Opinion
No. 108,835.
2013-06-7
STATE of Kansas, Appellant, v. Ruby BYERLY, Appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge. Vernon E. Buck, assistant county attorney, Amy L. Aranda, acting county attorney, and Derek Schmidt, attorney general, for appellant. Nicholas J. Heiman, of Miller & Heiman, Chtd., of Emporia, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Vernon E. Buck, assistant county attorney, Amy L. Aranda, acting county attorney, and Derek Schmidt, attorney general, for appellant. Nicholas J. Heiman, of Miller & Heiman, Chtd., of Emporia, for appellee.
Before Leben, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
The State appeals from the district court's decision granting Ruby Byerly's motion to suppress. Specifically, the State contends that the district court erroneously applied a probable cause standard to the question of whether it was reasonable to detain Byerly until a drug dog arrived to search her pickup truck. Although it is true that an officer needs only a reasonable and articulable suspicion of criminal activity to prolong a traffic stop, we conclude that the State failed to establish that the deputy in this case had a particularized and objective basis to detain Byerly after she refused to consent to a search of her vehicle. Thus, we affirm the district court's decision to grant Byerly's motion to suppress.
Facts
At 8:44 p.m. on July 11, 2012, Lyon County Sheriff's Deputy Heath Samuels initiated a stop of a pickup truck on I–35 in Lyon County because he saw a bandana hanging from the vehicle's rearview mirror that he believed was obstructing the driver's view. Sarah Wolf, who is not a party to this appeal, was driving the pickup at the time of the traffic stop. Byerly, who owned the pickup, was sitting in the passenger seat.
During the stop, Deputy Samuels observed that Byerly was nervous. According to the deputy, Byerly's voice cracked when she talked. Deputy Samuels also noted that Byerly was fidgety and her hands shook to the point where she had difficulty giving her driver's license to him when he asked for identification.
Deputy Samuels asked Wolf and Byerly separately where they were going and what they were planning on doing. Wolf told the deputy that she and Byerly were going to Kansas City to shop. Although Wolf said she and Byerly would stay the night in Kansas City, she did not tell him where they would be staying. Byerly also told Deputy Samuels that they were going shopping in Kansas City. Additionally, Byerly told the deputy that she and Wolf were going to stay the night with her cousin.
Even though he did not issue a citation for the bandanna hanging from the rearview mirror, Deputy Samuels arrested Wolf for driving on a suspended driver's license. The deputy then gave Byerly her driver's license back and told her she was free to leave. As Byerly opened the pickup door to leave, Deputy Samuels asked her if she would talk to him, and she agreed. The deputy then stated that he thought the answers he had been given by Byerly and Wolf were suspicious.
Deputy Samuels then asked Byerly if he could search her pickup truck. After Byerly denied his request, the deputy told Byerly he was going to call a K–9 unit to come search the vehicle. Deputy Samuels also told Byerly that her name had “been coming up a lot in drug investigations in Emporia.” Approximately 16 minutes later, the K–9 unit arrived.
When the drug dog alerted the officers that there may be drugs in the pickup, Deputy Samuels placed Byerly in handcuffs, and she admitted that a meth pipe was in her bra. While searching the pickup, Deputy Samuels found “different increments of money” and a small pipe with burnt vegetation that field-tested positive for marijuana. After being transported to jail, Byerly was searched again and an officer found a baggie containing a white crystal substance that was later determined to be methamphetamine.
Byerly was ultimately charged in an amended complaint with one count each of cultivating, distributing, or possessing methamphetamine with the intent to distribute; possession of marijuana; possession of drug paraphernalia with the intent to use; possession of drug paraphernalia with the intent to distribute, manufacture, or cultivate drugs; introducing or attempting to introduce marijuana into a correctional institution; and no drug tax stamp. Prior to trial, Byerly filed a motion to suppress in which she argued that the traffic stop was illegal, that she did not consent to continued contact with the deputy after the initial purpose of the traffic stop ended, and that the deputy lacked reasonable suspicion to detain her for a K–9 search.
The district court held a hearing on the motion on October 3, 2012. At the hearing, the State played a video recording of the traffic stop and presented the testimony of Deputy Samuels. The deputy testified that drugs are frequently transported up and down I–35. He also testified on cross-examination that he suspected that Byerly was involved in criminal activity based on her nervousness and her answers to his questions. On redirect examination, the deputy added that his suspicion of illegal activity also was based on the fact that Byerly was going to Kansas City and the fact that her name had come up in drug investigations in Emporia.
In granting Byerly's motion to suppress, the district court found that the traffic stop was legal based on a perceived violation of K.S.A. 8–1741. But as to the encounter that occurred between Deputy Samuels and Byerly after she had been told she was free to leave, the district judge found:
“That was the consensual encounter of a few minutes, but no really new information was gleaned during that period of time. It was just a rehash of the same old thing as far as the stones go and she denied that she's been involved in drugs or denying that she's using or has any knowledge of drugs in the vehicle.
....
“What was done here was a search based upon reasonable—a delay based upon reasonable suspicion. Once she said no, with no additional information, I think he has to let her go. He didn't do that. He waited to try to find probable cause 16 minutes later, which is too late and, therefore, the motion to suppress is granted, which would mean that any information that came from that arrest and search is suppressed, which would include not only anything that's found in the vehicle, but also anything that might have been hidden on her person because she would not have gone to jail and they would not have found that but for the illegal search and arrest.”
Following the filing of a journal entry on October 12, 2012, the State appealed to this court.
Analysis
On appeal, the State contends that the district court erred in granting Byerly's motion to suppress. In reviewing a district court's decision on a motion to suppress, we use a bifurcated standard. Without reweighing the evidence, we must determine whether the district court's findings are supported by substantial evidence. If so, we then conduct a de novo review of the district court's legal conclusion. See State v. Sanchez–Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012).
There are four types of encounters between a member of the public and law enforcement officers: consensual encounters, which are not considered seizures; investigatory detentions, commonly known as Terry stops (after Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968], and codified in K.S.A. 22–2402); public safety stops; and arrests. See State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). A traffic stop is considered to be a seizure—analogous to an investigatory detention—under the Fourth Amendment to the United States Constitution. 284 Kan. at 773. As a general rule, the length of detention during a traffic stop may not exceed the duration necessary to carry out the purpose of the traffic stop. 284 Kan. at 774.
The Kansas Supreme Court has found that it is appropriate for a law enforcement officer to make inquiries and to take action unrelated to the initial purpose of a traffic stop as long as the additional inquiries do not measurably extend or prolong the stop. See State v. Coleman, 292 Kan. 813, 816, 257 P.3d 320 (2011). If an officer's additional inquiries or actions measurably extend a traffic stop, the officer must have an objectively reasonable and articulable suspicion that criminal activity has taken or is taking place. 292 Kan. at 816. Thus, a law enforcement officer may not arbitrarily detain a person in order to procure a drug-sniffing dog. 292 Kan. at 823.
In Coleman, the Kansas Supreme Court held:
“Reasonable suspicion is a less demanding standard than probable cause and requires a showing of considerably less than a preponderance of the evidence, but the Fourth Amendment to the United States Constitution requires at least a minimal level of objective justification. The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion’ or ‘hunch’ of possible criminal activity. [Citations omitted].
“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. State v. DeMarco, 263 Kan. 727, 734–35, 952 P.2d 1276 (1998), 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. United States v. Sokolow, 490 U.S. 1, 10, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989). 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 .’ “ United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). 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.
Here, there is no dispute regarding the reasonableness of the initial traffic stop. Rather, the issue presented is whether the officer had reasonable suspicion to measurably extend the stop so that a drug dog could perform an exterior search of Byerly's pickup truck. In deciding this issue, we must consider the totality of the circumstances surrounding the stop. In other words, we must determine if the totality of the circumstances justified the deputy's detention of Byerly while he waited on a K–9 unit to respond.
As the State points out, it appears from the record that the district court applied a probable cause—instead of a reasonable and articulable suspicion standard—to determine whether the deputy had a sufficient factual basis to detain Byerly after she refused to consent to a search of her pickup truck. Nevertheless, this error does not require reversal of the district court's decision because the issue of whether reasonable suspicion exists involves a question of law over which our review is unlimited. See Coleman, 292 Kan. 813, Syl. ¶ 4.
A review of the record reveals that Byerly was detained for approximately 16 minutes awaiting the arrival of the drug dog after she refused to consent to a search of her pickup truck. In total, approximately 25 minutes passed between the time of the initial traffic stop and the time the drug dog alerted the officers to the likely presence of drugs. Accordingly, we conclude that there is substantial evidence in the record to support a finding that the deputy's actions measurably extended or prolonged the traffic stop beyond the time reasonably required to complete its initial purpose.
Although we must take into consideration a law enforcement officer's training to distinguish between innocent and suspicious behavior, an officer must be able to articulate more than a hunch that criminal activity was involved. See State v. Thomas, 291 Kan. 676, 687–88, 246 P.3d 678 (2011). In the present case, Deputy Samuels suspected that Byerly was involved in illegal drug activity. The deputy based his suspicion on inconsistent stories given by Byerly and Wolf regarding their travel plans for the evening, on Byerly's nervousness, and on the fact that Byerly's name previously was mentioned in relationship to drug investigations in Emporia.
Unusual or inconsistent travel plans, in combination with other factors, can contribute to reasonable suspicion justifying further investigation by a law enforcement officer. See State v. Morlock, 289 Kan. 980, 994–95, 218 P.3d 801 (2009). Here, the travel plans articulated by Wolf and Byerly were not significantly inconsistent. Both women stated they were going to Kansas City to shop and that they were spending the night. While Wolf did not know where they were going to stay in Kansas City, Byerly stated they were going to spend the night with her cousin. Although Deputy Samuels did not see any luggage in the pickup, it is not unusual for someone to pack lightly for a short overnight trip. Moreover, the deputy testified that it was not unusual for people to take I–35 from Emporia to Kansas City to go shopping.
Further, Deputy Samuels testified that Byerly appeared to be nervous during the traffic stop. Certainly, nervousness is a factor that can be considered along with other circumstances in a reasonable suspicion analysis. But nervousness “should be considered with caution in light of the fact that most individuals are likely to exhibit some signs of nervousness when confronted by police.” State v. Gross, 39 Kan.App.2d 788, 807–08, 184 P.3d 978 (2008) (citing State v. DeMarco, 263 Kan. 727, 735–37, 952 P .2d 1276 [1998] ).
Finally, Deputy Samuels testified he was suspicious because Byerly's name had somehow been mentioned during previous drug investigations in Emporia. See United States v. Artez, 389 F.3d 1106, 1115 (10th Cir.2004) (criminal history may be considered along with other factors in determining if there was reasonable suspicion of a crime). Unfortunately, Deputy Samuels did not articulate how Byerly's name had come up in investigations. Likewise, he did not articulate how this fact led him to suspect that Byerly was in the possession of drugs at the time of the traffic stop.
We also find it to be significant that Deputy Samuels obtained most—if not all—of the information he relied upon as a justification for the prolonged encounter before he told Byerly she was free to leave. Furthermore, the deputy candidly admitted at the suppression hearing that he told Byerly she was free to go because he had no reason to hold her at that point. Consequently, we find that the deputy did not have a legitimate reason to detain Byerly or otherwise measurably prolong the traffic stop.
Accordingly, we conclude that Deputy Samuels lacked an objectively reasonable and articulable suspicion that specific criminal activity was taking place. Hence, he was not justified in extending the traffic stop or detaining Byerly while he investigated other possible crimes. Therefore, we affirm the district court's suppression of the evidence seized as a result of the search following Byerly's refusal to consent to the search of her pickup truck.
Affirmed.