State v. Greever

• Decision Date: 16 May 2008
• Docket Number: No. 95,303.,95,303.
• Citation: 183 P.3d 788
• Parties: STATE of Kansas, Appellee, v. Shanon S. GREEVER, Appellant.
• Court: Kansas Supreme Court

183 P.3d 788

STATE of Kansas, Appellee, v. Shanon S. GREEVER, Appellant.

No. 95,303.

Supreme Court of Kansas.

May 16, 2008.

Jennifer E. Conkling, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Thomas R. Stanton, deputy district attorney, argued the cause, and Keith E. Schroeder, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

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

After the denial of his pretrial motion to suppress evidence, Shanon S. Greever was convicted of possession of marijuana and possession of marijuana without drug tax stamps affixed. The Court of Appeals decided that the evidence in question should have been suppressed because the initial traffic stop was illegal, rendering the seizure a violation of the defendant's rights under the Fourth Amendment to the United States Constitution, and therefore reversed Greever's convictions. State v. Greever, 37 Kan.App.2d 145, 150 P.3d 918 (2007). We granted the State's petition for review, reverse the decision of the Court of Appeals, and affirm the district court as to the issues before us.

Facts

On March 17, 2004, at about 2:30 p.m., Reno County Deputy Sheriff Justin Maxfield was on duty and stopped at a stop sign at the intersection of Scott Boulevard and U.S. Highway 50 in Reno County. Because of bridge construction, the Scott Boulevard-U.S. 50 intersection formed a "T," with southbound Scott Boulevard terminating at U.S. Highway 50.

Deputy Maxfield observed in his rear view mirror a white car approaching him from the rear. The driver, "a white male occupant with long hair and a hat," was talking on the cell phone as he neared the intersection. The driver displayed a turn signal only after his vehicle came to a complete stop behind Deputy Maxfield's police cruiser.

Deputy Maxfield turned east through the intersection and pulled over to the side of the road but did not activate his emergency lights or siren. He then waited for the white car and a semi-truck and trailer to pass, after which he reentered the roadway with the intent to stop the white car for failure to properly use its turn signal. However, the deputy lost sight of the car around the semi-truck, and soon he noticed that the white car was no longer in front of the truck. When he realized this, Maxfield turned his vehicle around and located the white car parked on Bonebrake Street.

Maxfield pulled up behind the white car, exited his patrol car, and approached the driver's side of the vehicle. When the driver, Shanon Greever, noticed the officer had arrived at his window, he acknowledged that he had not properly used his turn signal, explaining that he was distracted because he was talking on his cellular phone as he approached the intersection.

Maxfield smelled the odor of marijuana wafting from the passenger compartment of Greever's vehicle. Likewise, when Greever was searching for his insurance and registration documentation, Maxfield observed an item he thought was drug paraphernalia.

Upon seeing and smelling what he believed to be drug-related activity, the deputy asked Greever to exit his vehicle and advised Greever of his Miranda rights from memory. Maxfield then asked Greever if he would be willing to answer some questions; Greever responded that his answer would depend on the questions asked.

Maxfield asked Greever whether he had marijuana in the car or on his person; Greever responded that he had no marijuana. Greever then asked the deputy if he could call his lawyer before Maxfield conducted a pat-down search, and Maxfield answered that he could not call his lawyer "right at that moment."

Following this conversation, Maxfield conducted a pat-down search of Greever and felt a large, bulky item in Greever's pocket. Maxfield asked Greever what the item was, and Greever told him it was "weed"—a term the deputy recognized as a slang word describing marijuana. Maxfield removed the marijuana from Greever's pocket and asked if he had any other marijuana on his person. Greever stated that he had a "quarter"—a 1/4 ounce of marijuana—in another pocket. Although Maxfield was unable to find that second amount of marijuana, he later determined it was really a portion of the bulge already seized. Greever told the deputy that he was holding the marijuana for some friends.

In addition to the marijuana seized from Greever's pocket, Maxfield observed rolling papers and marijuana roaches in Greever's car.

Following this encounter, Greever was arrested and taken to the Reno County Detention Center. On the way to the center, Greever engaged Maxfield in a lengthy discussion regarding the issue of whether marijuana should be legalized. In particular, Greever informed Maxfield that marijuana should be legalized and that he intended to tell the district court that it "should either deport him, kill him, or accept him as he was because he wasn't going to stop using marijuana."

District Court Proceedings

A complaint was filed in Reno County District Court charging Greever with possession of marijuana with the intent to sell and possession of marijuana without tax stamps affixed.

Prior to trial, Greever filed a motion to suppress his statements and the evidence resulting from the traffic stop. During a hearing on the motion, Deputy Maxfield testified to the events as described above. Greever also testified, claiming that he turned his turn signal on prior to approaching the intersection. The defendant denied having admitted to Maxfield his failure to use a turn signal during the initial stop. However, the defendant stated that he stopped his car voluntarily to continue his cell phone conversation and that he agreed to exit the car to speak with the deputy because "[he didn't] see any reason why [he] shouldn't." The defendant stated on cross-examination that he did not notice the lights on the deputy's patrol car until after the deputy tapped on his driver-side window.

While the district court questioned whether failure to use a turn signal would be a traffic violation if the vehicle could not proceed straight ahead, the court ultimately found that this question was moot because Greever had not been seized by the deputy. The court concluded that the odor of marijuana provided a reasonable suspicion to conduct a pat-down search. The court denied Greever's motion to suppress the evidence seized from his person and car. However, the court suppressed Greever's statements to Maxfield since Maxfield denied Greever's request to speak with an attorney.

Court of Appeals

Greever appealed, claiming that the district court erred in denying his motion to suppress the marijuana and other drug paraphernalia. He argued he was seized within the meaning of the Fourth Amendment and that K.S.A. 8-1548, which describes the proper use of a turn signal under Kansas law, could not provide reasonable suspicion for the stop. He also claimed that K.S.A. 8-1548(b) is void for vagueness and that the evidence should be suppressed because the pat-down search exceeded the scope of a Terry stop since Deputy Maxfield had no reason to fear for the officer's safety. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

A divided panel of the Court of Appeals reversed the defendant's conviction, holding that K.S.A. 8-1548(b) did not provide Deputy Maxfield a reasonable suspicion to conduct a traffic stop in this case. 37 Kan.App.2d at 152, 150 P.3d 918. The majority concluded that a seizure occurred within the meaning of the Fourth Amendment "when Greever observed the emergency lights and submitted to Maxfield's show of authority by not fleeing." 37 Kan.App.2d at 149, 150 P.3d 918.

The majority opinion then turned to the question of whether Deputy Maxfield had reasonable suspicion to conduct the initial traffic stop. Examining the provisions of K.S.A. 8-1548, the majority found:

"The obvious purpose of K.S.A. 8-1548 in requiring vehicle signals is to provide adequate warning to other motorists and pedestrians of a vehicle's imminent movement from one lane to another or from one direction to another in order to give them an opportunity to react accordingly. The adequacy of a warning is a function of the manner in which it is given and the time it provides others to perceive the warning and react to it. Obviously, our legislature chose a warning that can provide minimal advance notice to others on or about to enter the roadway since, for example, at a highway speed of 70 miles per hour when a motorist is traveling about 105 feet per second, a warning must be given for less than one second before a lane change. Given a normal driver's reaction time of 3/4 of a second, this leaves little time, indeed, for others using the roadway to respond. In the case now before us, it is clear that Greever used his turn signal to express his intention to turn, and his turn signal functioned properly. Further, from the testimony of Deputy Maxfield, it is also clear that Greever's turn signal provided probably 5 to 10 times more warning to other motorists than the required notice at highway speeds." 37 Kan.App.2d at 150, 150 P.3d 918.

Ultimately, the majority held that under K.S.A. 8-1548, "one cannot be required to signal a turn before forming the intention to do so." 37 Kan.App.2d at 151, 150 P.3d 918. The court further concluded that "[a]n officer is able to infer a motorist's intentions from the totality of the circumstances." 37 Kan. App.2d at 151, 150 P.3d 918. Finding that "there is no evidence from which Maxfield could infer that Greever intended to turn before coming to a stop behind him," the majority found that "[t]o sanction Maxfield's use of K.S.A. 8-1548 to justify Maxfield's seizure of Greever would not constitute a reasonable and sensible interpretation of the legislature's intent in enacting K.S.A. 8-1548." 37 Kan.App.2d at 151-52, 150 P.3d 918.

The majority also found that this court's decision in State...