State v. Arrizabalaga

• Decision Date: 26 July 2019
• Docket Number: No. 120,209,120,209
• Citation: 447 P.3d 391
• Parties: STATE of Kansas, Appellant, v. Sergio Angel ARRIZABALAGA, Appellee.
• Court: Kansas Court of Appeals

447 P.3d 391

STATE of Kansas, Appellant,

v.Sergio Angel ARRIZABALAGA, Appellee.

No. 120,209

Court of Appeals of Kansas.

Opinion filed July 26, 2019.

Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, for appellant.

Julie McKenna, of McKenna Law Office, P.A., of Salina, for appellee.

Before Standridge, P.J., Gardner, J., and Walker, S.J.

Walker, J.:

The State appeals the district court's decision to grant Sergio Angel Arrizabalaga's motion to suppress evidence on the grounds that a state highway patrol trooper who stopped Arrizabalaga while he was driving on I-70 did not diligently pursue the purpose of the stop and that the stop was excessive in duration. The State argues that the district court abused its discretion by applying incorrect standards of law and that the district court erred when finding the trooper did not act diligently. But our review of the district court's analysis shows that the district court applied correct standards of law and thus did not abuse its discretion. Additionally, we find the court did not err when granting the motion to suppress because the trooper who stopped Arrizabalaga did not act diligently and did not reasonably pursue the purpose of the stop after he gained reasonable suspicion that Arrizabalaga was involved in drug activity. Thus we affirm the district court's decision.

FACTS

The stop and search of Arrizabalaga's vehicle

Around 9:45 p.m. on September 5, 2017, Kansas Highway Patrol Trooper Kyle Seiler initiated a traffic stop of Arrizabalaga's vehicle for following a tractor trailer too closely as he drove along I-70 near Salina. At the suppression hearing held later in this case, Seiler testified that he initially saw Arrizabalaga's van was travelling slower than most traffic on I-70, around 67 miles per hour, so he started following it. While following, Seiler continued to observe the van and initiated the traffic stop when Seiler determined that Arrizabalaga was following a tractor trailer too closely. Seiler looked up the van's tag number when he initiated the stop. Seiler testified that Arrizabalaga slowed the van significantly in the driving lane before pulling off onto the shoulder of I-70, which seemed odd to him based on his experience in conducting traffic stops.

Seiler approached the van, shined his flashlight on the vehicle, and observed that the van was full of stacked cardboard boxes, large black bags, and a suitcase. As Seiler initiated contact with Arrizabalaga and the passenger, Seiler noticed a radar detector on the windshield, which he thought was odd because Arrizabalaga had not been speeding. Seiler also noticed a strong odor of "either cologne or air freshener, some sort of deodorizer" coming from inside the van. While at the van, Seiler asked for Arrizabalaga's driver's license and rental papers and inquired about Arrizabalaga's travel plans. Arrizabalaga told Seiler he was going to St. Louis to see family and friends.

Seiler requested Arrizabalaga to accompany him to his patrol car, and Arrizabalaga did so. Once they were in the patrol car, Seiler requested a driver's license check through dispatch and a criminal history check. While waiting on the results of these checks, Seiler asked Arrizabalaga more about his travel plans. Arrizabalaga told Seiler he was from Broomfield, Colorado, which Arrizabalaga said was about 20 minutes from where he rented the van in Denver. Seiler asked about the cargo in the van, which Arrizabalaga told him was for a surprise birthday party for the passenger in a few days.

Arrizabalaga continued to tell Seiler about his travel plans, providing that he and his passenger had stopped at an IHOP restaurant in Salina and wanted to keep driving until they could find a nice hotel like a Holiday Inn. Seiler testified that this struck him as odd because there is a Holiday Inn right next to the IHOP in Salina. Seiler then asked Arrizabalaga why the one-way rental was to be dropped off in Tallahassee, Florida, rather than their destination of St. Louis. Seiler asked Arrizabalaga if he was going to Florida, and he said no. Arrizabalaga told Seiler that he had two weeks off of work and was going to travel after stopping in St. Louis. He stated that the passenger was unaware of his travel plans and that Arrizabalaga was planning to fly back to Colorado.

The district court found that about eight and a half minutes elapsed until dispatch confirmed Arrizabalaga's driver's license was valid and provided his criminal history. Seiler printed off a warning ticket and told Arrizabalaga that was all he had for him. Arrizabalaga started to get out of the car, and Seiler asked him if he would answer more questions. Arrizabalaga consented, and Seiler began asking him about his criminal history. Arrizabalaga told Seiler he had been issued a citation for marijuana, but he had never been arrested, which was inconsistent with the information the dispatch had provided. Dispatch provided that Arrizabalaga had been charged with producing marijuana and a felony related to a stolen vehicle. Seiler then asked Arrizabalaga if he could search his van, and Arrizabalaga consented.

After he gave consent, Arrizabalaga and Seiler returned to Arrizabalaga's van, and Seiler asked the passenger to exit the van. At this time, Seiler told Arrizabalaga that he had reasonable suspicion but not probable cause to search the van. Arrizabalaga asked Seiler if he had a search warrant, and Seiler responded that Arrizabalaga had consented. Seiler told Arrizabalaga and his passenger that he was looking for large amounts of drugs and any personal use amounts would "go into the ditch." Arrizabalaga then revoked his consent to search the van.

After Arrizabalaga revoked consent, Seiler informed Arrizabalaga that he was calling for a drug dog, and if no dog was available then they would be free to leave. Seiler took the van keys from Arrizabalaga and called dispatch to find a dog. Dispatch advised there was no dog available, but a few minutes later Kansas Highway Patrol Lieutenant Scott Walker informed Seiler he had a dog and would come to the scene. Walker arrived approximately 24 minutes later. Walker's dog alerted within three minutes of Walker's arrival.

A search of the van revealed 112 packages containing approximately 111.5 pounds of marijuana. Arrizabalaga was arrested, and the State charged him with one count each of possession with intent to distribute marijuana, possession of drug paraphernalia, and no drug tax stamp.

The first motion to suppress

Arrizabalaga filed his first motion to suppress on July 16, 2018, requesting that the court "suppress[ ] the items seized by law enforcement and any statements made by [Arrizabalaga] to law enforcement as the result of an unlawful detention and search and seizure." In this motion, Arrizabalaga argued that Seiler did not have probable cause to stop the van and did not have reasonable suspicion to detain Arrizabalaga. The district court held the first motion to suppress hearing a few days later and made an oral ruling at a separate hearing. The district court found that Seiler had reasonable suspicion for the initial traffic stop and that Seiler's questions about travel plans while processing the traffic infraction were appropriate and did not measurably extend the length of the stop. Regarding the voluntary exchange after the completion of the initial stop, the district court found that Arrizabalaga consented to additional questions and that the encounter became voluntary until he withdrew consent to search the van.

The district court provided a factual analysis of the totality of the circumstances for finding reasonable suspicion, including consideration of the cargo in the van, the odor of cologne or air freshener, and the rental agreement. The district court stated:

"If this was based solely on the initial observations made by Trooper Seiler, the Court would find this to be a very close case. Trooper Seiler did not see any air fresheners in the van and did not ask either occupant about the odor. And traveling to Missouri would not be a significant variation from traveling to Tallahassee from Denver using I-70.

"However, as noted the recent Kansas Supreme Court decisions, Seiler could ask additional travel questions in the course of pursuing the mission of the traffic stop without extending the length of the detention. A noticeable disconnect between the driver's explanation and the rental documents would warrant additional inquiry. That is what occurred in this case."

The district court detailed the further inquiry the trooper made. Then, the district court provided:

"As noted in a Tenth Circuit Court of Appeals case, quoted in the [State v. ] Schooler [, 308 Kan. 333, 419 P.3d 1164 (2018),] decision by the Kansas Supreme Court, lies, evasions, or inconsistencies about any subject while being detained may contribute to reasonable suspicion.

"This Court finds defendant's answers regarding his travel plans to be more than unusual or strange. The travel plan answers were inconsistent with the four-day [rental], thus they were a factor supporting reasonable suspicion.

"Then, after the encounter became voluntary, the defendant gave answers inconsistent with the criminal history information from dispatch. As stated in Schooler, criminal history alone cannot support reasonable suspicion, but in conjunction with other factors, criminal history contributes powerfully to reasonable suspicious calculus. Moreover, when the individual lies about having a criminal history, the inference of wrongdoing is all the more powerful.

"The Court finds, based on the totality of the circumstances, when the defendant withdrew his consent to search the van, there was objectively reasonable suspicion of other activities to extend the detention for the dog sniff. The motion to suppress is denied."

The second motion to suppress

About one month after the initial motion to suppress was denied, Arrizabalaga filed a second motion to suppress...