Opinion
No. 108,077.
2013-08-2
STATE of Kansas, Appellee, v. Justin W. McGONIGLE, Appellant.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Justin W. McGonigle appeals his driving under the influence (DUI) conviction raising three issues—the first and determinative issue being the denial of his motion to suppress. We find the stop by the officer occurred on a hunch, without reasonable suspicion, and the motion to suppress was incorrectly denied. We reverse and remand.
Facts
Stipulated Facts of Traffic Stop, DUI Arrest, and Trial
McGonigle was charged with unlawfully operating or attempting to operate a motor vehicle while under the influence of alcohol to the extent he was incapable of safely operating said vehicle, contrary to K.S.A. 8–1567(a)(3), (f) or (g). The parties tried the matter to the district court on stipulated facts. We see no need to restate the stipulated facts as they are not essential to our decision except to note the other officer responding to the alarm did not stop McGonigle. The district court denied the motion to suppress and found McGonigle guilty of DUI based upon the stipulated facts. The record reflects McGonigle was previously convicted of DUI on January 31, 2003, in the City of Wichita, Municipal Court in Case No. 01TM17250, and on August 25, 2003, in the Eighteenth Judicial District Court in Case No. 03TR4575. Motion to Suppress
McGonigle's motion to suppress challenged the reasonableness of the traffic stop. Officer Branden Stitt, the arresting officer, was the only witness to testify. Stitt testified he was on patrol at around 2:30 a.m. on May 10, 2010, when he responded to an audible business alarm for a possible burglar. Stitt saw McGonigle's vehicle on the public road, and it was traveling away from where the alarm was reported. Stitt testified it was just under 5 minutes from the time he was en route to assist on the alarm until the time he contacted the driver, McGonigle. The record contains no evidence how long the alarm was going off before he decided to assist the other officer investigating why the alarm triggered.
When asked why he stopped the vehicle, Stitt responded that while there were no problems with burglaries in the area, his experience was burglaries normally happen late at night because people are asleep. The entrance to the site of the burglary was within 1180 feet from the roadway upon which the vehicle turned, and it was the only vehicle on the roadway. Stitt testified this vehicle caught his attention. The business with the activated alarm was a sandpit that had heavy equipment and tools. Because the vehicle Stitt saw was a pickup truck without a bed cover, he believed it was possible the vehicle may have been concealing stolen tools.
Upon contacting McGonigle, Stitt explained why he stopped him and told McGonigle the police had received an audible alarm at the sandpit. Stitt asked McGonigle where he was coming from and received an unclear answer. Upon further questioning, it became clear McGonigle was coming from a different sandpit. Stitt observed the odor of alcohol and other indicators and proceeded with a DUI investigation resulting in McGonigle's arrest.
Upon cross-examination, Stitt admitted he was not specifically dispatched to the alarm but volunteered to assist. Stitt also testified another police officer was present at the scene, but the other officer did not pull over the vehicle. Stitt confirmed he did not know where the vehicle was coming from at the time of the stop, and there was nothing in the bed of the truck. When asked to summarize his belief regarding why he made a stop, Stitt stated the time, the lack of other vehicles in the area, and the vehicle's proximity to the audible alarm were his reasons for the stop. Stitt admitted audible alarms can be false calls.
The district court noted on the motion to suppress an alarm had been triggered, it was in the middle of the night, McGonigle's vehicle was in the vicinity, and it was the type of vehicle able to take contraband from the business. The district court ruled Stitt had a reasonable belief to make the stop and therefore denied McGonigle's motion, noting it was a close call. Trial and Sentencing
At the ensuing trial, McGonigle renewed his motion to suppress to a different judge. The district court ruled the standard was reasonable suspicion, not probable cause. Because reasonable suspicion is a lower standard, the district court refused to overturn the prior ruling of a different judge. However, the district court again noted the fact pattern was a close call. McGonigle was subsequently convicted at a bench trial and timely appeals.
Analysis
Standard of Review on Motion to Suppress
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). The State bears the burden of proof for a suppression motion. It must prove to the district court the lawfulness of the search and seizure. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
Both parties identified this traffic stop as a Terry stop. Under Terry v. Ohio, an officer may detain any person in a public place if the officer has reasonable suspicion based on articulable facts that a crime has been, is being, or is about to be committed. 392 U.S. 1, 21–22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Kansas courts have defined reasonable suspicion as a particularized and objective basis for suspecting the person stopped is involved in criminal activity. “Something more than an unparticularized suspicion or hunch must be articulated.” However, the level of certainty is less than that of probable cause. Reasonable suspicion depends on the content of information possessed by the detaining authority and the information's degree of reliability. Both quantity and quality of information are considered in the totality of the circumstances. State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 (1999).
McGonigle argues each fact in this case is insufficient to create reasonable suspicion. In regards to the automated alarm, McGonigle argues there was no evidence regarding how the alarm was triggered, how long the alarm had been triggered, or even if the alarm signified a crime. The mere fact McGonigle was in the area was insufficient grounds to justify a stop, as shown by State v. McKeown, 249 Kan. 506, 819 P.2d 644 (1991).
In McKeown, the Supreme Court affirmed the suppression of evidence obtained after a traffic stop based only upon an anonymous tip that there was an unfamiliar vehicle in the area of a party, and the party could not determine what the vehicle was doing in the area. 249 Kan. at 515. The court ruled that without suspicion of wrongful activity, there was no justification for the stop. McKeown, 249 Kan. at 515. McGonigle argues the lack of proof the alarm signified criminal activity and the fact his own actions did not create any suspicion of criminal activity fails to provide reasonable suspicion for the stop.
McGonigle also argues Stitt's belief the pickup truck could have been used to haul equipment from the site of the alarm lacked justification. McGonigle asserts a topper on the bed would have been more suspicious, and it was obvious there were no large items sticking up in the back of the pickup truck. McGonigle also claims once Stitt pulled behind the pickup truck and saw nothing, any reasonable suspicion would have been negated. We can find no Kansas cases supporting the State's position that the type of vehicle would justify reasonable suspicion.
A broader search of caselaw reveals the U.S. Supreme Court has upheld aspects of the vehicle itself in justifying reasonable suspicion in cases involving smuggling of illegal immigrants. United States v. Brignoni–Ponce, 422 U.S. 873, 884–885, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (holding district court erred in opining that it would not be proper to assign weight to the type of vehicle the defendant was driving because this approach does not allow agents to draw on their own experience and specialized training). In addition, at least one other court has discussed aspects of the vehicle itself in a setting that does not involve border patrol. See State v. Lawson, 929 S.W.2d 406, 408 (Tenn.Crim.App.1996) (holding that aspects of a vehicle itself can be considered by law enforcement in determining reasonable suspicion in the case of a vehicular stop).
This panel recognizes other courts have upheld the use of aspects of the vehicle itself as a factor in determining reasonable suspicion; however, those cases are distinguishable from the facts of this case and provide us no guidance. There was nothing special about this pickup truck other than it was a pickup truck. The reality is, according to Stitt's standard, any vehicle could carry stolen property and meet his standard.
Next, McGonigle argues time of day alone is not a suspicious factor. In State v. Maybin, 27 Kan.App.2d 189, 201, 2 P.3d 179,rev. denied 269 Kan. 938 (2000), the court held the time of day and reports of crime in the area will not “in and of themselves justify a Terry stop.” However, the court reaffirmed that location, time of day, previous reports of crime in the area, and furtive actions by the defendant could justify a stop. Maybin, 27 Kan.App.2d at 201. McGonigle argues he presented no furtive actions. Additionally, Stitt acknowledged this was not an area where crimes were regularly reported and there was no evidence a crime had occurred (only an alarm was sounding) in the area prior to the stop. Without additional factors to justify a stop, Maybin supports McGonigle's argument there was no reasonable suspicion to make a stop based on the time of the day alone.
Finally, McGonigle argues the evasive answers he gave Stitt during the stop are irrelevant. He is right. The State concedes McGonigle's nervous behavior occurred after the traffic stop had commenced and cannot be a part of this analysis.
McGonigle argues none of the facts, individually or added together, provide sufficient justification for a Terry stop and his Fourth Amendment rights were violated. There was no evidence an actual crime was committed, no suspect or vehicle description was articulated, and his “dumb luck” for being in the area of the alarm fails to create reasonable suspicion. Further, it is unclear from the record how long the alarm had been going off before McGonigle was stopped within 1180 feet of the business.
However, reasonable suspicion is not determined on a fact by fact basis; it is considered in the totality of the circumstances. Toothman, 267 Kan. 412, Syl. ¶ 5. The State claims, when viewed in light of the totality of the circumstances, the vehicle stop was supported by reasonable suspicion.
The State argues the activated alarm, even if a false alarm, distinguishes these facts from the appellant's comparison to McKeown. When the alarm activated Stitt had an indication of illegal activity, which was not the case in McKeown.
The State draws our attention to State v. Walker, 292 Kan. 1, 251 P.3d 618 (2011). In Walker, police responded to an automobile burglary. The suspect was described as a black male wearing black t-shirt and black shorts walking east on Central Avenue. Police searched and found a man matching the suspect's description and asked for identification. After an ensuing arrest and search, the police found drugs.
The Kansas Supreme Court found five factors that weighed in favor of reasonable suspicion. The police received information from an identified citizen, found the defendant in the direction of the suspect's flight, found the defendant near the reported crime, found the defendant alone, and found that the defendant's clothing generally matched the description of the suspect's. Walker, 292 Kan. at 11–12.
As in Walker, McGonigle was found traveling away from the scene of an activated alarm. McGonigle was stopped around 2:43 a.m. and was the only vehicle on the road as the officer responded to the alarm. He was in a vehicle that could hide stolen property taken from the business. Given the totality of the circumstances, the State argues it exceeds the level of reasonable suspicion in Walker.
This case also bears some similarity to State v. Nugent, 15 Kan.App.2d 554, 811 P.2d 890 (1991). In Nugent, a black male wearing a white hat, a blue bandana over his face, a blue sweatshirt, jeans, and very white tennis shoes robbed a gas station. The cashier at the station pushed an alarm button and tripped an automatic alarm that alerted police. Two officers who were near the gas station when the alarm activated, received a description of the suspect, and learned the suspect was heading north through a parking lot. The police saw a single vehicle in that parking lot. Inside sat a black male, Nugent, who had “ ‘a very worried look on his face.’ “ The police passed slowly and saw Nugent was not wearing a bandana or hat. However, the police stopped to go back for a second look. The van then drove away. The police activated emergency lights and conducted a traffic stop, which led to a subsequent arrest. Nugent argued that the actions exceeded a Terry stop. Nugent, 15 Kan.App.2d at 555–56.
A panel of this court upheld Nugent's conviction. The court stated that the police had “a reasonable and articulable suspicion to detain and question Nugent since a robbery had occurred about two minutes before, a black man was described as fleeing on foot, Nugent is black and was the only person in the immediate vicinity, and he had a worried look on his face.” Nugent, 15 Kan.App.2d at 564.
The State's analysis is flawed given the totality of the circumstances. In Walker and Nugent, the officers had specific identifiable indicators before the officers proceeded with making the stops. Stitt had no information at the time of the stop giving any information on a vehicle to be for or any indication of what the suspect looked like. Stitt responded to the scene; saw a lone vehicle lawfully on the road, capable of carrying stolen property, driving away from the alarm's location exhibiting no traffic violations. McGonigle was doing nothing illegal or unusual to draw attention to himself that night. Additionally, the other officer responding to the alarm did not initiate a stop of McGonigle. Stitt had no idea where the vehicle was coming from or going. Stitt decided the alarm, the time of day, the lack of other vehicles on the road, and the type of vehicle being driven created reasonable suspicion to justify the traffic stop.
None of these activities, individually or collectively in the totality of the circumstances, reflect criminal activity or support reasonable suspicion to make a stop. Stitt made too many assumptions given the delay between when the alarm went off and stopping McGonigle (about 2:30 a.m. to 2:43 a.m.). Stitt proceeded on a hunch, and no more. Stitt's decision to stop McGonigle resulted in his Fourth Amendment rights being violated. A traffic stop constitutes a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). With this violation, any evidence of McGonigle's intoxication and/or statements made after the stop must be suppressed. The motion to suppress should have been granted.
We see no need to address the other two issues raised by McGonigle challenging his DUI as an alternative means crime and the use of his prior criminal history to enhance this charge of DUI to a felony with our ruling and decline to do so. We reverse and remand for further proceedings.
Reversed and remanded.