State v. Epperson

• Decision Date: 26 July 1985
• Docket Number: No. 56933,56933
• Parties: STATE of Kansas, Appellant, v. Rene E. EPPERSON and Michael J. Auerbach, Appellees.
• Court: Kansas Supreme Court

Page 761

703 P.2d 761

237 Kan. 707

STATE of Kansas, Appellant, v. Rene E. EPPERSON and Michael J. Auerbach, Appellees.

No. 56933.

Supreme Court of Kansas.

July 26, 1985.

Syllabus by the Court

1. Police conduct in a "stop and frisk" situation must be judged under the reasonable searches and seizures clause of the Fourth Amendment to the Constitution of the United States and the judicial interpretations thereof.

2. The "stop" authorized by K.S.A. 22-2402 requires that a law enforcement officer must have prior knowledge of facts or observe conduct of a person which causes the officer to reasonably suspect that such person is committing, has committed, or is about to commit a crime.

3. Whenever a police officer accosts a person and restrains his freedom, he has "seized" that person.

4. The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.

5. The only justification of a Terry search under K.S.A. 22-2402 is the protection of police officers and others nearby. The preservation of evidence is not one of the purposes of such a search.

6. Ordinarily, a passenger, one who is neither an owner nor in possession of an automobile, has no standing to challenge a search of the automobile.

7. Under the facts of this case, one who is subject to an unlawful stop and seizure of his person has standing to challenge the search which follows the unlawful stop and seizure.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the briefs for appellant.

Daniel E. Monnat, of Fisher & Monnat, of Wichita, argued the cause, and Stanley Spurrier, III, of the same firm, was with him on the brief for appellee Rene E. Epperson.

Jack Focht, of Focht, Hughey & Hund, of Wichita, was on the brief for appellee Michael J. Auerbach.

MILLER, Justice:

This is an interlocutory appeal by the State in a criminal case from the order of the trial court suppressing evidence. The Court of Appeals, in a per curiam unpublished opinion, affirmed the trial court's decision under Rule 7.042(b), (d) and (e) (235 Kan. lxxiv). We granted the State's petition for review.

The relevant facts are not in dispute. On Sunday, June 19, 1983, shortly after 2:00 o'clock a.m., Officer Harrison of the Wichita police was on routine patrol. He was driving a marked police vehicle and he was in uniform. There was a problem with burglaries in this particular area, and the officer drove down an alley, checking the rear entrances of various business establishments for signs of forcible entry. He noticed nothing unusual. As he emerged on Mt. Carmel Street, he saw a black BMW, an expensive automobile, legally parked, facing the north. He saw that the car was occupied by two men, later identified as the defendants Epperson and Auerbach. When the occupants saw the patrol car, they appeared startled and the passenger made a quick reach to the floorboard area and then straightened back up. The officer pulled out of the alley as quickly as possible and parked in the middle of the street near the BMW. The occupants had emerged from their car and were just starting to walk away.

The officer left his car very quickly and, in order to detain the men who appeared to be leaving, the officer said, "Excuse me," or "Sir," or "Wait," or "Wait a minute," and the men stopped. Both were still within three feet of the BMW, one on each side. The officer asked them if they lived in the area and they said no. He asked them what they were doing and the driver responded, "We were just leaving." Officer Harrison told them that their response did not answer the question and he again asked them what they were doing there. He got no answer from them, only a shrug.

There were only two businesses in the area open at that time of the night, a car wash and a private club. The BMW was parked about a hundred and fifty yards from the private club and not near any residence. Mt. Carmel Street was deserted; there were no cars of club patrons parked nearby and there was no traffic on the street. The officer noted that the window on the driver's side of the BMW was rolled down and, without entering the car, shined his flashlight inside. He observed an axe handle sticking out from under the driver's seat. He opened the unlocked door, retrieved the axe handle and asked the driver what it was for. The driver replied that he carried it for protection. At this time the officer did not frisk or arrest either of the men. He shined his flashlight under the driver's seat and saw nothing unusual. He then leaned in and shined his flashlight on the floorboard under the passenger seat, and he saw two clear plastic "ziplock" baggies under that seat. He examined the baggies and determined that they probably contained cocaine. He then placed the two men under arrest, handcuffed them, patted them down and read them their Miranda rights. He asked the driver, Auerbach, whose cocaine it was, and Auerbach responded, "It's not mine." Backup officers soon arrived and both Auerbach and the passenger, Epperson, were taken to headquarters, where they were searched and more evidence was seized. Officer Harrison testified on cross-examination that up until the point in time when he examined the envelopes and placed the defendants under arrest, he did not have any cause to believe that they were committing or had committed any crime.

Both men were bound over for trial at a preliminary examination. Sometime thereafter, they filed motions to suppress. A lengthy hearing was held and at the close of the evidence, the trial judge found that a seizure of the defendants occurred before the arrest was made. He found that the officer did not have a reasonable or articulable suspicion of criminal activity to justify an investigative stop. He held further that the initial seizure of the defendants, the search of the car, and the seizure of the cocaine was unlawful. The court then suppressed the evidence as to both defendants. The decision was primarily based on a finding that the officer's initial stop of the defendants constituted a seizure of their persons and was unlawful.

The Court of Appeals affirmed on the grounds that the findings of fact of the trial court were substantiated by competent evidence, that the findings of fact and conclusions of law of the trial court adequately explained the decision, and that the trial court did not abuse its discretion.

It will be helpful if we first review some of the rules applicable in stop and identify or stop and frisk situations. Our stop and frisk statute is K.S.A. 22-2402, which reads:

"22-2402. Stopping of suspect. (1) Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.

"(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may search such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, he may take and keep it until the completion of the questioning at which time he shall either return it, if lawfully possessed, or arrest such person." (Emphasis supplied.)

We first discussed this statute in State v. Jackson, 213 Kan. 219, 515 P.2d 1108 (1973). We said:

"[E]ven though 'stop and frisk' has now been codified in 22-2402, police conduct in a 'stop and frisk' situation must be judged under the reasonable searches and seizures clause of the Fourth Amendment to the Constitution of the United States and the judicial interpretations thereof. This point was made by the United States Supreme Court in Sibron v. New York, 392 U.S. 40, 20 L.Ed.2d 917, 88 S.Ct. 1889 [1968], in considering the reasonableness of searches and seizures under The Consolidated Laws of New York Annotated, Code of Criminal Procedure, § 180-a (now § 140-50, effective September 1, 1971). The New York statute was followed in the drafting of 22-2402. (See Judicial Council Comment appended to K.S.A.1972 Supp. 22-2402.)

"The position of the state in this appeal is put in focus by the succinct statement of the issue by the district attorney in his brief:

" 'The issue in this appeal, as was the issue in Terry v. Ohio, [392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968) ], is whether in all the circumstances of the on-the-street encounter, the appellee's personal security was violated by an unreasonable search and seizure....'

"We agree the issue here is the same as that in Terry v. Ohio, supra. However, we do not find controllable similarity in the facts of the two cases. In Terry the arresting officer observed the actions of Terry and codefendant Chilton for a period of more than ten to twelve minutes. Terry and Chilton were each seen strolling by a store and peering in the window five or six times. They would join each other and a third man after these sidewalk strolls. The officer testified that after observing the elaborately casual and oft-repeated reconnaissance of the store window, he suspected the men of 'casing a job, a stick-up.' He considered it his duty as a police officer to investigate further and added that he feared 'they might have a gun.' The officer approached the three, identified himself and asked for their names. When the men 'mumbled' something in response, Terry was seized and a 'pat down' search of the three disclosed guns on Terry and Chilton. The search and seizure was held to be reasonable. In the instant case defendant was stopped when first observed by O'Dell who gave as his only reason 'it was a common practice to check out persons on the roadway this time of night.' No suspicious actions on...