Opinion
No. 107,317.
2012-07-27
STATE of Kansas, Appellant, v. Kevin F. HAMILTON, Appellee.
Appeal from Saline District Court; Rene S. Young, Judge. C. Charles Ault–Duell, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellant. Ashley Larson, of Salina Public Defender Office, for appellee.
Appeal from Saline District Court; Rene S. Young, Judge.
C. Charles Ault–Duell, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellant. Ashley Larson, of Salina Public Defender Office, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kevin F. Hamilton's motion to suppress was granted. The district court found that following a traffic stop, Hamilton was detained without articulable and reasonable suspicion and his consent to search was not voluntary. The State brings this interlocutory appeal. We affirm.
On the night of September 5, 2011, Hamilton's vehicle was illegally parked on a rural road in Saline County. While Deputy Norris checked Hamilton's vehicle tag with dispatch, Hamilton opened the driver's side door and stuck his head out and said, “Everything is cool here.” Hamilton said that he was living out of his car and had parked there for the night. Deputy Norris was familiar with Hamilton and knew that he had a prior methamphetamine drug conviction. Hamilton gave Deputy Norris his driver's license and insurance document.
Deputy Norris determined that Hamilton had a valid driver's license and no outstanding warrants. While he was in the patrol car, however, Deputy Norris called for a canine unit to do a “run around” of Hamilton's car.
Deputy Norris waited approximately 8 minutes for the canine handler, Officer Vaughn, to arrive. After briefly speaking to Officer Vaughn, Deputy Norris approached Hamilton and asked him to get out of his car and wait by the patrol car so the dog could sniff his vehicle. While standing at the patrol car, Deputy Norris asked Hamilton whether he had anything illegal in his vehicle. Hamilton replied, “No, go ahead and look.” Deputy Norris then responded, “Well, we're going to have the canine run around.” After the canine finished the run around, Deputy Norris and Officer Vaughn searched Hamilton's car. They discovered methamphetamine and drug paraphernalia. Prior to Officer Vaughn's arrival, Deputy Norris had not returned Hamilton's driver's license, nor did he issue Hamilton a citation for parking illegally.
Hamilton was charged with possession of methamphetamine, in violation of K.S.A.2011 Supp. 21–5706(a), a severity level 4 drug felony, and two counts of possession of drug paraphernalia, in violation of K.S.A.2011 Supp. 21–5709(b)(2), a class A nonperson misdemeanor. Hamilton's amended motion to suppress argued that waiting for the arrival of the drug dog illegally expanded the scope and duration of an otherwise valid traffic stop.
The district court found that “Deputy Norris had a legal basis to approach [Hamilton's] vehicle as it was unlawfully parked on the roadway.” But the court found that Deputy Norris lacked reasonable suspicion to expand the scope and duration of the stop, and Hamilton's consent to search was not voluntary. The district court suppressed all physical evidence and Hamilton's statements. The State filed a timely interlocutory appeal, claiming that the district court erred in granting the suppression motion.
Reasonable Suspicion
“ ‘An appellate court reviews the factual underpinnings of a motion to suppress by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment.” State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011). “Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion.’ “ State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009).
The State has the burden to demonstrate that the challenged search or seizure was lawful. State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010). The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. McMullen, 290 Kan. 1, 4, 221 P.3d 92 (2009). However, because the parties do not dispute the material facts, this suppression question is solely one of law. See State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678 (2011). Consequently, this court exercises unlimited review in determining whether Hamilton's detention was supported by reasonable suspicion.
On appeal, the parties concede that Hamilton was illegally parked on the roadway, and Deputy Norris had authority for the initial stop. The issue here is whether Deputy Norris had reasonable suspicion to extend the traffic stop. A traffic stop may not exceed the scope or duration necessary to carry out the purpose of the stop, absent reasonable suspicion that the driver is engaged in some other criminal activity.
During a traffic stop, the officer may only request a driver's license and registration, conduct a computer check, and issue a citation. State v. Thompson, 284 Kan. 763, 774, 166 P.3d 1015 (2007). “[O]nce the [computer] check confirms a proper license and entitlement to operate the car, the driver must be allowed to proceed without further delay or questioning.” State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998). Only if “during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity,” may the officer delay the driver for further investigation. 263 Kan. at 734, 952 P.2d 1276. Our Supreme Court has held that detaining a driver, even for a few minutes to allow a drug sniffing dog to arrive, unreasonably extends the detention if the officer did not need additional time to ask exploratory questions or write a citation. State v. Mitchell, 265 Kan. 238, 244–45, 960 P.2d 200 (1998).
After Hamilton's suppression hearing, the district court found:
“[I]t was clear that Deputy Norris, after determining that [Hamilton] had a valid driver's license and no active warrants expanded the investigative detention when he waited for Officer Vaughn and the canine to arrive rather than returning to [Hamilton's] vehicle to return his driver's license and issue any citation or warning.”
On appeal, the State argues that the officer had reasonable suspicion to support the continued detention. To establish reasonable suspicion, there must be a particularized and objective basis sufficient to warrant a reasonable belief that the person is involved in criminal activity. Thomas, 291 Kan. 676, Syl. ¶ 9, 246 P.3d 678. The determination of reasonable suspicion is based on the totality of the circumstances, and “no one factor is legally determinative, dispositive, or paramount. The outcome does not turn on the presence or absence of a single controlling or infallible touchstone and requires careful scrutiny of all the surrounding circumstances.” Thompson, 284 Kan. 763, Syl. ¶ 20, 166 P.3d 1015.
On appeal, the State argues that Deputy Norris knew “six distinct facts” from his initial contact with Hamilton that supported his decision to investigate Hamilton's suspected use of narcotics. During the suppression hearing, Deputy Norris testified:
“His appearance was—he was—it—is appeared to me he his eyes were shrunken in, his cheeks was shrunken in. His completion [ sic ] was not good. He was wearing a long sleeve shirt. Knowing of his priors, I thought maybe I have drug use. He's out on a dark country roadway. Many people use the roadways to do illegal things.”
The State further argues that because Deputy Norris was aware of Hamilton's previous methamphetamine use, these facts support Norris' reasonable suspicion. The State suggests that Hamilton was wearing inappropriate clothing for the weather, “a long-sleeved shirt on a summer night,” and was using the shirt to “hide fresh track marks.” Further, Hamilton “was parked illegally, alone, in a place where Norris knew drug use commonly occurs.” The State, however, fails to provide a record citation to Deputy Norris testifying to these “facts”; instead, the State provides a citation to its trial closing argument. Deputy Norris only testified that “[m]any people use the roadways to do illegal things.”
Pursuant to Supreme Court Rule 6.09 (2011 Kan. Ct. R. Annot. 49), the State filed a letter of additional authority. In this letter, the State argued that a recent decision by a panel of this court mimics “the precise issues” at appeal. In State v. Wendler, 47 Kan.App.2d 182, 247 P.3d 30 (2012), a panel of this court concluded that a traffic stop was measurably extended and the officer did not have a reasonable suspicion of illegal drug activity to lawfully extend the scope and duration of the stop. The State focuses on the court's assertion that there are no definite time limits governing traffic stops; the standard remains whether it was reasonable under the totality of the circumstances. 47 Kan.App.2d at 192, 274 P.3d 30. However, this case does support the State's argument. The Wendler court held that the stop was measurably extended for the officer to fulfill the initial purpose of the traffic stop and the total time until the officer returned Wendler's driver's license and issued a warning citation. 47 Kan.App.2d at 192–93, 274 P.3d 30.
Deputy Norris did not observe any drugs or drug paraphernalia in the car, nor did he describe any furtive movements by Hamilton. Deputy Norris did not smell illegal drugs or alcohol. Here, Deputy Norris kept Hamilton's driver's license while he called the canine unit, even though he did not have reasonable suspicion of any illegal activity. Hamilton was not free to leave. Deputy Norris' actions measurably extended the traffic stop beyond its original purpose, and he did not have a reasonable and articulable suspicion that criminal activity was taking place. See State v. Coleman, 292 Kan. 813, 816, 257 P.3d 320 (2011).
We find that the district court did not err in suppressing the evidence and correctly held that Deputy Norris did not have reasonable suspicion to extend the traffic stop.
Consent to Search
The standard of appellate review to determine the voluntariness of a consent to search is whether a reasonable person would feel free to refuse the officer's requests or otherwise terminate the encounter. Specifically, the factual underpinnings are reviewed under a substantial competent evidence standard and “the ultimate legal conclusion drawn from those facts, i.e., whether a reasonable person would feel free to refuse the requests or to terminate the encounter, is reviewed under a de novo standard.” Thompson, 284 Kan. at 776, 166 P.3d 1015. The State has the burden of establishing the scope and voluntariness of the consent to search.
For a consent to search to be valid, two conditions must be met: “(1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied.” Thompson, 284 Kan. at 776, 166 P.3d 1015.
On appeal, the State argues that there was clear and positive testimony that the consent to search was freely given. When Deputy Norris asked Hamilton whether he had anything illegal in his car, Hamilton replied, “No, go ahead and look.” The State argues that
“[t]his response is unequivocal—[he] cannot reasonably be understood to mean anything except that Norris had permission to search. It was specific because Norris was obviously asking Hamilton about the vehicle. And it was freely given because Norris had not even asked whether he could search the car; Hamilton suggested that outcome.”
The facts do not lead to this conclusion. Deputy Norris instructed Hamilton to exit his vehicle and stand next to the patrol car. Further, Deputy Norris never returned Hamilton's driver's license and did not tell him he was free to leave. Hamilton was never issued a traffic citation nor informed that he was going to be issued a ticket. In suppressing the evidence, the district court found that Hamilton's consent was not voluntary “due to the unlawful expansion of the scope of the traffic stop.”
The State contends that Hamilton's consent was obviously voluntary because “Hamilton suggested the search a second time after Vaughn completed the dog sniff.” After the canine unit completed its run around, Norris asked, “Anything illegal in your car?” Hamilton responded, “No, go ahead and look.”
However, whether an encounter is consensual depends on whether, viewed under the totality of the circumstances, a reasonable person would feel free to refuse the request and terminate the encounter. State v. Pollman, 286 Kan. 881, 887, 190 P.3d 234 (2008). Because this analysis is fact-driven and specific, there is no exclusive or definitive list of factors that should be considered when determining if an encounter was consensual or a seizure. State v. White, 44 Kan.App.2d 960, 966, 241 P.3d 591 (2010). Factors tending to establish that an encounter was consensual include: “knowledge of the right to refuse, a clear communication that the driver is free to terminate the encounter or refuse to answer questions, return of the driver's license and other documents, and a physical disengagement before further questioning.” Thompson, 284 Kan. at 811, 166 P.3d 1015.
The State briefly suggests that because Deputy Norris and Hamilton were familiar with each other, the encounter was voluntary. However, there is ample evidence to show that this was not voluntary. As previously stated, Hamilton was not given a traffic citation to justify the initial stop. Deputy Norris did not return Hamilton's driver's license and insurance document or even allow Hamilton to return to his vehicle until after the canine unit arrived. Hamilton was never told that he was free to leave. Based on the totality of the circumstances, the district court did not err in finding that Hamilton's consent was not voluntary.
Affirmed.