State v. Arrizabalaga
| Decision Date | 30 April 2021 |
| Docket Number | No. 120,209,120,209 |
| Citation | 485 P.3d 634 |
| Parties | STATE of Kansas, Appellant, v. Sergio Angel ARRIZABALAGA, Appellee. |
| Court | Kansas Supreme Court |
Amy E. Norton, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellant.
Julie McKenna, of McKenna Law Office, P.A., of Salina, argued and the cause and was on the briefs for appellee.
The State of Kansas brings this interlocutory appeal from an order of the Saline County District Court suppressing the fruits (111.5 pounds of marijuana) of a vehicle search conducted by the Kansas Highway Patrol (KHP) on Interstate 70 near Salina, Kansas. The search was based on the alert of a drug dog called to the scene following the officer's processing of an observed traffic offense. The district court denied an initial suppression motion challenging reasonable suspicion but granted a second suppression motion finding that the duration of the continued detention of the driver to await the drug dog was excessive and unlawful. A Kansas Court of Appeals panel affirmed with one judge dissenting. We find that the trooper acted diligently under the circumstances, and we conclude that the delay from the time the trooper called for the drug dog until it arrived and alerted for controlled substances was not an excessive and unlawful extension of the driver's detention.
On the evening of September 5, 2017, KHP trooper Kyle Seiler was parked in the median of Interstate 70 monitoring traffic. He was near milepost 257 outside of Salina, Kansas. At 9:34 p.m. he observed a van travelling east at a speed noticeably slower than other traffic. The trooper began following the vehicle and initiated a traffic stop at 9:37 p.m. after observing it following too closely behind a large truck. In response to Seiler's emergency lights the van decelerated significantly in the driving lane coming almost to a stop and then suddenly moved to the shoulder. Seiler commented to his dispatcher, "Bizarre stop here." His patrol car dash camera recorded the stop of the van and subsequent activities associated with the stop.
Once the van pulled over, Seiler left his patrol car and approached the stopped vehicle. He shined his flashlight into the rear of the van and saw that it contained various (later determined to be four) cardboard boxes in the back as well as a large duffel bag. There was a suitcase in the center row behind the driver's seat. Once the driver's window was down, Seiler could smell the strong scent of an air freshener or deodorizer which he knew is often used to mask the odor of marijuana. He could not identify the source of the scent. He also observed a radar detector on the windshield which struck him as odd given that the van was driving slower than other traffic on the interstate.
The driver was identified as Sergio Arrizabalaga. He told Seiler that he and his passenger Ms. Lopez were going to St. Louis, Missouri, to see family and friends. Seiler had already run the van's license plate prior to the stop and learned it came from a car rental agency. The rental agreement produced by Arrizabalaga showed the van had been picked up earlier that day in Denver, Colorado, and was scheduled to be dropped off in Tallahassee, Florida, on September 9, 2017. Seiler was puzzled about the van's destination. He had earlier encountered several motorists from Florida who were heading west as Florida was "in the midst of Hurricane Irma at the time."
Arrizabalaga accompanied Seiler back to the patrol car where Seiler began writing a warning citation for the observed traffic offense. Arrizabalaga stated he was from Broomfield, Colorado, about 20 minutes away from the airport in Denver where he rented the van. He said he and his passenger had just stopped to eat at the IHOP restaurant near the last exit in Salina and were now looking for a Holiday Inn to spend the night. Again, Seiler was puzzled because he knew there was a Holiday Inn next to the IHOP where Arrizabalaga had just dined.
Having been told by Arrizabalaga that he and his passenger were heading to St. Louis, Missouri, and knowing that the rental agreement showed the van being dropped off in Florida, Seiler asked Arrizabalaga if he was in fact going to Florida. Arrizabalaga said he was not, and that the car rental agency "messed up" the rental agreement. He said they were not given the correct vehicle and the rental company compensated for its mistake by providing extra days on the agreement. He and his passenger were going to travel around for a couple of weeks and then fly back to Colorado.
When Seiler asked Arrizabalaga about the boxes in the back of the van, he said they contained supplies for a party for Ms. Lopez whose birthday was nine days later. According to Arrizabalaga the birthday party was a surprise, and Ms. Lopez was not aware of the contents of the boxes.
While still writing the warning ticket in his patrol car Seiler was advised by his dispatcher that Arrizabalaga had a prior arrest for felony marijuana production as well as a prior arrest related to a stolen vehicle. At 9:53 p.m. Seiler finished the warning ticket, printed it, and handed it to Arrizabalaga with a verbal caution. He asked Arrizabalaga if he had any questions and the two shook hands. Arrizabalaga inquired about the next town with a hotel and Seiler responded. As Arrizabalaga started to leave the patrol car Seiler asked Arrizabalaga if he would answer a few more questions. Arrizabalaga agreed.
Seiler asked whether Arrizabalaga had any marijuana, heroin, cocaine, methamphetamine, guns, knives, or money in the van. Arrizabalaga laughed and shook his head. Seiler then asked him if he had ever been arrested for marijuana. Arrizabalaga initially said no but clarified that he once received a citation for smoking marijuana. This was inconsistent with the information provided by the dispatcher.
Seiler then requested consent to search the van and Arrizabalaga gave his consent. Seiler and Arrizabalaga went to the van. After Seiler began speaking with the passenger but before he started his physical search of the van, Arrizabalaga withdrew his consent to search. The time was 9:57 p.m.
By this time, and in fact earlier in the sequence of events, Seiler had formed what he believed was reasonable suspicion of drug-related criminal activity. But he did not foresee Arrizabalaga withdrawing consent to search. Had he known, he would have detained Arrizabalaga following his confusing travel plan answers. In any event, with consent withdrawn, Seiler advised Arrizabalaga he was detaining him based on reasonable suspicion of criminal activity and would call for a drug dog to sniff the exterior of the van. He told Arrizabalaga "if there wasn't a dog available, he would be on his way." Seiler took Arrizabalaga's keys and directed that he and his passenger wait in the van.
Seiler promptly radioed asking for the assistance of a K-9 (drug dog) handler from Salina or Saline County and was told none were currently on duty. Seiler asked his dispatcher to call and see if Officer Austin Baker, who was coming on duty shortly, could check in early and respond to his location. As he was speaking with the dispatcher he heard from a different K-9 handler, Lieutenant Scott Walker, who said he was on duty and would proceed toward Seiler's location.
Walker arrived on scene at 10:21 p.m. This was 24 minutes after Arrizabalaga withdrew consent to search the van and 22 minutes after Seiler called for a drug dog. The two officers had Arrizabalaga and his passenger get out of the van. The dog sniff began and then ended less than a minute later when the dog signaled the presence of drugs in the van. Officers searched the van and found a large quantity of marijuana, specifically 111.5 pounds in 1-pound packages. Arrizabalaga was taken into custody.
Arrizabalaga was charged in Saline County District Court with possession of marijuana with intent to distribute, possession of drug paraphernalia, and no drug tax stamp. The first motion to suppress filed on his behalf asserted that Seiler did not have a sufficient legal basis to stop Arrizabalaga's vehicle or to continue detaining him after the traffic citation was completed.
The district court disagreed, finding that Seiler had reasonable suspicion (an observed traffic violation) for the initial stop; that he "diligently pursued the mission of the traffic stop" as he questioned Arrizabalaga and prepared the warning citation; that Arrizabalaga's agreement to answer additional questions after the ticket was written constituted a voluntary encounter which continued until Arrizabalaga withdrew his consent to search the van; and that Arrizabalaga's continued detention after withdrawal of consent was based on "objectively reasonable suspicion of other activities to extend the detention for the dog sniff."
The district court based its finding of reasonable suspicion to extend the detention on the totality of the circumstances. The court noted Seiler's initial observations of the van's cargo, the odor of cologne or air freshener, the one-way rental from Colorado to Florida, Arrizabalaga's unusual and inconsistent statements regarding his travel plans, and his drug-related criminal history. The motion to suppress was denied.
In a second motion to suppress filed a month or so later Arrizabalaga took a different approach, challenging both the grounds and duration of his continued detention after completion of the traffic citation. His second motion stated:
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