning the defendants regarding their travel plans and requesting their identification”); In re M.K.W., No. 103,414, 2010 WL 4977141, at *1–3 (Kan.App.2010) (unpublished opinion) (police officer measurably extended length of stop by running warrant checks on the motorist and passengers that were unrelated to the initial purpose of the stop).
Because Schomaker did not have a reasonable suspicion when he issued Williams the traffic citation and told her she was free to leave, her later detention was either impermissible because she could no longer be detained under the premise of reasonable suspicion or improper because it measurably extended the duration of the original stop. Thus, the evidence and later confession obtained from Williams must be suppressed, and her conviction must be reversed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Reversed.