State v. Bannon

• Decision Date: 12 January 2018
• Docket Number: No. 112,212,112,212
• Citation: 411 P.3d 1236,55 Kan.App.2d 259
• Parties: STATE of Kansas, Appellee, v. John W. BANNON, Appellant.
• Court: Kansas Court of Appeals

55 Kan.App.2d 259

411 P.3d 1236

STATE of Kansas, Appellee,

v.John W. BANNON, Appellant.

No. 112,212

Court of Appeals of Kansas.

Opinion on remand filed January 12, 2018

Richard Ney, of Ney & Adams, of Wichita, and Ian M. Clark, of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Standridge, P.J., Buser and Schroeder, JJ.

Schroeder, J.:

On remand from the Kansas Supreme Court, we address the two issues John W. Bannon raised in the appeal of his jury conviction for criminal carrying of a weapon under K.S.A. 2012 Supp. 21-6302(a)(4).The record reflects Bannon was searched without a warrant in the lobby of Wheatshocker Apartments (Wheatshocker).

Bannon claims he was in lawful possession of his firearm in the front lobby to his apartment building and the lobby qualifies as part of his abode or curtilage.Bannon's argument the lobby qualifies as part of his abode or curtilage to his apartment is not supported by the law and is unpersuasive.

Bannon also asserts the district court erred in not granting his motion to suppress the evidence found as a result of an improper pat-down search.Bannon claims that without a warrant, the officers lacked reasonable suspicion to search him pursuant to Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889(1968).Bannon's perception of the restriction placed on officers pursuant to Terry is misplaced.Here, based on a tip from a known informant, the officers had reasonable suspicion to believe Bannon was armed with a weapon.Therefore, officers had reasonable suspicion Bannon was presently armed and dangerous, justifying a pat-down search for officer safety or for the safety of the individuals in the apartment lobby.We affirm.

FACTS

Concerned parents of a Wichita State University(WSU) student went to the WSU Police Department to report an incident their son related to them that occurred two weeks prior at his campus residence, Wheatshocker.

Both Sergeant Bryson Potter and Officer Phillip Shelite of the WSU Police Department spoke with the parents who informed them their son, Johnathon Wasserstein, had seen a fellow resident in Wheatshocker carrying a gun.Sergeant Potter had the parents retrieve their son and verified Wasserstein was a WSU student living in Wheatshocker.

Wasserstein told the officers "[a] friend or an acquaintance that told him that he works for Homeland Security; he always has guns on him; he interrogates people.He said that he had his conceal and carry, and he had guns in his apartment, as well."The individual's first name was John and he lived in one of two possible Wheatshocker units—No. 414 or No. 514.Wasserstein provided a physical description of John for the officers and told the officers John took Xanax and Morphine.Wasserstein was explicit that he regularly hung out with John, and John always carried a gun.Officer Shelite confirmed a John Bannon lived in apartment No. 414 at Wheatshocker.

When Sergeant Potter and Officer Shelite arrived at Wheatshocker, they were advised by dispatch a student working at the lobby desk confirmed Bannon was currently sitting in the Wheatshocker front lobby."The front lobby is right inside [Wheatshocker].You walk into the apartments and you have a—a desk where a worker always sits, and there's a front lobby.It's a common area with seating and couches and everybody uses it; students hang out there."Sergeant Potter and Officer Shelite observed a number of students in the lobby.

The officers saw a man matching Bannon's physical description sitting in a chair reading in the lobby.The officers approached Bannon.Sergeant Potter asked the individual if his name was John, and he said, "Yes."Sergeant Potter then asked Bannon if he had any weapons on him, and he said, "No."Officer Shelite grasped Bannon by the arm and had him stand up for a quick pat-down.Officer Shelite located a black handgun, loaded with a 15-round clip and a round in the chamber, on Bannon's right hip, inside his waistband, with a shirt over it to conceal it.The officers secured the loaded weapon and placed Bannon in handcuffs.WSU's policy at the time prohibited weapons on campus, and this policy was integrated into Wheatshocker housing contracts.

The State charged Bannon with one count of criminal carrying of a weapon in violation of K.S.A. 2012 Supp. 21-6302(a)(4), a class A nonperson misdemeanor, 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.

Prior to trial, Bannon moved to dismiss the charge against him, asserting he could not be convicted because he was carrying a concealed weapon on his land or in his abode.Following an evidentiary hearing, the State filed a memorandum of law, including the student code of conduct, arguing the defenses of carrying on one's land or abode were not available to a defendant who waived his right to carry as part of his rental contract for residency at Wheatshocker.Further, the prohibition against firearms on WSU's campus and in Wheatshocker were reasonable regulations exercised by WSU for the protection and safety of its students.Bannon filed a response arguing WSU's gun policy was irrelevant to the Kansas criminal statute regarding carrying a weapon on one's land or in one's abode.

The district court found the lobby of Wheatshocker was not a part of Bannon's land or abode and he could not claim any statutory exemptions to prosecution for criminal carrying of a weapon.The district court denied Bannon's motion to dismiss.

After his motion to dismiss was denied, Bannon filed a motion to suppress the evidence of the concealed handgun seized from his waist, arguing it was taken during a warrantless search of his person within the curtilage of his apartment or, in the alternative, that the officers lacked reasonable suspicion or probable cause to believe he was committing a crime when they seized and searched him.The State responded, arguing the lobby of Wheatshocker was not curtilage and the seizure of Bannon was a valid investigatory stop.

Following an evidentiary hearing, the district court found the lobby of Wheatshocker was public and not within the curtilage of Bannon's apartment, and the officers had reasonable suspicion of a firearm-related crime or that the impersonation of a law enforcement officer had been or was being committed when they contacted Bannon.Therefore, the pat-down and discovery of Bannon's concealed firearm was constitutionally permissible.A jury subsequently convicted Bannon of criminal carrying of a weapon.

In an opinion dated December 11, 2015, this panel found Bannon's motion to suppress should have been granted because a warrantless pat-down search of Bannon occurred without any evidence that a law enforcement officer had an actual, subjective belief Bannon was armed and presently dangerous.With this lack of evidence, we went on to say the State failed to present evidence to support the second step of a Terry stop—that the officers were reasonably concerned for their safety or the safety of others to justify the move to a warrantless pat-down search.

The State requested the Kansas Supreme Court review our decision.The Supreme Court accepted review and found a hybrid approach applied to the second step of the Terry stop: testimony as to an officer's subjective belief or fear is a factor to be considered in the objective analysis of the totality of circumstances, but the absence of such testimony does not invalidate the reasonableness of a frisk.State v. Bannon , 306 Kan. 886, 896, 398 P.3d 846(2017).

ANALYSIS

Wheatshocker lobby is not part of Bannon's land or abode.

On appeal, Bannon argues the district court erred when it denied his motion to dismiss because he was legally allowed under K.S.A. 2012 Supp. 21-6302(a)(4) to carry a concealed weapon while on his land or in his abode.Bannon further claims the district court misconstrued the statute when it found the Wheatshocker lobby had to be under Bannon's exclusive control to be considered his land or abode.

Interpretation of a statute is a question of law over which appellate courts have unlimited review.State v. Eddy , 299 Kan. 29, 32, 321 P.3d 12(2014).Bannon was charged with criminal carrying of a weapon in violation of K.S.A. 2012 Supp. 21-6302(a)(4), which states: "(a) Criminal carrying of a weapon is knowingly carrying ... any pistol, revolver or other firearm concealed on one's person except when on the person's land or in the person's abode or fixed place of business."

Bannon asks this court to find the Wheatshocker lobby was either (1) Bannon's land or (2) an extension of his abode.In his reply brief, Bannon also argues the language of K.S.A. 2012 Supp. 21-6302(a)(4) is clear and unambiguous.

The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained.State v. Jordan,303 Kan. 1017, 1019, 370 P.3d 417(2016).An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings.State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331(2016).When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words.Barlow , 303 Kan. at 813, 368 P.3d 331.Where there is no ambiguity, the court need not resort to statutory construction.Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent.Barlow , 303 Kan. at 813, 368 P.3d 331.

While it is clear a person is exempt from prosecution for carrying a concealed weapon on the person's land or abode under K.S.A. 2012 Supp. 21-6302(a)(4), what is considered...