State v. Barker

• Decision Date: 16 April 1993
• Docket Number: No. 67953,67953
• Citation: 252 Kan. 949,850 P.2d 885
• Parties: STATE of Kansas, Appellant, v. Michael BARKER, Appellee.
• Court: Kansas Supreme Court

Page 885

850 P.2d 885

252 Kan. 949

STATE of Kansas, Appellant, v. Michael BARKER, Appellee.

No. 67953.

Supreme Court of Kansas.

April 16, 1993.

Syllabus by the Court

1. Sobriety checklanes have been found to be constitutional under the Fourth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights § 15. The thirteen factors established in State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983), are relevant in balancing State interests against intrusion upon individual rights. Specific legislative authorization is not a prerequisite to the validity of sobriety checklanes.

2. The Fourth Amendment to the United States Constitution protects individuals against arbitrary invasions by government officials by imposing a standard of reasonableness upon the exercise of those officials' discretion. Generally, stopping and detaining a motorist is an unreasonable seizure for purposes of the Fourth Amendment unless the law enforcement officer making the stop has at least some articulable and reasonable suspicion that the motorist or an occupant is otherwise subject to seizure for violating the law. The "checklane" cases have carved out an exception to this general rule in circumstances in which the checklane procedures properly balance the public interest against the interference with personal freedom.

3. State v. Deskins factors for determining whether a checklane meets the balancing test in favor of the State are considered and applied.

4. A canine sniff of the exterior of a vehicle is not a search for purposes of the Fourth Amendment to the United States Constitution.

5. The right of a United States citizen to travel from one state to another is a privilege of national citizenship and a liberty interest protected by the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution. A state may neither tax nor penalize a citizen for exercising a citizen's right to leave one state and enter another. Such right is not denied during a valid checklane stop that meets the requirements of State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983).

6. In order to establish probable cause for the search of a vehicle based on a canine sniff, some foundation testimony is necessary to establish that the "alert" of the dog provided probable cause. A description of the dog's conduct, training, and experience by a knowledgeable person who can interpret the conduct as signaling the presence of a controlled substance would constitute the minimum requirement for finding probable cause.

Ellen H. Mitchell, Asst. County Atty., argued the cause, and Thomas R. Stanton, Asst. County Atty., Julie McKenna, County Atty., and Robert T. Stephan, Atty. Gen., were on the brief, for appellant.

Benjamin C. Wood, Special Asst. Appellate Defender, Olathe, argued the cause, and Jessica R. Kunen, chief appellate defender, Topeka, was with him on the brief, for appellee.

DAVIS, Justice:

This is an interlocutory appeal by the State from an order suppressing evidence seized in connection with a traffic checklane operation. We affirm the trial court's suppression of evidence on the narrow basis that because of a lack of foundation evidence, the State failed to establish probable cause for the search of defendant's automobile.

On November 20, 1991, the Kansas Highway Patrol and other law enforcement agencies set up a checklane as part of a law enforcement effort called "Span 70." The checklane was part of a national law enforcement project, the purpose of which was to create a strong law enforcement presence along the entire expanse of Interstate 70. The traffic checklane was a local multijurisdictional law enforcement effort to focus on checking drivers' licenses and reducing "accident-related causative factors."

The operation was implemented on November 20, 1991, from 2:00 a.m. until 6:00 a.m. A briefing was held for all personnel involved, including the Kansas Highway Patrol, Saline County Sheriff's Department, Dickinson County Sheriff's Department, Saline County Attorney's Office, Kansas Department of Transportation, and the Bureau of Alcohol, Tobacco and Firearms prior to the commencement of the checklane stops.

The checklane was set up at a rest area just west of Solomon in Saline County in such a way that all traffic on the interstate, whether eastbound or westbound, could be funneled into the rest area and stopped. Signs were posted approximately 500 feet from the entrances to the rest area, advising motorists of the checklane. There was no advance publicity regarding the checklane.

The defendant entered the checklane in his car at approximately 4:35 a.m. Trooper Rick Bigham, who was checking defendant's driver's license, smelled alcohol and asked defendant to submit to a preliminary breath test. Defendant agreed to do so and went to the patrol car to take the test. The test indicated that his blood alcohol level was below the legal limit. At some point during defendant's detention, another officer walked a narcotics-detecting dog around defendant's car. The dog "alerted." After the dog's response, Trooper Michael Murphy searched the front seat area of defendant's car and found a bag containing what appeared to be marijuana. The defendant was arrested, and an inventory search of his automobile was conducted. Because it was cold on that night, Trooper Murphy took a coat from inside the defendant's automobile and gave it to the defendant to wear. Prior to giving defendant his coat, however, the trooper checked the pockets for weapons and contraband. In one pocket, the trooper found a white envelope containing a white powdery substance. Trooper Murphy made the statement, "This is cocaine or methamphetamine." Trooper Murphy testified that the defendant replied that it was his cocaine from a year ago.

The defendant moved to suppress the physical evidence and to suppress his statement to Trooper Murphy. The district court granted defendant's motion on the following grounds:

"[T]here is no statutory authority for roadblock traffic stops and the roadblock traffic stop of the defendant's vehicle on November 20, 1991 is an unconstitutional violation of the separation of powers between the legislative and executive branches of Kansas government; that the roadblock traffic stop on November 20, 1991 violates the defendant's right of travel; that the roadblock traffic stop of November 20, 1991 was not conducted in compliance with the requirements of State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983); that the resulting search of the defendant's car occurred in violation of the defendant's rights under the 4th and 14th Amendments to the United States Constitution and Section 15 of the Bill of Rights of the Kansas Constitution. The defendant's car was searched by a drug dog without probable cause being established on the record in that no evidence was introduced from the handler of the dog as to training, background, characteristics and capabilities of the dog which would justify intrusion into the defendant's vehicle and no evidence of scientific reliability or acceptance per the Frye test was introduced to suggest reliability of the handler's perceptions and/or the dog's reactions; and that, therefore, for all of the above and foregoing reasons, as fully set forth on the record of the hearing, the evidence obtained as a result of the unlawful stop and search of the defendant's car, including the physical evidence, and defendant's statements should be suppressed as evidence at the defendant's trial."

In its appeal, the State identifies the following six issues:

(1) The district court erred in ruling that legislative authority is required for the establishment of checklane roadblocks;

(2) the district court erred in ruling that the checklane in this case failed to comply with the requirements of State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983);

(3) the district court erred in ruling a narcotics dog "sniff" of the exterior of a vehicle constitutes a search;

(4) the district court erred in ruling that the Frye test applies to the use of a narcotics dog;

(5) the district court erred in ruling that the stop of defendant's automobile violated his right of travel; and

(6) the district court erred in suppressing the substance found in the defendant's coat pocket and his subsequent statement concerning the substance.

(1) Legislative Authorization

Upon oral argument, the defendant concedes that this issue has been resolved against him in our recent opinion of Davis v. Kansas Dept. of Revenue, 252 Kan. 224, Syl. p 1, 843 P.2d 260 (1992):

"Sobriety checkpoints have been found to be constitutional under the United States Constitution Fourth Amendment and the Kansas Constitution Bill of Rights § 15. Thirteen factors established in State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983), are relevant in balancing State interests against intrusion upon individual rights. Specific legislative authorization is not a prerequisite to the validity of sobriety checkpoints." (Emphasis added.)

(2) State v. Deskins

Law enforcement personnel's compliance with procedural safeguards is essential when they detain citizens at checklanes. Such stops and detentions are seizures within the meaning of the Fourth Amendment to the United States Constitution "even though the purpose of the stop is limited and the resulting detention quite brief." State v. Deskins, 234 Kan. 529, Syl. p 3, 673 P.2d 1174. Accord Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979). The United States Supreme Court recognizes that

" '[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.' Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 [11 S.Ct. 1000, 1001, 35 L.Ed. 734] (1891)." Terry v....