State v. Carr
| Decision Date | 27 October 2017 |
| Docket Number | No. 116,228,116,228 |
| Citation | 54 Kan.App.2d 780,406 P.3d 403 |
| Parties | STATE of Kansas, Appellee, v. Ralfeal Eron CARR, Appellant. |
| Court | Kansas Court of Appeals |
Christopher M. Joseph and Carrie E. Parker, of Joseph, Hollander & Craft LLC, of Topeka, for appellant.
Jodi Litfin, deputy district attorney, Michael F. Kagay, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Green, P.J., Buser and Leben, JJ.
Ralfeal Eron Carr appeals his convictions for possession of marijuana and aggravated battery, the latter conviction based on Carr's alleged participation in a drive-by shooting and police chase. Carr argues that significant evidence against him for both charges came from an unlawful car stop and shouldn't have been admitted. We agree: officers lacked reasonable suspicion to believe Carr was in the vehicle they stopped. Accordingly, the marijuana found after the stop in his pocket can't be used as evidence and Carr's marijuana-possession conviction must be reversed.
The State used additional evidence found through the unlawful car stop to support Carr's aggravated-battery conviction; the State argues that we should find any error in the admission of that evidence harmless. But on the standard that applies here, we can only find the error harmless if we conclude beyond a reasonable doubt that its admission didn't lead to Carr's conviction. We are unable to make that finding here. One of the items found on Carr was a key to the vehicle apparently used in the drive-by shooting. While there was other circumstantial evidence that Carr had been in that vehicle when the crime was committed, having the vehicle key in his possession only a short time later formed a critical link. Given the circumstantial nature of the case, we cannot conclude beyond a reasonable doubt that the jury would have convicted Carr without the evidence illegally obtained at the car stop. We therefore reverse his aggravated-battery conviction as well and send the case back to the district court for a new trial on that charge.
Two shootings in Topeka in July 2015 are at the heart of this case. On July 17, Royelle Lamont Miller was outside in front of his house when someone in a car driving by shot him. The next day, someone shot and killed Antwon Love. (Since we will refer to several people from the same family and none of the significant parties or witnesses have the same first name, we will generally refer to the witnesses and actors by their first names.)
Shortly after Royelle was shot, around 9 p.m., Officers Barry Nelson and Scott Koch from the Topeka Police Department saw a dark-colored Dodge Durango blow through a stop sign in the Hi-Crest neighborhood. The officers attempted to stop the Durango, but after initially pulling over, it sped away, resulting in a police chase. During the chase, the Durango ran through a second stop sign going approximately 70 miles per hour. At some point, the officers lost sight of the Durango, but they later recovered a gun they believed was thrown from it during the chase.
Around the same time, the officers learned that a shooting had occurred nearby, so they responded to that scene. Royelle, who had been outside the house at the time of the shooting, had been shot in his leg. He said a dark-colored car drove by when he was shot but he did not see who shot him.
Andre Wallace and Jesse Hughes were also there when Royelle was shot, and police found some bullet holes in the house. Andre initially told police that he was in the house and did not see the shooting. He later testified at trial that he could not remember what had happened or where he had been. Jesse testified that he "heard gun shots and hit the floor." After Royelle was shot, Jesse walked away from the scene.
Police then spoke with Andre's mother, Wanda Wallace, who lived next door. Officer Nelson testified that Wanda said she had seen someone driving around the block several times earlier that day in a black SUV "holding his head and making threats." Wanda allegedly told Nelson that she wasn't sure of the person's name but knew that he was related to the Kelleys and lived in a yellow house across the street from the Kelleys. Based on his knowledge of the Kelleys and the neighborhood, Nelson asked her if the person's name was Ralfeal Carr, and she said yes. Wanda later spoke with a detective and told him a similar account, telling him that Andre and Carr had "bad blood." But at trial, Wanda said she did not remember anything that had happened, generally refused to answer questions, and continually asked to go home while on the stand, even after confronted with video footage of her speaking with police.
While Nelson was speaking with Wanda, Georgia Kelley arrived. Georgia owned the Durango that had led officers on the chase. She initially told police that she had loaned her Durango to her nephew Carr that day. Georgia later testified at trial that she had loaned the car to her other nephew, Antwon.
Antwon was killed the next day, July 18, near the site of the first shooting. Police speculated that his murder might have been in retaliation for the shooting of Royelle the day before.
On the day Antwon was killed, officers were in the neighborhood trying to gather more information about the shooting of Royelle and saw a black Ford Explorer. Nelson associated the Explorer with Carr, so he stopped it. Carr and his aunt, Georgia, were in the Explorer; Georgia was driving and Carr was in the front passenger seat. The officers arrested Carr and searched him as part of the arrest, finding a Dodge car key, a cell phone, and over $5,000 in cash in his pocket. At the police station, officers again searched Carr and found a piece of loose marijuana in his front left pocket.
Without a search warrant, police used Carr's cell phone to determine its phone number. Police then sent a letter to the associated cell-phone company, Verizon, to preserve the data related to the phone number until police could get a search warrant for the records. After police got a search warrant, Verizon produced the records, and the police were able to use cell-tower information from the records to locate the Durango in the garage of William Lewis' house.
Lewis testified that Antwon had showed up around 10 p.m. on the night of the shooting and asked if he could put his Durango in the garage. According to Lewis, Antwon said that he had had a fight with his girlfriend and wanted to hide his car so she wouldn't damage it. Police later confirmed that the Dodge key found on Carr belonged to the Durango.
On further review of the cell-tower information in Carr's phone records, police determined that Carr's phone was in the area where police pursued the Durango, where the shooting of Royelle occurred, and, shortly after that shooting, the Lewis residence, where the Durango was later found.
The State charged Carr with aggravated battery, criminal discharge of a firearm at an occupied dwelling, eluding police, possession of marijuana, speeding, and two counts of failure to stop at a stop sign.
Before trial, Carr filed a motion to suppress some of the evidence, arguing that officers had violated his constitutional rights by stopping the Explorer without sufficient legal cause and by using his cell phone to get the number without getting a search warrant. The district court concluded that although the vehicle stop was lawful, the police had committed an unlawful search of Carr's cell phone. See Riley v. California, 573 U.S. ––––, 134 S.Ct. 2473, 2493-94, 189 L.Ed.2d 430 (2014) (). Nevertheless, the district court concluded that the State could use the cell-phone records at trial because police would have inevitably discovered Carr's cell-phone number by other lawful means and used it to get a search warrant.
After a four-day jury trial, the jury found Carr guilty of aggravated battery and possession of marijuana but not guilty of the other charges. The district court sentenced Carr to 100 months in prison for aggravated battery plus 12 months in the county jail for the marijuana conviction, with the county jail time to begin after the prison sentence.
Carr then appealed to our court.
Carr's primary argument on appeal is that the police didn't have legal cause to stop the Ford Explorer, so the stop violated his constitutional rights. Because the car stop was unlawful, Carr contends that the district court should have granted his motion to suppress the evidence found in it—the marijuana, the Dodge Durango key, the $5,000 in cash, and his cell phone. Carr also argues that without the cell phone, the State would not have obtained his cell-phone records, so they too should have been excluded.
If Carr is right and all of this evidence should have been excluded, then his convictions cannot stand. The State concedes that the marijuana conviction cannot stand if the car stop was unlawful. And the evidence on the aggravated battery charge was greatly strengthened by evidence found as a result of the stop—the Durango key and the cell-phone records.
When the defense files a motion to suppress evidence arising from a police stop, the State has the burden of proof to show that the stop was lawful. See State v. Cleverly, 305 Kan. 598, 605, 385 P.3d 512 (2016). On appeal, we must accept the factual findings of the district court when substantial evidence supports them. We then review the legal conclusions to be drawn from those facts independently, with no required deference to the district court. State v. Howard, 305 Kan. 984, 988-89, 389 P.3d 1280 (2017).
The Fourth Amendment to the United States Constitution protects us from unreasonable searches or seizures. A vehicle stop is a seizure under the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ; City of Atwood v. Pianalto, 301 Kan. 1008, 1011, 350 P.3d...
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