State v. Bailey, 63612

• Court: Kansas Supreme Court
• Writing for the Court: McFARLAND; ALLEGRUCCI
• Citation: State v. Bailey, 799 P.2d 977, 247 Kan. 330 (Kan. 1990)
• Decision Date: 26 October 1990
• Docket Number: No. 63612,63612
• Parties: STATE of Kansas, Appellee, v. Brian BAILEY, Appellant.

Page 977

799 P.2d 977

247 Kan. 330

STATE of Kansas, Appellee, v. Brian BAILEY, Appellant.

No. 63612.

Supreme Court of Kansas.

Oct. 26, 1990.

Syllabus by the Court

1. For a stop and frisk search, absent probable cause or a warrant to arrest, to meet the requirements of the Fourth Amendment and K.S.A. 22-2402(1) the police officer must have a reasonable and articulable suspicion, based upon facts known prior to the stop and the circumstances present, that the individual stopped has committed, is committing, or is about to commit a crime.

2. When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence that the underlying felony was committed is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required.

3. Conviction of first-degree felony murder and the underlying felony of aggravated robbery do not constitute double jeopardy. Following State v. Gonzales, 245 Kan. 691, 783 P.2d 1239 (1989), and State v. Dunn, 243 Kan. 414, 758 P.2d 718 (1988).

Jessica R. Kunen, Chief Appellate Defender, argued the cause and was on the briefs for appellant.

Hiram E. Blomquist, Asst. Dist. Atty., argued the cause, and Paul J. Morrison, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellee.

McFARLAND, Justice:

Brian C. Bailey appeals his jury trial convictions of first-degree felony murder (K.S.A. 21-3401) and four counts of aggravated robbery (K.S.A. 21-3427).

Specifically, the convictions were for the:

1. December 8, 1986, aggravated robbery of a Workingman's Friend gas station in Lenexa and the killing of its attendant, George Woods;

2. December 15, 1986, aggravated robbery of a 7-Eleven convenience store in Prairie Village;

3. December 15, 1986, aggravated robbery of the Ensminger Retail Liquor Store in Lenexa; and

4. December 23, 1986, aggravated robbery of a Vickers gas station in Overland Park.

For his first issue, defendant contends that the police officer stopping his vehicle had no reasonable suspicion for doing so; that the subsequent search and detention were improper; and that all evidence arising therefrom, including defendant's statements, should be suppressed.

At approximately 9:15 a.m., on December 24, 1986, George Kennedy, a Shawnee police officer, was driving east on 67th Street on routine traffic patrol. On his radio he heard a dispatch that an aggravated robbery and shooting had just occurred at a Workingman's Friend gas station in Merriam at 67th and Carter Streets. The perpetrator was described as a black male wearing a yellow baseball cap who ran south from the scene of the crime. Officer Kennedy's location was close to the crime scene. He activated his red lights to speed his progress and headed for the crime scene. His purpose was to look for suspicious activity associated with the crime and to assist in the search of the area. While so proceeding, his attention was caught by a brown pickup truck which was westbound on 67th Street. The vehicle was equipped with oversize tires and was considerably taller than the police car. As the vehicles passed, the officer was only able to see the driver's head and shoulders. The driver was a young black male who was described by the officer as nervously looking from side to side as though looking for something. The driver turned and looked at the officer and made an abrupt and unsignalled left-hand turn. The officer made a U-turn and stopped the truck after it had made another turn.

The driver and sole occupant of the truck, defendant herein, was immediately advised that he was stopped as a part of the investigation of the recent robbery and was read his Miranda rights. Defendant gave the officer a California driver's license which a radio records check disclosed was not of record. The records check also disclosed defendant had an expired Kansas driver's license. Defendant gave a Leavenworth Road address and then gave a different address. Defendant gave varying reasons for why he was in the area. A Merriam police officer had arrived on the scene. In separate consents to each officer, the defendant consented to a search of the truck. In the truck the officers found a bag hanging from the headlight switch which contained .22 caliber and .32 caliber ammunition. Two wallets and checkbook covers were also found as well as four traffic citations issued to a Kohler Jeffries.

Defendant was transported to the Merriam police headquarters. A records check had revealed defendant and Kohler Jeffries had previously been arrested for aggravated robbery. The perpetrator of the December 24 crime had been described as a tall black male. Defendant was apparently not particularly tall. Proceeding on the theory that defendant's conduct as observed by Officer Kennedy and the circumstances surrounding the stop were consistent with defendant having served as the "wheelman" for the robber, Johnson County District Attorney Dennis Moore was telephoned. Defendant was granted immunity for the December 24 robbery and shooting in exchange for information on the person actually committing same. Defendant advised he had in fact served as the wheelman for Kohler Jeffries, who had committed those crimes. In a later statement, he implicated himself and Jeffries in the three robberies occurring on December 15 and 23, 1986. These statements and the immunity granted will be discussed in greater detail elsewhere in this opinion.

Defendant sought suppression of all evidence and statements obtained as a result of what he contended was an illegal arrest, search, and detention.

The trial judge, after a hearing extending over several days, made extensive findings of fact consistent with the facts set forth herein and concluded:

"That the stop and detention of the defendant was lawful in that the officer had a reasonable and articulable suspicion based on his knowledge at that time of the crime that had occurred; the description, albeit sketchy, of the perpetrator; the actions of the defendant at the time the officer first observed defendant, the officer's three-plus years experience, the officer's training regarding patterns of people which allows the officer to determine inferences and deductions which might elude an untrained person which together make up the totality of the circumstances existing at that time pursuant to U.S. v. Cortez, 449 U.S. 411 [, 101 S.Ct. 690] 66 L.Ed.2d 621 (1981) and State v. Baker, 239 Kan. 403, 407, 720 P.2d 1112 (1986). The officer once having reasonable suspicion defendant was involved in the crime, the officer could legally stop and detain the defendant and to demand his name, address and an explanation of his actions pursuant to K.S.A. 22-2402(1) and City of Garden City v. Mesa, 215 Kan. 674, 527 P.2d 1036 (1974). The Court finds that the two tests set out in the Cortez case have been satisfied, and that the officer had probable cause for the arrest and search. The Court finds that the searches of the defendant's vehicle were lawful based upon the voluntary consent of the defendant. Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041 (1973), U.S. v. Shields, 573 F.2d 18 (10th Cir.1978)."

The defendant's motions for suppression and dismissal were denied.

The key question in this issue is the validity of the stop. Unless tainted by an illegal stop, the search was clearly consensual and the detention justified.

K.S.A. 22-2402(1) now provides:

"(1) Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect's actions." L.1990, ch. 106 § 1.

In State v. Baker, 239 Kan. 403, 407, 720 P.2d 1112 (1986), we stated:

"[A] stop and frisk under Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),] and K.S.A. 22-2402 requires that the officer have a reasonable and articulable suspicion, based on facts known to him or her prior to the stop, that the individual stopped has committed, is committing, or is about to commit a crime."

State v. Guzy, 139 Wis.2d 663, 407 N.W.2d 548, cert. denied 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987), contains an excellent discussion of the constitutional limits to a police officer's right to stop a suspect. In Guzy, a store was robbed. Thirty minutes later officers heard a dispatch about the robbery stating the robber was a white male with long hair and other characteristics not relevant to the case. The officers then saw a vehicle in which two white males with long hair were riding. No suspicious conduct was observed. The officers concluded that the robber could be one of the men, based on the time and distance from the crime scene and that the occupants did have long hair. They stopped the vehicle. The case contains an excellent summary of the applicable law. The Guzy court stated, in part:

"Though stopping a vehicle and detaining its occupants constitutes a seizure within the meaning of the fourth amendment, see [Delaware v.] Prouse, [440 U.S. 648, 653, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979) ], certain investigative stops, prompted by an officer's suspicion that the occupants have committed a crime, may in certain circumstances be constitutionally permissible even though the officer lacks probable cause to arrest. United States v. Hensley, 469 U.S. 221, 226, [105 S.Ct. 675, 678-79, 83 L.Ed.2d 604] (1985). The test is an objective test. Law enforcement officers may only infringe on the individual's interest to be free of a stop and detention if they have a suspicion grounded in specific, articulable facts and reasonable inferences from those facts,...