State v. Bannon

• Decision Date: 28 July 2017
• Docket Number: No. 112,212,112,212
• Citation: 398 P.3d 846
• Parties: STATE of Kansas, Appellee, v. John W. BANNON, Appellant.
• Court: Kansas Supreme Court

398 P.3d 846

STATE of Kansas, Appellee,

v.John W. BANNON, Appellant.

No. 112,212

Supreme Court of Kansas.

Opinion filed July 28, 2017

Richard Ney, of Ney & Adams, of Wichita, argued the cause, and Ian M. Clark, of Wichita, was with him on the briefs for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Beier, J.:

Defendant John W. Bannon appeals his conviction for criminal carrying of a firearm in the lobby of the Wheatshocker Apartments on the campus of Wichita State University (WSU).

The district court judge rejected Bannon's motion to suppress the gun found on him during a police patdown. The Court of Appeals reversed. We granted the State's petition for review. We now reverse the Court of Appeals and remand the case to the panel for reconsideration under the correct legal standard.

FACTUAL AND PROCEDURAL BACKGROUND

Sergeant Bryson Potter of the WSU Police Department received a complaint that a student at the Wheatshocker Apartments had a handgun. According to the complaint, the person was named "John" and was a "[w]hite male, about 5' 10?, skinny build, [and had] long brown hair" and lived in either Room 414 or Room 514. After receiving the complaint, Potter and Officer Phillip Shelite cleared a burglary alarm in another building on campus and traveled to Wheatshocker. While they drove, dispatch determined and reported to the officers that a person by the name of John Bannon lived in Room 414. Dispatch also contacted the front desk of Wheatshocker. The resident assistant on duty told dispatch that "they thought [Bannon] was in the front lobby at the time."

When the officers arrived at the building, they used their WSU identification cards to unlock the front doors. Once inside, Potter saw a man sitting in a chair who matched the description he had been given. The officers approached, and Potter asked if the man was John. The man, Bannon, said, "Yes." Potter asked Bannon if he had any weapons on him, and Bannon said, "No." At that point, Shelite "helped [Bannon] get up," had Bannon put his hands on his head, and patted him down. Shelite found a gun in Bannon's waistband.

Bannon was charged with criminal carrying of a firearm under K.S.A. 2012 Supp. 21-6302(a)(4), which prohibited knowingly carrying a firearm concealed on his person, when not on his land, in his abode, or in his fixed place of business.

Before trial, Bannon filed a motion to dismiss, arguing that he could not be convicted of the charged crime because he had carried the gun on his land or in his abode. After hearing arguments from both sides, District Judge John J. Kisner, Jr., denied the motion.

Bannon also filed a motion to suppress the gun, arguing that "[s]ince the common area of the apartment building, from which the general public was excluded by a locked door, was contained in the curtilage of the Defendant's apartment, the warrantless search of Defendant, in the absence of any exigent circumstances, was presumptively unreasonable." He also argued that the stop-and-frisk exception to the Fourth Amendment's warrant requirement under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), did not apply "because the Defendant was not in a public place at the time he was stopped and searched. Further, even if it did apply, the officers lacked a reasonable, articulable suspicion that the Defendant was involved in criminal activity at the time they seized and searched him." Finally, Bannon asserted, because "law enforcement officers did not have probable cause to believe the Defendant was committing a crime at the time he was seized and searched, his warrantless arrest cannot be upheld."

District Judge Christopher Magana held an evidentiary hearing on the motion. At the hearing, Jennifer Williams, a dispatcher for the WSU Police Department, and Officers Potter and Shelite testified.

Williams said she was on duty the evening Bannon was arrested. The parents of WSU student Johnathon Wasserstein came into the department and told her that "they wanted to speak with an officer regarding an incident that was reported to them that had occurred two weeks prior." As a result, Williams called Potter, the senior officer on duty, to the station.

While waiting for Potter to arrive, Williams overheard the Wassersteins "talking amongst themselves, saying [that the person they were complaining about] had reported he worked for Homeland Security; that their son had seen him with a .40 caliber-type Glock weapon; and that many comments had been made to their son that there was M16s in the trunk of a vehicle." At some point, the Wassersteins also gave Williams a description of the person in question: "white male, with a light brown colored leather type jacket, ... sitting in a chair in the lobby ... of Wheatshocker Apartments." The Wassersteins told Williams that their son had told them that it was "an everyday occurrence that this individual carries a weapon on him."

When Potter arrived at the station, he spoke to the Wassersteins. Potter testified that the father told him his son had said "someone at Wheatshocker worked for Homeland Security and carried guns all the time." Potter asked where the son was and if he could speak to him. The father said that they could go get their son and bring him back to the station, which the couple did.

After Johnathon arrived, Potter asked him "what was going on." Wasserstein told Potter

"a friend of his or someone he hung out with named John told him that he worked for Homeland Security. He told him he did missions. He told me that he'd seen his gun—he had two guns in a safe in his closet in his room. He said that he always had a gun on him[ ] as well, in his waistband."

Potter asked Johnathon when he had seen the guns in the safe. Potter testified that, based on the response, "it didn't seem to me that it was that day that he'd seen them in the safe. I asked him when did he have a gun on him, and he said he always has a gun on him." In addition to the guns in the safe, Johnathon told Potter that John had rifles in his car and that "there was a lot of ammunition" in the safe. When Potter asked Wasserstein whether John had a concealed carry license, Wasserstein told him that John had told him he did. According to Potter, at the time of the incident, carrying a concealed handgun in Wheatshocker Apartments was prohibited "both by law and by ... university policy," even with a concealed carry license. Johnathon also told Potter that John used Xanax and morphine. Johnathon described John as "about [5'10?>], skinny buil[d], long brown hair" and said he thought John lived in either Room 414 or Room 514 of Wheatshocker.

During the hearing, Potter was asked about his observations of Johnathon. Potter said he observed nothing to indicate that Wasserstein was under the influence of drugs or alcohol.

After dealing with the burglary alarm in another building, which took about 5 minutes, Potter headed to Wheatshocker. During cross-examination at the suppression hearing, Potter said he was "investigating several possible crimes [:] impersonating a ... law enforcement officer, the carry of the gun illegally, and then the two prescription drugs that Mr. Wasserstein mentioned are often abused, so that was on my mind as well."

At Wheatshocker, Potter testified, he tried to speak to the front-desk worker, but she could not hear him. At about the same time, Potter noticed a person sitting in the lobby who matched the description he had been given. He and Shelite approached the person.

"We ... asked him if his name was John. He said yes. Asked him if he had a weapon on him. He said no. Officer Shelite insisted on him standing up and putting his hands on his head and gave him a quick exterior patdown.

....

"[H]e started patting him down on the outside of his shirt around the waistline and almost immediately pulled a handgun off of Mr. Bannon."

Potter admitted on cross-examination that he had not checked to see if Bannon had a concealed carry permit, although he could have. He reiterated his belief that, because Wheatshocker was a posted no-guns area, carrying a gun was illegal regardless of a permit. Potter also was asked about the last time Johnathon had seen Bannon with the gun; Potter did not know. Johnathon just said "[Bannon] always has a gun on him."

Potter confirmed that he did not have a warrant to go into Wheatshocker; that entrances are locked, preventing access by the general public; and that residents and authorized WSU employees use their WSU IDs as electronic passkeys to get into the building. Near the lobby, where Bannon was found, there are mailboxes for the residents. The building also includes other communal areas, such as laundry rooms. Bannon's room was on the fourth floor, and there was no direct connection between his room and the lobby.

The State's final witness at the suppression hearing was Shelite. He arrived at the station while the Wassersteins were bringing their son in. While Potter questioned Johnathon, Shelite "just observed and listened."

According to Shelite, when he and Potter reached Wheatshocker,

"[a]s we were walking in, Officer Potter gave a description of Mr. Bannon. And when we got into the front lobby, we noticed that Mr. Bannon was sitting down, meeting that description. And we walked over, and Officer Potter asked him if his name was John, to which he replied yes.....

"We asked John to stand up, and Officer Potter asked him if he had any weapons on him. He replied, [']No, what's going on.['] I asked him to place his hands on the back of his head. And I held onto his hands, both of his hands, with my left hand and told him that I was going to be just checking his waistband, the exterior of his clothing, with my hand.

....

"I patted the exterior part of this clothing down. He had his shirt untucked, and I just patted around, starting from the

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