State v. Gilliland
| Decision Date | 14 May 2021 |
| Docket Number | No. 122,479,122,479 |
| Court | Kansas Court of Appeals |
| Parties | STATE of Kansas, Appellee, v. Randall Lee GILLILAND, Appellant. |
Allen A. Ternent, of Ternent Law Office, of Atchison, for appellant.
Sherri L. Becker, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Atcheson, P.J., Gardner and Warner, JJ.
Randall Lee Gilliland appeals his convictions of possession of methamphetamine, possession of paraphernalia, and failure to use a turn signal. He claims that the officer lacked probable cause to arrest him, so the district court erred by denying his motion to suppress evidence found during his search incident to arrest. Gilliland also claims that the district court erred by requiring drug tests as a condition of his pretrial bond. Finding no error, we affirm in part and dismiss in part.
In December 2018, two Atchison County Sheriff's Department officers saw Gilliland in the driver's seat of a parked vehicle. Recognizing Gilliland, the officers requested information on his driving status with the Joint Communication Dispatch Center for Atchison County. That center is a separate entity from the Atchison County Sheriff's Department and the City of Atchison Police Department. Officers gave dispatch Gilliland's name and a dispatcher responded that his license was expired in 2011 and revoked. The officers then stopped where they could see Gilliland, watched him drive away, and noticed that Gilliland failed to use his turn signal when he turned. The officers then stopped Gilliland for that traffic violation.
During the traffic stop, Gilliland told the officers that his driver's license was not revoked but was just restricted, and that the Kansas Division of Vehicles required him to use an ignition interlock device when driving. He gave the officers a DC-36 form showing he was restricted from driving without an interlock device from July 1, 2015, to July 3, 2017, and he showed them his ignition interlock device. An officer then took Gilliland's license and asked dispatch to check his status again, giving dispatch Gilliland's license number as well as his name. Again, dispatch informed the officer that Gilliland's license was revoked and also expired in 2011.
Officers then ordered Gilliland out of his vehicle and arrested him. As officers searched Gilliland incident to his arrest, they found a small bag of methamphetamine, a pipe, and a straw with methamphetamine residue.
Officers later discovered that Gilliland's license at the time of his arrest was restricted rather than revoked. Only Gilliland's commercial driver's license (CDL) had been revoked.
After being charged, Gilliland moved to suppress the evidence officers found during their search. At the suppression hearing, the dispatcher admitted that she had made a mistake and that Gilliland's Class C driver's license was valid with restrictions on the date officers arrested him. She testified that errors do occur in the Kansas Division of Vehicles driver's license status system, but they are not common.
Gilliland argued that it was unreasonable for officers not to investigate further after he gave them good evidence contradicting the dispatcher's report that his license was revoked. Gilliland argued that it was unreasonable for officers to rely on the dispatcher's mistaken assertion when Gilliland had given them paperwork showing he could drive with a restricted license. He faulted officers for not telling the dispatcher about the form he had showed them stating his license was restricted and for not asking the dispatcher about the ignition interlock restriction. He also argued that the errors in the driver's license system could be evidence of systemic negligence.
The district court denied Gilliland's motion to suppress. It found that the dispatcher had made a mistake of fact, that the officer's reliance on the dispatcher's report was objectively reasonable, and that the good-faith exception to the exclusionary rule thus applied.
The parties then submitted the case for trial by the court based on stipulated facts. After the bench trial, the district court found Gilliland guilty of possession of methamphetamine, possession of drug paraphernalia, and failure to use a turn signal. The district court denied Gilliland's motion for a dispositional departure and sentenced him to 20 months' imprisonment.
Gilliland timely appeals. First, Gilliland argues that the officers made an improper pretextual stop and lacked probable cause to arrest him, so the district court should have suppressed the evidence found when officers illegally searched him. Secondly, Gilliland contends that the district court erred in imposing certain supervision conditions on his pretrial bond.
We briefly address Gilliland's equally brief argument that the officers illegally stopped him based only on their belief that he possessed drugs. Gilliland argues that the officers' failure to ask dispatch about his paperwork and ignition interlock device shows the pretextual nature of their initial stop.
Yet Gilliland concedes that pretextual stops are legal when a legitimate reason for the stop exists. Our law has well established that proposition: "A traffic violation provides an objectively valid reason to effectuate a traffic stop, even if the stop is pretextual." State v. Anderson , 281 Kan. 896, 901, 136 P.3d 406 (2006) ; see Whren v. United States , 517 U.S. 806, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).
Officers testified that they stopped Gilliland because they saw him fail to use his turn signal when turning left in a four-way intersection, and because they believed his license was expired and revoked. The district court credited the officers' testimony. Failure to use a turn signal violates K.S.A. 8-1548. And observation of a traffic violation provides an officer with reasonable suspicion to conduct a traffic stop. See State v. Kraemer , 52 Kan. App. 2d 686, 692, 371 P.3d 954 (2016). So the officers' traffic stop here is not rendered invalid even if it were a mere pretext for a drug search. State v. Jones , 300 Kan. 630, 638, 333 P.3d 886 (2014) ().
We next address Gilliland's argument that officers lacked probable cause to arrest him, so the district court should have suppressed the evidence found when they illegally searched him.
Generally, to preserve a suppression of evidence argument for appeal under K.S.A. 60-404, the moving party must timely object at trial to admission of the evidence, specifying the ground for the objection. State v. Alford , 257 Kan. 830, 840, 896 P.2d 1059 (1995) (citing State v. Toney , 253 Kan. 651, 656, 862 P.2d 350 [1993] ). But Kansas courts have allowed review of the issue on appeal even without a contemporaneous objection at times. See State v. Kelly , 295 Kan. 587, 594, 285 P.3d 1026 (2012). One such circumstance is when a defendant is tried solely on stipulated facts. In that situation, a defendant who fails to object to the admission of evidence at trial may still satisfy the requirements of K.S.A. 60-404 by filing a pretrial motion to suppress evidence. 295 Kan. at 594, 285 P.3d 1026.
This exception applies here. The district court tried and convicted Gilliland based on stipulated facts. Gilliland did not object to the admission of the drugs or drug paraphernalia at trial, but he had filed a pretrial motion to suppress the evidence. And his trial stipulation shows that he intended to preserve this issue by filing the motion to suppress, even if he did not object at trial:
"[T]he Parties request that the Court accept the instant matter for determination on the basis of designated record and accompanying stipulations of fact, that said record and stipulations be incorporated into and made a part of the trial record, and that Defendant's right to appeal any adverse ruling on his Motion to Suppress heard on August 19, 2019 be deemed preserved."
Gilliland has sufficiently preserved this issue for our review.
When, as here, the material facts to a district court's decision on a motion to suppress are not in dispute, the issue whether to suppress is a question of law over which this court has unlimited review. State v. Martinez , 296 Kan. 482, 485, 293 P.3d 718 (2013).
The State bears the burden of proving the lawfulness of a warrantless seizure. State v. Morlock , 289 Kan. 980, 985, 218 P.3d 801 (2009). Generally, a warrantless search by a police officer is per se unreasonable under the Fourth Amendment. State v. Doelz , 309 Kan. 133, 140, 432 P.3d 669 (2019). But exceptions to that rule exist, and one such exception is a search incident to lawful arrest. 309 Kan. at 140, 432 P.3d 669. The district court applied that exception here. Gilliland claims that was erroneous because his arrest lacked probable cause so was illegal and the search incident to lawful arrest exception cannot apply.
An officer must have probable cause to make an arrest. See Bailey v. United States , 568 U.S. 186, 192, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (2013). Probable cause to arrest "exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." State v. Abbott , 277 Kan. 161, Syl. ¶ 2, 83 P.3d 794 (2004). Law enforcement officers make probable cause determinations in the field by considering the totality of the circumstances, "including all of the information in the officer's possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt." 277 Kan. 161, Syl. ¶ 3, ...
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State v. Posa
...warrant before executing arrest). So, officers complied with, rather than flouted, the court order here.These facts are more like those in Gilliland and Soto. See State v. Gilliland , 60 Kan. App. 2d 161, 490 P.3d 66, rev. denied 314 Kan. –––– (2021); Soto , 2018 WL 5091886. In Soto , offic......