Opinion
No. 105,877.
2012-06-22
STATE of Kansas, Appellee, v. Jerry J. WRAY, Appellant.
Appeal from Rooks District Court; Thomas L. Toepfer, Judge. Michael S. Holland II, of Holland and Holland, of Russell, for appellant. Edward C. Hageman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Rooks District Court; Thomas L. Toepfer, Judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant. Edward C. Hageman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jerry J. Wray appeals the denial of his motion to suppress drug evidence seized during a traffic stop. We affirm.
Factual and Procedural Background
The State of Kansas charged Wray with possession of hydrocodone, possession of marijuana, possession of drug paraphernalia (“Zig-zag” rolling papers, a pipe, and a seed remover), and failure to use a seat belt. Trooper Steven C. Harvey, a 31–year veteran of the Kansas Highway Patrol, testified at the preliminary hearing and provided the evidence the district court considered in deciding the suppression motion.
On July 28, 2008, Trooper Harvey was using radar to detect speeders. A Ford Explorer traveling at 69 miles-per-hour passed by in a 65 mile-per-hour zone. The vehicle also had a loud exhaust, so Trooper Harvey decided to stop the vehicle.
When the trooper activated his emergency lights, he noticed the driver light a cigarette. He testified that this indicated “an alcohol involvement or some other illegal substance because they light up so you can't smell it on their breath.” Trooper Harvey said his opinion was based on his training and 31 years of experience.
As the Explorer came to a stop, Trooper Harvey noticed the passenger “moving things around in the front of the vehicle.” It appeared to the trooper that the passenger “was hiding something or putting something away.” Believing “the threat was probably on my right front side,” Trooper Harvey approached the passenger side window.
Trooper Harvey next noticed that “[b]oth occupants seemed awfully nervous ... for just a traffic violation.” The trooper asked the driver, Jason Winters, who owned the Explorer, for his driver's license and registration. Winters visibly shook as he handed over the documents. Realizing that neither occupant was wearing a seat belt, the trooper also asked the passenger, Wray, for identification. Wray did not have identification but told the trooper his name.
The occupants' nervousness reinforced Trooper's Harvey's suspicion that they were using alcohol or drugs. The trooper asked Winters if there was alcohol in the Explorer, and he indicated there was. The trooper walked around to Winter's side of the vehicle and asked if he could look at the alcohol. Winters gave permission and also agreed when Trooper Harvey asked to open the rear driver's side door.
In the backseat Trooper Harvey found a six-pack container with three unopened bottles of beer. The bottles were “cold and sweating,” and because there was no cooler present, the trooper suspected they were recently purchased. This suggested in turn that “there were three [bottles] missing,” and the trooper was interested in finding them in the vehicle.
Trooper Harvey, however, noticed Winters and Wray looking at each other like they were “trying to tell each other something.” The trooper also noticed that the “nervousness had increased in them.” Based once again on his training and experience, Trooper Harvey testified, “[W]hat occurs after that point, sometimes there's an officer attack or there's a weapon involved.” The trooper decided to “make sure I didn't have any weapons on the occupants before I went any further.”
Trooper Harvey asked Winters if he had a weapon, and Winters said he did. Trooper Harvey removed Winters from the Explorer and took a “lock-blade knife” from his pocket. The trooper then asked Wray if he had a weapon, and Wray said he did.
Trooper Harvey had Winters return to the driver's seat, and as he walked to the passenger side, Wray now said he did not have a weapon. Trooper Harvey decided to frisk Wray because he “had already indicated he did have a weapon” and because Wray's movements earlier in the stop were consistent with hiding a weapon. Trooper Harvey removed Wray from the Explorer, conducted a pat-down search, and took a knife from Wray's front pants pocket.
During the pat-down search, Trooper Harvey also felt what he thought was a pipe in the same pocket as the knife. The trooper described the discovery of the pipe:
“Q. Was that an open-handed pat down, or did you have to squeeze the item or do anything to it in order to figure out what it actually felt like?
“A. Well, when I put my hand up against it, it felt like a pipe, and then I felt, I could feel the bowl on it, or what I thought was the bowl at the time.
“Q. So you squeezed it?
“A. Yeah.
“Q. And you kind of moved it around to try to figure out what it was?
“A. No, I didn't move it around.
“Q. Just squeezed it?
“A. Just squeezed it.
“Q. And that's what you believed to maybe be a pipe of some variety?
“A. Not maybe. 1 was pretty sure it was a pipe. I've felt a pipe in a pocket before.”
Later on the trooper elaborated, “I felt it was a pipe when I patted it first of all. That's why I squeezed it, okay. And then it even felt more like a pipe.” In fact, Trooper Harvey testified that, because of its length, he believed the pipe was one typically used to smoke illegal substances.
Trooper Harvey searched Wray's pocket and removed what he thought was the item, but was actually two items: a rolled up bag of marijuana and a plastic container with two pills inside. The trooper testified the items “felt like a pipe” because they “just happened to be placed” side-by-side. Trooper Harvey then looked in the Explorer and saw “the rest of the stuff on the right front seat where [Wray] was sitting and identified what appeared to be marijuana and the purple pipe ... and the orange rolling papers.” As a result, Trooper Harvey arrested Wray. Forensic testing later revealed the pills in the plastic container were hydrocodone, the bags contained marijuana, and the pipe and seed remover had traces of marijuana.
After the preliminary hearing, Wray moved to suppress the evidence seized from his person and from the Explorer. The suppression motion was decided by a different judge, Thomas L. Toepfer, based on the transcript of the preliminary hearing. The district court filed an order denying the motion to suppress.
The district court found Trooper Harvey had reasonable suspicion to stop the Explorer, reasonable suspicion to ask Winters if there was alcohol in the Explorer, and that Winters “consented to a search of the vehicle for the alcohol.” Noting that “[n]one of this appeared to have taken very much time,” the district court concluded “the detention to that point was reasonable under the circumstances, if not consented to by the driver, who owned the [Explorer].”
The district court then analyzed the pat-down search of Wray. The court found the “ ‘pipe’ ... had all the earmarks of a pipe, which is commonly used for both legitimate and illegitimate purposes .” Based on this and the other evidence, the district court concluded Trooper Harvey had “reasonable suspicion—more than a hunch—that the second object in the pocket was a drug pipe subject to further examination and confiscation.”
Following the suppression ruling, the parties next submitted the matter for trial on stipulated facts. Wray preserved an objection “to any and all evidence contained in the following stipulation of fact which would have been suppressed had the ... motion to suppress been granted.” Among the facts to which Wray stipulated was “Trooper Harvey asked for consent to search and Winter consented.” The parties also stipulated to the following:
“10. Trooper Harvey then asked Wray if he had any weapons. Wray first said he did have a weapon, then said he did not. At this point Trooper Harvey asked Wray to exit the [Explorer] so he could conduct a patdown search of Wray. During the patdown Trooper Harvey found a knife in Wray's right, front pocket. Trooper Harvey took possession of the knife.
“11. Trooper Harvey also felt what he believed to be a pipe in Wray's [front] pocket. Trooper Harvey took possession of that object and discovered it was a plastic bag with what looked like marijuana and a plastic bulb with two (2) blue oval pills in it. The plastic bulb and pills were seized and taken into evidence.
“12. Trooper Harvey then looked at the front passenger seat where Wray had been seated and saw, in plain view, two (2) plastic bags containing suspected marijuana, a metal pipe, rolling papers and a seed remover. The bags of vegetation, metal pipe, rolling papers and seed remover were seized and taken into evidence.”
The district court found Wray guilty as charged, and Wray appeals.
Scope and Duration of the Traffic Stop
Citing the Fourth Amendment to the United States Constitution, Wray contends Trooper Harvey impermissibly “continued” his detention past the point where “the initial justification for the traffic stop had been satisfied and completed.” Wray denies Trooper Harvey “possessed objective facts which established reasonable suspicion” justifying the allegedly continued detention. The State responds that Trooper Harvey could question Winters and Wray on matters unrelated to the traffic stop.
Generally,
“[w]hen reviewing a motion to suppress evidence, an appellate court reviews the factual underpinnings of a district court's decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. The State bears the burden to demonstrate that a challenged search or seizure is lawful.” State v. Morlock, 289 Kan. 980, Syl. ¶ 1, 218 P.3d 801 (2009).
In the present case, because the district court decided the suppression motion based on the transcript of the preliminary hearing at which the facts were uncontroverted and the suppression issue was preserved at a trial based on stipulated facts, our review is unlimited. See State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).
The Fourth Amendment prohibits “unreasonable searches and seizures.” Warrantless searches and seizures are presumptively unreasonable absent an exception to the search warrant requirement. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied––– U.S. ––––, 131 S.Ct. 2114, 179 L.Ed.2d 908 (2011). Wray does not challenge the traffic stop itself, which was justified as an investigatory detention based on reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See State v. Thompson, 284 Kan. 763, Syl. ¶¶ 4–5, 166 P.3d 1015 (2007).
Instead, Wray challenges the extent and length of the stop. A “traffic stop may not exceed the scope or duration necessary to carry out the purpose of the stop. When conducting a routine traffic stop, a law enforcement officer may request a driver's license and vehicle registration, conduct a computer check, and issue a citation.” Thompson, 284 Kan. 763, Syl. ¶ 7, 166 P.3d 1015.
“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 driver must be allowed to proceed without further delay or questioning unless (1) the encounter between a law enforcement officer and the driver ceases to be a detention, it becomes consensual, and the driver voluntarily consents to additional questioning or (2) during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity.” 284 Kan. 763, Syl. ¶ 8, 166 P.3d 1015.
As the State properly notes, however, “ ‘[a]n officer's inquiries into matters unrelated to the justification for the stop ... do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.’ “ Morlock, 289 Kan. at 987–88, 218 P.3d 801 (quoting Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 [2009] ). Trooper Harvey asked Winters and Wray about alcohol, but that single question did not measurably extend the stop. As the trial court pointed out, the entire stop did not appear to take long. See United States v. Chaney, 584 F.3d 20, 26 (1st Cir.2009) (a minute or two did not measurably extend a stop); Morlock, 289 Kan. at 999, 218 P.3d 801 (stop was not measurably extended by a handful of questions when “the entire stop took only 12 minutes.”)
Trooper Harvey's search for alcohol may have measurably extended the stop, but the trial court found Winters consented to the vehicle search, and Wray then stipulated to the consent for purposes of trial. This stipulation was not evidence to be suppressed and therefore was not subject to the reserved objection. Moreover, Wray does not challenge Winters' consent on appeal, thus waiving or abandoning the issue. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Since Winters consented to the search for alcohol, Trooper Harvey had a basis for extending the stop independent of reasonable suspicion. See Thompson, 284 Kan. at 810–12, 166 P.3d 1015.
Moreover, we conclude Trooper Harvey had reasonable suspicion justifying further detention. He already knew Winter had lit a cigarette when the emergency lights were activated, and the trooper testified based on his training and experience that this indicated the possible presence of alcohol or illegal substances. We consider the trooper's opinion “with deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances, 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.” State v. Walker, 292 Kan. 1, Syl. ¶ 6, 251 P.3d 618 (2011); see also State v. Franzen, 792 N.W.2d 533, 538 (N.D.2010) (recently lit cigarette was a masking odor for marijuana and added to reasonable suspicion).
Trooper Harvey further knew of Wray's furtive movements while being stopped. Although the trooper's testimony connected the movements with weapons, the movements were also consistent with hiding an opened container of alcohol. See State v. Glossbrener, 146 Wash.2d 670, 673, 49 P.3d 128 (2002); see also K .S.A.2011 Supp. 8–1599 (prohibiting transportation of liquor in an opened container). Wray's movements thus provided an additional, objective justification for Trooper Harvey's suspicion of wrongdoing. See United States v. Foreman, 369 F.3d 776, 781 (4th Cir.2004) (“Because reasonable suspicion is an objective test, we examine the facts within the knowledge of Trooper Wade to determine the presence or nonexistence of reasonable suspicion; we do not examine the subjective beliefs of Trooper Wade to determine whether he thought that the facts constituted reasonable suspicion.”).
Trooper Harvey further knew that both Wright and Wray were nervous—more nervous than the trooper would expect for a traffic violation. Nervousness is a well-recognized factor in reasonable suspicion analysis. See Morlock, 289 Kan. at 996, 218 P.3d 801;State v. DeMarco, 263 Kan. 727, 735–37, 952 P.2d 1276 (1998); State v. Gross, 39 Kan.App.2d 788, 807–08, 184 P.3d 978 (2008). We consider this factor to be more significant where an experienced law enforcement officer has testified to more-than-expected nervousness. See Gross, 39 Kan.App.2d at 807, 184 P.3d 978 (observing that “most individuals are likely to exhibit some signs of nervousness when confronted by police”).
With respect to the beer bottles themselves, they were cold with no source of refrigeration. This suggested they had recently been taken from refrigeration, possibly at a store. See State v. Sheppard, 294 S.W. 121, 122 (Mo.App.1927) (cold beer bottles found near a building containing such bottles on ice was circumstantial evidence linking the beer bottles to the building). Given the six-pack container, there should have been six unopened bottles, and yet there were only three. This suggested that three bottles had been removed from the container and opened for consumption. If so, Winters could be impaired or there could have been open containers somewhere in the Explorer. Considering the “totality of the circumstances,” Trooper Harvey had reasonable suspicion to continue the detention as he searched for the missing bottles. See Walker, 292 Kan. 1, Syl. ¶ 6, 251 P.3d 618.
Trooper Harvey then asked about weapons, but again this took very little time. The question itself did not measurably prolong the stop. See Morlock, 289 Kan. 980, Syl. ¶ 4, 218 P.3d 801. Under these facts, the question did not rise to constitutional significance.
The pat-down searches may have measurably prolonged the stop, but Wray waives or abandons this argument on appeal. See McCaslin, 291 Kan. at 709, 245 P.3d 1030. Even if he had not, the presence of alcohol, the increasing nervousness of the occupants, and their admission to weapons provided reasonable suspicion that they were armed and dangerous. See State v. Golston, 41 Kan.App.2d 444, Syl. ¶¶ 7–8, 203 P.3d 10 (2009), rev. denied 289 Kan. 1282 (2010).
Before addressing the next issue, we note that Wray stipulated for purposes of trial to both the items on the Explorer's seat—the bags of marijuana, rolling papers, pipe, and seed remover—and to their location in plain view. Once again, although Wray preserved an objection to evidence which would have been suppressed, a stipulation that items were in plain view was not evidence which would be suppressed, but a legal basis for admission of the evidence. Whether the items on the seat were in plain view is, therefore, waived or abandoned on appeal. See McCaslin, 291 Kan. at 709, 245 P.3d 1030. Since the traffic stop was not impermissibly extended, Trooper Harvey was justified in seizing these items under the plain view exception to the warrant requirement. See State v. Graham, 273 Kan. 844, 847, 46 P.3d 117 (2002); McDermed v. State, 36 Kan.App.2d 806, 813, 146 P.3d 222 (2006), rev. denied 283 Kan. 931 (2007).
Pat–Down Search
Wray contends Trooper Harvey violated his “constitutional rights by conducting an illegal and improper ‘pat down’ search.” Wray maintains “the trooper impermissibly ‘squeezed’ the item while it was still in [Wray's] pocket in order to help the officer to determine what the nature of the item actually was.” Additionally, Wray argues, “the trooper also violated [Wray's] rights by removing the item from [his] pocket without it being immediately apparent that the item was, in fact, contraband.”
A pat-down search may justify seizure of contraband in “plain feel.” See State v. Wonders, 263 Kan. 582, 590–92, 952 P.2d 1351 (1998). Our Supreme Court quoted the rationale for the plain feel exception from Minnesota v. Dickerson, 508 U.S. 366, 375–76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993):
“ ‘If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.’ “ 263 Kan. at 591, 952 P.2d 1351.
Thus, “[t]he plain feel exception is an extension of the plain view exception to the warrant requirement. [Citation omitted.]” State v. Davis, 28 Kan.App.2d 75, 82, 11 P.3d 1177 (2000), rev. denied 270 Kan. 900 (2001). A law enforcement officer does not need “an unduly high degree of certainty as to the incriminatory character of evidence.” Wonders, 263 Kan. 582, Syl. ¶ 9, 952 P.2d 1351. Instead, “the seizing authority need only have reasonable or probable cause to believe that the object is evidence of a crime.” 263 Kan. 582, Syl. ¶ 9, 952 P.2d 1351.
We believe two Kansas cases illustrate this exception to the warrant requirement. In Davis, an officer “felt something hard which was about the size of an ink pen” during a pat-down search for weapons. 28 Kan.App.2d at 76, 11 P.3d 1177. The officer testified “he had no idea what the object was.” 28 Kan.App.2d at 76, 11 P.3d 1177. This court held the plain feel exception did not apply because the identity of the item, later shown to be pipes containing cocaine residue, “was not immediately apparent” during the pat-down search. 28 Kan.App.2d at 76, 83, 11 P.3d 1177.
On the other hand, In re L.A., 270 Kan. 879, 891, 21 P.3d 952 (2001), featured a “a pat-down search of ... juveniles for officer safety,” which uncovered “a bag of green botanical substance in L.A.'s jeans pocket;” and the officer “testified that based on his experience, he was certain from the outset that the object he felt in L.A.'s pocket was marijuana.” 270 Kan. at 891, 893, 21 P.3d 952. Our Supreme Court affirmed the trial court's denial of a motion to suppress. 270 Kan. at 893, 21 P.3d 952.
The present case is more like In re L.A. than Davis. Trooper Harvey testified that when he first felt Wray's pocket, he thought it contained a pipe used to ingest controlled substances. Wray complains Trooper Harvey later squeezed the items, but the trooper did this only to confirm his initial impression.
In Wonders, an officer who had “felt a bulge in Wonders' left front jeans pocket” testified “it was immediately apparent ... that it was a bag of marijuana.” 263 Kan. at 585, 952 P.2d 1351. The officer nevertheless returned to the area after the initial frisk and “patted it down again for an additional 3 seconds” while asking Wonders questions. 263 Kan. at 585, 595, 952 P.2d 1351. The issue on appeal was “whether passing over and then returning to an area negates a finding by a trial court that the nature of the contraband was immediately apparent upon the initial search.” 263 Kan. at 596, 952 P.2d 1351. Our Supreme Court held it did not. 263 Kan. at 600, 952 P.2d 1351. We similarly conclude that Trooper Harvey's act of squeezing the items did not negate his initial impression regarding them as drug paraphernalia.
Even if Trooper Harvey needed to squeeze the items to identify them, we disagree with Wray's assertion that squeezing is always impermissible. Wray would limit pat-down searches to “open-handed” frisks. Wray cites Dickerson and Wonders in support, but we disagree with his reading of these cases.
In Dickerson an officer continued “ ‘squeezing, sliding and otherwise manipulating’ “ an item in a pocket to determine its identity after he knew it was not a weapon. 508 U.S. at 378. The continuation of the pat-down search past the point when the presence of a weapon was excluded, and not the officer's use of his finger tips instead of his palm, made the pat-down search improper:
“Although the officer was lawfully in a position to feel the lump in respondent's pocket, because Terry entitled him to place his hands upon respondent's jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. Because this further search of respondent's pocket was constitutionally invalid, the seizure of the cocaine that followed was likewise unconstitutional. [Citation omitted.]” 508 U.S. at 379.
We, therefore, agree with a statement of law from United States v. Yamba, 506 F.3d 251, 259 (3d Cir.2007):
“Assuming that an officer is authorized to conduct a Terry search at all, he is authorized to assure himself that a suspect has no weapons. He is allowed to slide or manipulate an object in a suspect's pocket, consistent with a routine frisk, until the officer is able reasonably to eliminate the possibility that the object is a weapon. If, before that point, the officer develops probable cause to believe, given his training and experience, that an object is contraband, he may lawfully perform a more intrusive search. If, indeed, he discovers contraband, the officer may seize it, and it will be admissible against the suspect. If, however, the officer ‘goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.’ Dickerson, 508 U.S. at 373.”
We acknowledge that in Wonders our Supreme Court mentioned the officer “had not manipulated or squeezed the pocket during either pat-down search.” 263 Kan. 595. We take this as dicta, however, not the holding of the court. Our Supreme Court's holding in Wonders was on a different issue—whether patting the area down a second time negated a finding that the item was immediately apparent to the officer.
We conclude Trooper Harvey had reasonable or probable cause to believe, upon his initial frisk of the items in Wray's pocket, that the pocket contained drug paraphernalia.
Affirmed.