Opinion
No. 111282.
07-31-2015
STATE of Kansas, Appellee, v. Gerald E. CLEVERLY, Jr., Appellant.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Joseph M. Penney, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Joseph M. Penney, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, PJ., HILLS and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Gerald Eugene Cleverly, Jr., appeals from the district court's decision denying his motion to suppress evidence. After stopping a pickup truck in which Cleverly was the passenger, officers obtained the driver's consent to search the truck. An officer asked Cleverly to exit the vehicle and wait while another officer performed the search. When Cleverly exited the vehicle, an officer patted him down but did not find anything. During vehicle search, officers found a pipe typically used for smoking methamphetamine and arrested the driver. An officer then asked Cleverly for consent to search his person, and he consented. After this search revealed nothing, the officer asked Cleverly if he could search the personal items he had removed when he got out of the pickup truck. Cleverly again consented to the search. This time, however, the officer found small baggies of methamphetamine inside a cigarette pack belonging to Cleverly.
On appeal, Cleverly contends that he was illegally detained while the officers conducted the search of the pickup truck, so the consent he later gave for the search of his personal items was illegally obtained. As a result, he argues that the evidence found in the cigarette pack should have been suppressed. We find, however, that Cleverly was not illegally detained while the officers conducted the search of the vehicle because the driver had provided valid consent allowing them to conduct the search. Furthermore, the totality of the circumstances leads to the conclusion that a reasonable person in Cleverly's situation would have felt free to leave or, at least, to decline the officer's requests to search his person and his property. Additionally, Cleverly's argument that the officer's pat-down search was illegal does not result in a reversible error because the search that led to the discovery of illegal drugs was sufficiently attenuated. We, therefore, affirm the district court's denial of Cleverly's motion to suppress.
Facts
At approximately 1:15 a.m. on January 30, 2012, El Dorado Police Officer Brent Michael Buckley observed a blue pickup truck with two occupants driving on a city street; neither occupant was wearing a seatbelt. Officer Buckley, therefore, initiated a traffic stop of the truck. El Dorado Police Officer Sam Humig was on patrol that night and arrived as backup for Officer Buckley.
After the truck stopped, both passengers began making what Officer Buckley described as furtive movements. When Officer Humig arrived, Buckley was talking to the occupants through the passenger side of the truck. Buckley then asked Humig to assist him by identifying the passenger for a seatbelt ticket. Buckley identified the driver as Chris Jones. Humig spoke to the passenger—who was not wearing a seatbelt at that time—and identified him as Cleverly. Dispatch informed the officers that Cleverly had no wants or warrants.
Officer Buckley issued Jones a ticket for having no proof of insurance. Officer Buckley “had him sign the ticket and handed him the ticket[, a]nd asked him if he had time for a couple more questions.” At that point, Buckley requested “to perform a consent search on the vehicle,” and he was “able to perform a consent search.” The officers had Jones and Cleverly exit the vehicle while they searched it. Because of the way Cleverly was wearing his shirt, Humig could not see Cleverly's waistband to determine if he had a weapon, so Humig patted down Cleverly. He found no weapons or anything illegal during the pat down. At the suppression hearing, Humig testified that at that time, Cleverly had not been detained for any reason other than the seatbelt violation. When Cleverly got out of the truck, he took with him a couple of cigarette packs, a cell phone, and another item and set them on the hood of Humig's patrol car.
While searching the truck, Officer Buckley found a hollow glass tube with scorch marks on it that he recognized as something typically used to smoke methamphetamine or other drugs. Buckley collected the item and arrested Jones. At some point during the stop, Cleverly asked if he could make a phone call, and Officer Humig apparently told Cleverly that he could use his phone as soon as the officers were done searching.
After finding the pipe in the truck, Officer Humig asked Cleverly if he had any drugs or controlled substances on him; Cleverly responded that he did not. Cleverly then consented to a search of his person, which was more thorough than the initial pat down, and Humig found nothing illegal during that search. Humig then asked if he could search the items Cleverly took from the truck. Cleverly handed Humig the cigarette packages. Inside one of the cigarette packages, Humig found three plastic bags that, based on his training experience, contained a crystal-like substances that appeared to be methamphetamine. Humig arrested Cleverly.
On January 30, 2012, the State charged Cleverly with one count of possession of methamphetamine and one count of possession of drug paraphernalia, which was described as the cigarette box and baggies. On June 26, 2012, Cleverly filed a motion to suppress the results of the search of his person and property. Cleverly argued that the vehicle stop was pretextual; that he was illegally detained after the stop; and that his alleged consent, therefore, could not purge the taint of the prior illegal detentions.
On August 20, 2012, the district court held a hearing on the suppression motion, during which Officers Humig and Buckley testified for the State. Cleverly presented no evidence. During the hearing, Officer Buckley testified that even though it was dark when he first observed the truck, his patrol vehicle's lights illuminated the truck, so he could see the truck's seatbelts hanging next to the windows and not across the driver's chest.
After hearing the parties' arguments, the district court determined that the officers gave a valid reason—the seatbelt violation—for stopping the truck. The district court determined that Jones did not have a driver's license or any information that would allow the officers to terminate the encounter quickly, and, more importantly, Jones did not have proof of insurance, which was a misdemeanor and a basis for an arrest and further investigation. As for the pat-down search upon Cleverly's initial exit of the vehicle, the district court found that the officer had concerns for his safety, but more importantly, there were no fruits of the search to suppress. The pipe was then found rather quickly during the search, and that gave the officers “reasonable grounds to ask for consent to search” Cleverly's person. The district court found that there “was a sufficient break” between the basis for the pat-down search and the casual conversation that occurred between Cleverly and Officer Humig afterward. After noting that Cleverly consented to the search of his person, which also did not reveal any incriminating evidence, the district court determined that Cleverly voluntarily handed the items, including the cigarette packs, to the officer.
In conclusion, the district court stated:
“[T]here was a reasonable, articulable basis for ... the initial officer to stop the vehicle and for the request for a consent to search Mr. Cleverly. And subsequently his items that resulted in the seizure of items that ... ultimately were found to be illegal in nature. So the Court denies the motion to suppress. And we will set this matter for jury trial.”
On November 9, 2012, the State amended the complaint, dismissing the charge of possession of drug paraphernalia, and Cleverly proceeded to a bench trial on stipulated facts. The district court found Cleverly guilty of possession of methamphetamine. Although Cleverly stipulated to the facts that supported his conviction, he maintained his objection to the search that led to the discovery of the contraband in order to preserve it for appellate review. On January 10, 2013, the district court sentenced Cleverly to 18 months of probation with an underlying 15–month prison sentence. Cleverly timely filed a notice of appeal.
Analysis
On appeal, Cleverly contends that the district court erred in denying his motion to suppress the evidence collected from the cigarette box. We apply a bifurcated standard when reviewing a district court's decision on a motion to suppress. Initially, we review the district court's factual findings to determine if they are supported by substantial competent evidence. Then, we review the ultimate legal conclusion using a de novo standard. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). Cleverly maintains that the material facts are undisputed and that he is only asking us to consider legal questions related to the lawfulness of the extended detention and consent. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014) (stating that when material facts are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review).
The State bears the burden of proof when a defendant has filed a suppression motion. It must prove the lawfulness of the search and seizure. Reiss, 299 Kan. at 296. The district court determined that the seatbelt violation justified the initial traffic stop and that the officers had a reasonable and articulable basis to request Cleverly's consent to search his person and belongings.
Cleverly does not take issue with the district court's finding that the initial stop was lawful, and a review of the record reveals there is substantial competent evidence to support the district court's finding that Officer Buckley observed Jones not wearing his seatbelt. This provided Officer Buckley with reasonable suspicion to believe a traffic infraction was being committed. See State v. Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014) (stating that stopping a vehicle on a public roadway constitutes a seizure within the meaning of the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, so in order for the stop to be constitutionally reasonable, 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).
Instead, Cleverly argues that the pat-down search Officer Humig performed was illegal and that he was illegally detained from the time the traffic stop ended until he consented to the search of his cigarette pack. He then claims that the evidence found after he consented to the search should be suppressed because his consent was tainted by the prior illegalities.
Any warrantless search or seizure is presumptively unreasonable unless it falls within one of Kansas' recognized exceptions to the search warrant requirement. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014) ; State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010). A traffic stop is justified as an investigatory detention when it is 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). However, the scope and duration of the seizure must be strictly tied to and justified by the circumstances that rendered its initiation proper. Terry, 392 U.S. at 19 ; State v. Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990). Here, Officer Humig's request for consent to search exceeded the scope and duration of the traffic stop, so it had to have been based on another exception in order to be legal.
Another exception is when the subject of the search provides voluntary, knowing, and intelligent consent. State v. Edgar, 296 Kan. 513, 526, 294 P.3d 251 (2013) ; see State v. James, 301 Kan. 898, 349 P.3d 457, 465 (2015). Additionally, voluntary encounters are not considered seizures and do not trigger Fourth Amendment protections. State v. Williams, 297 Kan. 370, 376, 300 P.3d 1072 (2013). A review of the record reveals that the traffic stop became a voluntary encounter after Officer Buckley had Jones sign the ticket he wrote him for failing to have proof of insurance, handed him the ticket, and then asked him if he had time for more questions.
When Jones agreed to listen to the officer's subsequent questions, the encounter became voluntary. It then became a consensual encounter when Jones agreed to let the officers search the truck. See State v. Murphy, 296 Kan. 490, 492, 293 P.3d 703 (2013) (stating that an encounter continued after a traffic stop has ended “will be deemed consensual if under the totality of the circumstances the officer's conduct conveys to a reasonable person that he or she was free to refuse the request or otherwise terminate the encounter”); State v. Spagnola, 295 Kan. 1098, Syl. ¶ 3, 289 P.3d 68 (2012) (“A police officer may extend the length of a traffic stop for questioning beyond the initial purpose of the traffic stop if the officer has an objectively reasonable and articulable suspicion that illegal activity has occurred or if the driver voluntarily consents to further questioning.”).
Cleverly does not argue that these exceptions are inapplicable. Furthermore, a passenger in a vehicle “is seized for Fourth Amendment purposes when a law enforcement officer stops the vehicle through a show of authority and the passenger does not flee.” State v. Smith, 286 Kan. 402, 408, 184 P.3d 890 (2008) (citing Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 [2007] ). Thus, it follows that the passenger's presence becomes voluntary or consensual once the driver gives consent or voluntarily remains on the scene after the traffic stop concludes.
There is nothing in the record indicating specifically how much time passed from the time the truck was stopped until Cleverly's arrest. Cleverly contends that he asked to use his cell phone to make a call and Officer Humig denied his request until the officers were done searching. The evidence regarding a requested phone call came in during Officer Humig's cross-examination. Defense counsel asked Officer Humig if Cleverly asked to make a phone call, and Humig testified that he did not recall. Defense counsel suggested that Cleverly may have requested to make a phone call 18 minutes into the stop, and Humig stated that was probably right. The video recording of the stop, however, was not admitted into evidence.
There were three officers at the scene, but there was no testimony that there was a threatening presence of several officers. None of the officers were displaying their weapons. There was no testimony of any physical touching of Cleverly while he waited, use of aggressive language or tone of voice indicating that Cleverly must comply with an officer's request, prolonged retention of Cleverly's identification, request to accompany the officer somewhere, interaction in a nonpublic place, absence of other members of the public, or display of emergency lights. See Murphy, 296 Kan. at 493. Officer Humig testified that his vehicle's emergency lights were not on. Under these circumstances, we conclude that Cleverly was not detained but voluntarily remained with the officers while they conducted the search to which Jones consented.
After Jones consented to the search of the truck, the next thing that occurred was Officer Humig's pat-down search of Cleverly's person. Cleverly argues that the pat-down search was illegal. Cleverly did not consent to this search, but Officer Humig testified that it was done for the officers' safety. “In order to justify a pat-down search of a driver or a passenger during a traffic stop, the police officer must harbor reasonable suspicion that the person subjected to the search is armed and dangerous.” Spagnola, 295 Kan. at 1106 (citing Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d 694 [2009] ).
The State does not contend that Officer Humig believed Cleverly was armed and dangerous. The State, however, argues that the pat-down search was justified by Officer Humig's testimony that Cleverly's clothes made it impossible for him to see if Cleverly had a weapon. Additionally, the State notes the fact that the stop occurred late at night, Officer Buckley saw furtive movements after he stopped the truck, and there was testimony that law enforcement had had previous “run-ins or circumstances” with the truck. Although this search did not result in any evidence that could be suppressed, Cleverly contends that the illegal pat-down search “began an illegal interaction with Mr. Cleverly that ultimately resulted in the search of his cigarette packages.”
The officers' testimony did not provide reasonable suspicion that Cleverly was armed and dangerous. Although Officer Buckley testified that he had had previous encounters with occupants of this particular truck, he did not testify whether the encounters resulted in finding armed and dangerous passengers. And none of the other factors noted by the State create a reasonable suspicion that Cleverly was armed and dangerous.
Nevertheless, this search did not result in finding any illegal contraband. The contraband that Cleverly seeks to suppress was found later during a search to which Cleverly consented. The next step, therefore, is to determine whether the attenuation exception to the exclusionary rule applies. The doctrine of attenuation provides that “ ‘ “the poisonous taint of an unlawful search or seizure dissipates when the connection between the unlawful police conduct and the challenged evidence becomes attenuated.’ “ [Citations omitted.]” State v. Talkington, 301 Kan. 453, 484, 345 P.3d 258 (2015). “ ‘Whether the taint of a prior illegality has been purged by sufficient attenuation between the unlawful conduct and the discovery of the challenged evidence is a question of fact we review under a substantial competent evidence standard.’[Citation omitted.]” 301 Kan. at 483.
When evidence would not have been found absent illegal actions of the police, the relevant question is whether the allegedly tainted evidence was discovered through exploitation of that illegality or was it discovered by means sufficiently distinguishable to be purged of the primary taint. 301 Kan. at 484.
We consider the following factors when deciding whether law enforcement officers obtained allegedly tainted evidence through exploitation of an illegality:
“ ‘(1) the time that elapsed between the illegality and the acquisition of the evidence sought to be suppressed, (2) the presence of any intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. [Citations omitted.] But no one factor is controlling, and other factors also may be relevant to the attenuation analysis.’ “ 301 Kan. at 484 (quoting State v. Williams, 297 Kan. 370, 381, 300 P.3d 1072 [2013] ).
Here, we do not need to consider the above-mentioned factors because we cannot say that the evidence would not have been found absent the allegedly illegal actions of the police. Officer Humig's pat-down search of Cleverly did not convert the voluntary encounter into a detention. Moreover, we cannot say that but for the pat-down search, the contraband in Cleverly's cigarette case would not have been found.
Even if we apply the attenuation factors, however, it is clear that the evidence Cleverly wishes to suppress was sufficiently attenuated from the pat-down search. Although it is not clear exactly how much time elapsed between the pat-down search and Officer Humig finding drugs in Cleverly's cigarette pack, some time passed while Officer Buckley searched the truck. More importantly, though, after Officer Humig patted down Cleverly, Officer Buckley found drug paraphernalia in the truck in an area that Cleverly had access to, which created an intervening circumstance further attenuating the illegal drugs from the pat-down search.
Finally, even if the pat-down search was technically illegal, it was not flagrant and the purpose of the pat-down search—officer safety—was valid, even if it was not supported by reasonable suspicion that Cleverly was armed and dangerous. Accordingly, we conclude that the pat-down search did not result in finding any illegal contraband, and we find that it was sufficiently attenuated that it did not taint the consent Cleverly eventually gave to search his cigarette pack containing contraband.
We find that the totality of the circumstances leads to the conclusion that after the purpose for the traffic stop had concluded, Cleverly remained with law enforcement as part of a voluntary encounter. We also find that a reasonable person in Cleverly's situation would have felt free to leave or at least free to decline Officer Humig's requests to search his person and his personal property. See Murphy, 296 Kan. at 492. Additionally, even if the pat-down search was illegal, it was sufficiently attenuated that it did not taint the consent Cleverly eventually gave to search his cigarette pack containing contraband.
We, therefore, affirm the district court's denial of Cleverly's motion to suppress.
Affirmed.