State v. DeMarco

• Decision Date: 23 January 1998
• Docket Number: Nos. 78065,78066,s. 78065
• Citation: 263 Kan. 727,952 P.2d 1276
• Parties: STATE of Kansas, Appellant, v. Joseph DeMARCO, Appellee. STATE of Kansas, Appellant, v. Raymond BENNICI, Appellee.
• Court: Kansas Supreme Court

Page 1276

952 P.2d 1276

263 Kan. 727

STATE of Kansas, Appellant, v. Joseph DeMARCO, Appellee.

STATE of Kansas, Appellant, v. Raymond BENNICI, Appellee.

Nos. 78065, 78066.

Supreme Court of Kansas.

Jan. 23, 1998.

Syllabus by the Court

1. In reviewing the district court's suppression of evidence, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review.

2. The State bears the burden on a motion to suppress evidence of proving the lawfulness of the search and seizure.

3. Under K.S.A. 8-1548, a lane change signal must be made within 100 feet of the point where the vehicle makes the lane change, regardless of whether there is any traffic moving in front of or behind the vehicle.

4. "Reasonable suspicion" means a particularized and objective basis for suspecting the person stopped is involved in criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of information possessed by the detaining authority and the information's degree of reliability. Quantity and quality are considered in the totality of the circumstances--the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.

5. In a case involving a traffic stop for an unsignaled lane change under K.S.A. 8-1548, followed by the seizure of 190 pounds of marijuana in the trunk of a rental car traveling from California to Florida, the record is reviewed and it is held: (1) The traffic stop was legal, and (2) the district court's suppression of the marijuana as evidence was correct.

Joe Shepack, County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with him on the brief for appellant.

Howard A. Sohn, Miami, FL, argued the cause and was on the brief for appellee DeMarco.

Michael K. Sheahon, of Sweet & Sheahon, Salina, argued the cause for appellee Bennici and was on the briefs for both appellees.

SIX, Justice:

This is a Fourth Amendment traffic stop search and seizure case. The question is whether the officer made a valid stop and, if so, whether he thereafter had reasonable and The State appeals dismissal of the complaints against defendants Joseph DeMarco and Raymond Bennici for possession of marijuana with intent to distribute. The district court granted defendants' motions to suppress evidence, 190 pounds of marijuana, found in the trunk of the rental car. Our jurisdiction is under K.S.A. 22-3602(b)(1) (the State's appeal from an order dismissing a complaint).

articulable suspicion that the defendants were engaged in illegal activity.

We hold that the traffic stop, because of an unsignaled lane change, K.S.A. 8-1548, was valid. However, the district court was correct in finding that the detention was unreasonable and in dismissing the complaints after granting defendants' motions to suppress.

FACTS

At approximately 8:45 a.m. on February 17, 1996, Trooper Michael Weigel, after completing a traffic stop on Interstate 70, entered his patrol car, which was parked on the right shoulder of the eastbound lanes. When he looked in his rear-view mirror to check for traffic, he saw the defendants' car approaching from the west. The car made a lane change from the outside (right) to the inside (left or passing) lane without signaling. After the car passed Weigel, it signaled a lane change to return to the outside lane. The car had an out-of-state temporary tag in the back window. He pulled onto the highway and accelerated to catch the car. Weigel drove alongside to see if the occupants, DeMarco and Bennici, were wearing seat belts. They were. He pulled the car over and started the video camera mounted in his patrol car.

Weigel explained to defendants why he made the stop and told them he was not going to give them a ticket. DeMarco, the driver, talking rapidly, said that he did not want to endanger Weigel and apologized for not signaling. Weigel asked where they were coming from. DeMarco said "Los Angeles" and added that they had stopped in Salt Lake City to visit relatives. Weigel asked if the car was rented. DeMarco responded that it was rented by himself and Bennici's brother and handed over the rental documentation. Weigel requested DeMarco's driver's license and Bennici's identification. Weigel called the dispatcher to check on any outstanding warrants on either DeMarco or Bennici, their licenses, and their criminal history.

While waiting to hear from the dispatcher, DeMarco, who was wearing a short-sleeved shirt, agreed to come to the patrol car. Weigel asked where they were from and where they were heading. DeMarco said he was from Florida, adding that "we" had driven to Los Angeles, vacationing there about 3 days before renting the car to return to Florida. DeMarco was not asked who he included in "we." From other statements DeMarco made then, it appears that DeMarco, Bennici's brother, and another friend had traveled by car from Florida to Los Angeles. Bennici's brother flew back to Florida, and the other friend left to return to Florida before DeMarco and Bennici left California. However, Weigel believed that "we" included DeMarco and Bennici. From DeMarco's statements, it was not clear if Bennici was included in "we" and if DeMarco was telling Weigel that Bennici also was in the group that drove from Florida to Los Angeles.

Weigel asked Bennici about his trip to Los Angeles and how long Bennici had been there. Bennici said that he had flown to Los Angeles and had been there about 3 days. DeMarco had arrived in Los Angeles, before Bennici did. Weigel asked Bennici how DeMarco had traveled to Los Angeles, and Bennici said that he was "pretty sure" DeMarco had flown in. Weigel returned to his patrol car and asked DeMarco how he and Bennici had traveled to Los Angeles. DeMarco said that he had driven and Bennici had flown to Los Angeles.

The rental car documentation was in order, showing that the car was rented up to February 20, 1996. At approximately 9:03 a.m., the dispatcher notified Weigel that the driver's licenses checked out as valid. However, when Weigel asked about criminal history, the dispatcher said that it was "still printing" which, according to Weigel, meant that a lengthy criminal record was printing out on one or both defendants. Weigel issued a Approximately 20 minutes later, Trooper Heim arrived with a narcotics dog. The dog immediately jumped at the trunk of the rental car, scratching vigorously, showing that it smelled drugs. The troopers opened the trunk and discovered approximately 190 pounds of marijuana packaged in luggage.

warning ticket to DeMarco, returned his paperwork to him, and then asked if he could search the trunk of the car. DeMarco refused to consent to the search. As the conversation continued, Weigel asked for consent to search on several occasions and each time was refused. At 9:05 a.m., Weigel called the dispatcher and requested the canine unit.

DeMarco and Bennici were bound over for trial at the preliminary hearing.

The Suppression Hearing

Trooper Weigel identified eight indicators or factors at the suppression hearing which caused him to be suspicious that DeMarco or Bennici may have been concealing drugs: (1) DeMarco was nervous when first approached, and this nervousness escalated. He was overly talkative and fidgety. His hands were shaking when he first handed over the rental documents. (2) DeMarco said they were coming from Los Angeles, which is a major source city for narcotics. (3) DeMarco and Bennici were taking an out-of-the-way route to travel from Los Angeles to Florida. (4) They were traveling in a rental car (drug traffickers frequently use rental vehicles to haul large quantities of drugs). One of the renters, Bennici's brother, was absent, which is also common with drug traffickers. (5) Their route, I-70, is a major drug courier highway. (6) The rental contract showed that the car was to be returned on February 20, 1996, allowing 3 days to drive to Florida. (7) DeMarco and Bennici had inconsistent stories about how DeMarco had traveled to Los Angeles from Florida. (8) Before asking for consent, Weigel learned from the dispatcher that the computer was printing out a criminal record of some type on one or both of the defendants.

Weigel did not mention factors (3), (5), (6), and (8) during the preliminary hearing.

In Weigel's view, DeMarco's refusal to consent to the search was significant because "the majority of the time if I have somebody [who] refuses to consent we find drugs if the dog is called." However, Trooper Weigel acknowledged that the refusal is "after the fact."

Trooper Weigel underwent extensive cross-examination by both defense attorneys. Weigel did not observe any other eastbound traffic between his vehicle and DeMarco's as DeMarco approached and passed the patrol car. There was no vehicle behind DeMarco when DeMarco made the unsignaled lane change. Weigel acknowledged that there are other major drug source cities on the West Coast or in the Southwest, such as San Diego, Tucson, El Paso, or San Antonio. Weigel had never met DeMarco before and did not know whether he was normally an overly talkative, fidgety person who moved his hands while talking. Weigel acknowledged that I-70 ends somewhere around Salt Lake City.

Weigel admitted that he had previously arrested persons for transporting drugs in private vehicles and also in rental cars. Before stopping DeMarco's car, Weigel had stopped four vehicles that morning, all with out-of-state tags.

The district court found...