State v. Cleverly

• Citation: 385 P.3d 512
• Decision Date: 23 December 2016
• Docket Number: No. 111,282,111,282
• Parties: STATE of Kansas, Appellee, v. Gerald E. CLEVERLY, Jr., Appellant.
• Court: United States State Supreme Court of Kansas

385 P.3d 512

STATE of Kansas, Appellee,

v.Gerald E. CLEVERLY, Jr., Appellant.

No. 111,282

Supreme Court of Kansas.

Opinion filed December 23, 2016

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause, and Randall L. Hodgkinson, of the same office, was on the brief for appellant.

Joseph M. Penney, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

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

Gerald E. Cleverly, Jr., was a passenger in a vehicle detained for a traffic stop, after which a law enforcement officer conducted a series of searches of Cleverly and his effects, ultimately discovering methamphetamine in a cigarette package. Cleverly appealed his possession of methamphetamine conviction, claiming the district court erred in denying his motion to suppress the evidence obtained during an unlawful warrantless search. The Court of Appeals found that the final search of the cigarette package was consensual and sufficiently attenuated from an earlier unlawful pat-down of Cleverly. We granted review, and we reverse the Court of Appeals and district court, remanding to the district court for further proceedings.

FACTUAL AND PROCEDURAL OVERVIEW

At approximately 1:15 a.m. on January 30, 2012, Cleverly was a passenger in a pickup driven by Chris Jones when El Dorado Police Officer Brent Michael Buckley stopped the vehicle based on the officer's observation that neither occupant of the pickup was wearing a seat belt. The officer would later testify that, after he activated his emergency lights to effect the traffic stop, he observed both occupants making "furtive movements."

About 3 minutes after the stop, Officer Sam Humig arrived on the scene and Officer Buckley asked him to identify the passenger in order to write a citation for a seat belt violation. Cleverly did not have identification on his person, but Officer Humig was able to use the name and date of birth provided by Cleverly to run a warrants check and discover that there was nothing outstanding on Cleverly. Neither officer issued Cleverly a traffic ticket.

Meanwhile, Officer Buckley's investigation of the driver, Jones, led to the issuance of a ticket for no proof of insurance. The officer directed Jones to exit and proceed to the rear of his vehicle where the officer would explain the ticket to Jones. Officer Buckley let Officer Humig know that his covert plan was to "attempt a consensual search of the vehicle, after giving Jones the citation." Accordingly, after having Jones sign the ticket and giving him the driver's copy, Officer Buckley asked Jones "if he had time for a couple more questions." Although the record is short on details, Cleverly does not dispute that Jones subsequently gave the officer consent to search the vehicle.

Prior to Officer Buckley's search of the vehicle, Officer Humig directed Cleverly to exit the vehicle and subjected him to a nonconsensual, involuntary pat-down search. That search produced no evidence. The officer then directed Cleverly to stand in front of Officer Buckley's vehicle during the search of Jones' vehicle. Cleverly placed the items he had carried out of the vehicle, including two packs of cigarettes and his cell phone, on the hood of the patrol car. Officer Humig and Cleverly engaged in conversation during Officer Buckley's vehicle search, and, at some point, Cleverly asked for, and was granted, permission to smoke. But Officer Humig denied Cleverly's request to make a call on his cell phone.

Officer Buckley's search of Jones' vehicle produced a glass pipe with scorch marks hidden in a pile of laundry between the driver and passenger seats. Officer Buckley suspected the pipe had been used to smoke methamphetamine. He arrested Jones and advised Officer Humig that he had found the pipe. Around that time, a third officer, Nicholas Piatt, arrived on the scene to assist.

Despite later testifying that he had no articulable facts suggesting that Cleverly had committed any crime, Officer Humig interrogated Cleverly, specifically seeking incriminating evidence as to whether Cleverly possessed marijuana, cocaine, or methamphetamine. Then, the officer requested consent to search Cleverly's person again. This second, more thorough, search did not produce any drugs or other incriminating evidence. Officer Humig then asked Cleverly if the officer could search the items on the patrol car hood, particularly the cigarette boxes because "this is where kids like to hide their weed these days." Cleverly handed the cigarette packages to the officer. One cigarette package was unopened, but the other had three small baggies behind the foil lining, two of which contained a white crystalline substance later confirmed to be methamphetamine.

Cleverly was arrested and charged with possessing methamphetamine and paraphernalia. The district court denied Cleverly's motion to suppress, ultimately determining that the search of the cigarette packages was based upon a valid consent. The case proceeded to a bench trial on stipulated facts; the State dismissed the paraphernalia count; the trial court convicted Cleverly on the methamphetamine charge; and the court imposed a nonprison sanction of 18 months' probation with an underlying prison term of 15 months.

Cleverly appealed to the Court of Appeals, arguing that he was illegally detained after the traffic stop ended and that the evidence from the cigarette package should have been excluded due to the taint of the illegal detention. The panel acknowledged that, for Fourth Amendment purposes, the execution of a traffic stop effects a seizure of a passenger in that vehicle, as well as the driver. But, citing to State v. Spagnola , 295 Kan. 1098, Syl. ¶ 3, 289 P.3d 68 (2012), the panel held that Jones agreed to transform the circumstance from a traffic stop detention to a voluntary encounter when he consented to Officer Buckley's search of his vehicle. Then, stepping out on its own, without citation to precedent, the panel promulgated a new rule, to-wit: "Thus, it follows that the passenger's presence becomes voluntary or consensual once the driver gives consent or voluntarily remains on the scene after the traffic stop concludes." State v. Cleverly , No. 111,282, 2015 WL 4716231, at *4 (Kan. App. 2015) (unpublished opinion).

The panel, noting that the video of the stop was not admitted into evidence, discounted Cleverly's assertions that he was detained for at least 18 minutes and that he was not allowed to use his phone. Cleverly , 2015 WL 4716231, at *5. Then, the panel found that Cleverly's continued presence was voluntary because three police officers were not a threatening presence and there was no testimony indicating officers used aggressive language or tone of voice, no prolonged retention of Cleverly's identification, no request to accompany an officer somewhere, no interaction in a nonpublic place, no absence of other members of the public, and no display of emergency lights. Cleverly , 2015 WL 4716231, at *5 (citing State v. Murphy , 296 Kan. 490, 493, 293 P.3d 703 [2013] ).

The panel did find that Officer Humig's pat-down search of Cleverly at the beginning of the "voluntary encounter" was not justified by the facts and circumstances that existed at the time, i.e. , was not a lawful search for officer safety. Cleverly , 2015 WL 4716231, at *5. Nevertheless, the panel noted that the State had not obtained any incriminating evidence from that search, suggesting that Cleverly had suffered no prejudice from the unlawful search during the voluntary encounter. Cleverly , 2015 WL 4716231, at *6.

Although the panel labeled the period during which Cleverly was searched multiple times as a voluntary encounter and not an investigatory detention, it nevertheless stated that even if this encounter was an investigatory detention, the ultimate discovery of the evidence was sufficiently attenuated from any illegal search as to be admissible. Cleverly , 2015 WL 4716231, at *6 (citing State v. Talkington , 301 Kan. 453, 484, 345 P.3d 258 [2015] ). But then the panel declared, without further explanation, that an analysis of the attenuation factors was unnecessary "because we cannot say that the evidence would not have been found absent the allegedly illegal actions of the police." Cleverly , 2015 WL 4716231, at *6.

The panel affirmed the district court's denial of Cleverly's motion to suppress the evidence obtained from the search of his personal effects. We granted Cleverly's petition to review the panel's decision.

LAWFULNESS OF THE SEARCH OF A PASSENGER'S PERSONAL EFFECTS

The Fourth Amendment to the United States Constitution protects the right of an individual to be secure in his or her person and effects and not to be subject to unreasonable searches and seizures by the government. State v. Ryce , 303 Kan. 899, 909, 368 P.3d 342 (2016). Section 15 of the Kansas Constitution Bill of Rights offers at least the same protections. Ryce , 303 Kan. at 909, 368 P.3d 342 ; State v. Williams , 297 Kan. 370, 376, 300 P.3d 1072 (2013). As the Court of Appeals noted, "[a]ny warrantless search or seizure is presumptively unreasonable unless it falls within one of Kansas' recognized exceptions to the search warrant requirement. [Citations omitted.]" Cleverly , 2015 WL 4716231, at *4.

A valid traffic stop—based on the officer's reasonable suspicion that a crime (including a traffic offense) is being committed—is a permissible seizure within the investigatory detention exception established by Terry v. Ohio , 392 U.S. 1, 18–19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), so long as the scope and duration of the seizure is strictly tied to and justified by the circumstances that rendered the initiation of the stop proper. Here, the panel found that Officer Humig's request for consent to search Cleverly and his property "exceeded the scope and duration of the traffic stop, so it had to have been based on another exception in...