Garden City v. Mesa

• Court: Kansas Supreme Court
• Writing for the Court: SCHROEDER; PRAGER
• Citation: Garden City v. Mesa, 527 P.2d 1036, 215 Kan. 674 (Kan. 1974)
• Decision Date: 02 November 1974
• Docket Number: No. 47467,47467
• Parties: The GARDEN CITY, Kanasa, Appellee, v. Brigido Guillen MESA, Appellant.

Page 1036

527 P.2d 1036

215 Kan. 674

The GARDEN CITY, Kanasa, Appellee, v. Brigido Guillen MESA, Appellant.

No. 47467.

Supreme Court of Kansas.

Nov. 2, 1974.

Rehearing Denied Dec. 11, 1974.

Syllabus by the Court

Under K.S.A.1973 Supp. 22-2402(1) a police officer is authorized in the discharge of his duties to stop a person loitering in a public place at 4:00 o'clock a. m., where the officer harbors a suspicion of possible burglary, and demand of him his name, address and an explanation of his actions.

J. Stephen Nyswonger of Braun & Nyswonger, Garden City, argued the cause, and Lelyn J. Braun, Garden City, was with him on the brief for appellant.

William B. Bolin, Garden City argued the cause, and was on the brief for appellee.

SCHROEDER, Justice:

This case presents a serious question concerning the application of K.S.A.1973 Supp. 22-2402(1) commonly referred to as our 'stop and frisk' statute, and the role of the Fourth Amendment of the Federal Constitution in the confrontation between a citizen in a public place and the policeman investigating suspicious circumstances.

Brigido Mesa (defendant-appellant) has appealed from a conviction of resisting or opposing a police officer in the discharge of his duties in violation of Garden City, Kansas, Ordinance Section 20-15. Mesa was originally found guilty in Garden City Municipal Court and sentenced to pay a $25 fine and costs. On appeal to the district court the matter was determined upon stipulation solely from the transcript taken in the municipal court proceedings and briefs filed by the parties. The district court found Mesa guilty as charged but suspended sentence due to the surrounding circumstances. Mesa has duly perfected an appeal.

On May 26, 1973, Officers James W. Phillips and Patrick Connon of the Garden City Police Department were dressed in police uniforms and working together on the night shift patrol. At 4:00 o'clock a. m. the officers were cruising down South Main Street in their marked patrol car when they observed Mesa standing in the doorway of the Motor Electric Shop at 216 South Main. There were lights on in the shop, but its door was closed.

After seeing Meas the officers circled the block and parked their patrol car in front of the shop. Both officers got out of their vehicle, walked up to Mesa, greeted him with a 'Good morning' and requested some identification. Mesa responded that it was none of the officers' business who he was or what he was doing. The officers made their request a second time and Mesa answered that he was doing some work in the electric shop. The officers again asked Mesa for some identification, and Mesa turned away from them and walked inside the shop. Officer Phillips caught up with Mesa, stepped in front of him to block his path, and told him 'that was as far as he was going to go, we were going down to the (police) station.' At that point Meas put his hands on Officer Phillips and attempted to push him to one side and go around him. Officer Connon grabbed one of Mesa's arms, turned him around, and handcuffed him. The officers then took Mesa to their patrol car and called for their sergeant to join them and transport Mesa to the police station.

In a short while Sergeant Broetzmann arrived at the scene. The sergeant had met Mesa on a previous occasion and knew his name. He attempted to clam Mesa. Before departing for the police station, Mesa asked that the business be locked and he provided the keys to the officers.

At the trial in municipal court, Officer Phillips testified during cross-examination that there was nothing he observed in Mesa's conduct when they first saw him standing in the shop doorway which indicated he was involved in the commission of and crime, and Mesa's behavior did not indicate anything suspicious about what he was doing there. Phillips also stated that Mesa was not under arrest until after pushing Phillips out of his way. On redirect examination Officer Phillips stated that one of an officer's duties, in relation to the security of buildings at night, was to check out any unfamiliar persons, and that when he observes someone standing around a business at 4:00 o'clock a. m. he becomes suspicious and finds out who the person is and what he is doing. Phillips had patrolled on previous occasions in the vicinity of the electric shop on the night shift, and, though he had seen lights on in the shop, he had never seen anyone working there.

Officer Common's testimony was substantially similar to that of Phillips. Connon stated on redirect examination the purpose of investigating individuals standing around buildings in the middle of the night was for the protection and security of the buildings in reference to burglars.

On cross-examination Connon had previously testified:

'Q. When you went up to that building that night that building was well lighted, wasn't it?

'A. Yes, sir.

'Q. There was nothing that Mr. Mesa was doing when you went by that indicated any violation of any laws against this city, state or the United States Government, was there?

'A. No, sir.

'Q. He didn't attempt to flee or he didn't attempt to do anything that indicated that he was about ready to or had just recently participated in any type of crime?

'A. No, sir.

'Q. Now how did he look as a matter of fact? What did his clothes look like when you first walked up there to see him?

'A. Clean and neat, not overly dressed in any manner.'

The district court, after examining the municipal court transcript and the briefs submitted by the parties, found:

'. . . (T)hat under the circumstances existing the officers were justified in approaching and requesting Mr. Mesa's identity and in fact would have been derelict in their duty if they had not done so. That thereafter when Mr. Mesa pushed away from the officers that he was resisting and opposing an officer in violation of Ordinance Section 20-15 and is guilty as charged. While this result is predicated on the Court's finding that under the circumstances the officers were acting reasonably and with justification, such finding is unnecessary to the decision of the case. In any event, it was the duty of Mr. Mesa as a citizen to cooperate rather than resist the officers. However, since it has now been determined Mr. Mesa was not engaged in committing any crime upon the premises and since such resistance as he gave the officers was technical in nature, the Court does not believe that Mr. Mesa deserves to be punished, especially since before the incident was over it has been established that Mr. Mesa had the key to the premises and had a legal right to be upon the premises.'

The district court thereupon suspended sentence and assessed the costs to the city.

The city ordinance under which the appellant was arrested is contained in the Code of Ordinances of the City of Garden City, Kansas, Section 20-15, titled, 'Resisting an Officer.' It reads:

'It shall be unlawful for any person in the City to resist or oppose any police officer of the City in the discharge of his duties or knowingly and willfully assault, beat or wound any police officer while in the discharge of an official duty.'

The parties to this action concede that whether each of the police officers on the facts heretofore related was acting 'in the discharge of his duties' is controlled by K.S.A.1973 Supp. 22-2402(1). It pertains to the stopping of a suspect and provides:

'Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.'

The foregoing statute was first before this court in State v. Jackson, 213 Kan. 219, 515 P.2d 1108, where the court said:

'The state recognizes, and correctly so, that even though 'stop and frisk' has now been codified in 22-2402, police conduct in a 'stop and frisk' situation must be judged under the reasonable searches and seizures clause of the Fourth Amendment to the Constitution of the United States and the judicial interpretations thereof. This point was made by the United States Supreme Court in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, in considering the reasonableness of searches and seizures under The Consolidated Laws of New York Annotated, Code of Criminal Procedure, § 180-a (now § 140-50, effective September 1, 1971). . . . The New York statute was followed in the drafting of 22-2402. (See Judicial Council Comment appended to K.S.A.1972 Supp. 22-2402.)' (p. 222, 515 P.2d p. 1112.)

While the United States Supreme Court in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, declined to approve expressly the language of the New York statute, it found on the facts there presented that the conduct of an officer acting within the statute was not offensive to the Fourth and Fourteenth Amendments.

It is readily apparent 22-2402 was designed by the legislature to clarify the power of the investigating officer prior to the actual arrest. The justification and limitations applicable to such powers are expressed by the Supreme Court of the United States in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 and Sibron v. New York, supra. This is indicated by the Judicial Council Comment appended to K.S.A.1973 Supp. 22-2402.

In resolving the issue before the court we must therefore look to Terry v. Ohio, supra, upon which both of the parties to this appeal rely.

While the facts in Terry and in State v. Jackson, supra, involve both a search and a seizure, as distinguished from a seizure of the person prior to arrest in the instant case, the basic underlying principles are the same.

Terry reaffirms that the Fourth Amendment right against unreasonable searches and seizures, made applicable to the states by the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 184 A.L.R.2d 933), 'protects people, not places,' and...