State v. Hamblin

• Decision Date: 23 October 2020
• Docket Number: No. 121,087,121,087
• Citation: 473 P.3d 962 (Table)
• Parties: STATE of Kansas, Appellee, v. Regan Danielle HAMBLIN, Appellant.
• Court: Kansas Court of Appeals

473 P.3d 962 (Table)

STATE of Kansas, Appellee,

v.Regan Danielle HAMBLIN, Appellant.

No. 121,087

Court of Appeals of Kansas.

Opinion filed October 23, 2020

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Thomas C. Penland, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Hill and Atcheson, JJ.

MEMORANDUM OPINION

Per Curiam:

Regan Danielle Hamblin appeals her convictions for possession of methamphetamine and possession of drug paraphernalia by challenging the denial of her motion to suppress evidence seized during a traffic stop in which she was a passenger. Officers conducted a traffic stop after observing Hamblin was not wearing a seatbelt. Neither occupant had a driver's license, and the vehicle had no valid registration, so the officers arrested the driver and asked Hamblin to exit so officers could tow the car. As Hamblin gathered her belongings, she quickly moved a small red zipper bag that she was sitting on into her purse, prompting an officer to ask her to open the bag. Inside the bag, the officer observed small baggies of methamphetamine and a glass pipe inside, so he arrested Hamblin. She later moved to suppress the evidence seized as a result of the stop, challenging the lawfulness of the stop and the search. The trial court found that the officer's testimony about an observed seatbelt violation was credible and that there was probable cause to search the bag for contraband. After reviewing the totality of the circumstances, we disagree that there was probable cause to search the bag and reverse her convictions and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY

On an evening in March 2017, Officer Mark Palmerin was on patrol in Wyandotte County, Kansas, with his partner Chad Williams. As they were travelling eastbound, Palmerin allegedly observed Hamblin, a passenger in a vehicle travelling westbound, not wearing a seatbelt. They conducted a traffic stop of the vehicle. During the stop, Palmerin spoke with Hamblin while his partner contacted the driver. Palmerin noticed that Hamblin was now wearing a seatbelt, and that she appeared nervous because she was looking around and her hands were shaking.

After discovering that the driver had no license, Officer Williams took the driver into custody. The officers also learned that the vehicle had no valid registration. Palmerin asked Hamblin to exit the vehicle so that officers could order it towed, since she also had no driver's license. As Hamblin prepared to exit the vehicle, Palmerin saw her raise up slightly and move a small red zipper bag that she was sitting on into her purse. Palmerin asked her to open the bag and he saw a glass pipe and what appeared to be two small baggies of methamphetamine inside, so he placed her under arrest. The State later formally charged Hamblin with one count each of possession of methamphetamine and possession of drug paraphernalia.

Hamblin pleaded not guilty and then moved to suppress the evidence seized during the traffic stop, challenging whether the officers had (1) reasonable suspicion to conduct or extend the traffic stop; and (2) probable cause to search the vehicle after observing the red zipper bag. Hamblin asserted that reasonable suspicion for the stop was lacking because at the preliminary hearing Palmerin could not articulate his location when he observed the violation. She also contended the video of the traffic stop showed she was wearing a seatbelt during the traffic stop, contradicting the officer's basis for conducting the stop. She then argued that merely observing a red zipper bag without other indicia of drug possession could not provide the officers with probable cause to search the vehicle.

The trial court held an evidentiary hearing on the suppression motion. The only testifying witness was Palmerin. He testified as outlined above. He also stated that he had been a police officer with the Kansas City, Kansas, police department since September 2010. He was part of a special "nighttime community policing" unit that conducted traffic stops and "got a lot of narcotics off the streets." The purpose of the unit was to conduct car stops in an effort to locate violent criminals. Through his training and experience, Palmerin had encountered individuals storing their drugs "in their pockets, Crown Royal bags, small zip bags, sunglass case[s], [and] digital camera cases."

The trial court denied the motion in an oral ruling from the bench:

"The Court appreciates the defense motion and find it is a legitimate one, however, I am denying it for the following reasons: the seatbelt, we have three choices, either the officer—either defendant had her seatbelt on and made a good faith mistake and he just didn't see what he thought he saw or he can be correct, that the defendant put the seatbelt on between her first sighting and the officers behind her or coming across and between the stop would have been plenty of time to put that on, or the third option is that the police officer is just lying.

"Now, it very well may be that the officers were looking for a reason to pull this car over, maybe it fit a profile, I don't know but, however, that's not illegal as long as you have reasonable suspicion or viewing of a crime or traffic infraction to pull somebody over. Again, the officer came up here and testified that he's an eight-year veteran, the Court sees no reason to accuse him of lying actively. He very well may have been wrong but, again, I find that most likely the defendant probably put the seatbelt on between the time of her seeing the officers and the time of the stop.

....

"Getting to the factors for probable cause, we have the officers, what the officer testified to as excessive nervousness. Everybody is nervous when pulled over by the police. In fact the rare time I may get pulled over for a traffic infraction, you get nervous just naturally, but I'm not visibly shaking and there's no reason for someone to virtually shake, in my opinion. If they're not wearing a seatbelt or doing otherwise, nothing wrong. That's suspicious, no doubt.

"She testified that she was glancing all around trying to figure out her surroundings, that's suspicious. She quickly transferred a container from underneath her [rear end] to her purse. And he didn't say she did it slowly or methodically. I find that to be considered furtive movement as well, also, at least in the preliminary hearing transcript, he seemed to try to do it. He seemed to see her do it hopefully without him seeing it and to, quote, he said, trying to conceal it from me seeing it. And she immediately tried to grab it and tried to shove it in her purse. That implies a quick movement hoping the officer wouldn't see.

"I'm sure every once in [a while]we might sit on something we didn't mean to or didn't know it was there, but it is still suspicious generally to be sitting on a container like that, especially for an adult who can feel what they're sitting on and notice something like that and see it before they sit on it.

"And the officer concluded that the container was likely to be contraband based on his significant training and experience, and also I believe it's clear the defendant was likely told that the car was going to be towed. Anyone who knows anything about towing cars, the people have to get out before it gets towed. The car is searched for tow and so there's no dispute later about what was in it or if anything got stolen. So that container with the drugs in it or suspected drugs or paraphernalia would have been discovered by the police. So it's not an inevitable discovery issue so to speak but it is something that I believe the defendant most likely knew that if she didn't take that and put it into her purse, it would be sitting there in the car and the police would search that eventually and find it had the contraband in it.

"So, for all these foregoing reasons, the Court respectfully denies the defendant's motion to suppress the search in this matter."

Hamblin later agreed to a bench trial. The only witness testifying at the trial was Palmerin. Hamblin raised a continuing objecting to Palmerin's testimony about the events after the beginning of the car stop, based on the denied motion to suppress. The court overruled the objection. Ultimately, the court found Hamblin guilty of both charges.

The court ultimately sentenced her to a mitigated sentence of 10 months' imprisonment but released her on a 12-month probation term.

Hamblin timely appealed.

ANALYSIS

Hamblin argues the trial court erred in denying her motion to suppress. The only questions she raises before this court are whether the trial court correctly concluded that Palmerin had (1) reasonable suspicion of criminal activity to conduct the traffic stop; and (2) probable cause to believe the bag contained evidence of criminal activity.

Standard of review

When reviewing a district court's decision on a motion to suppress, this court utilizes a bifurcated standard. First, this court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, this court does not reweigh the evidence or assess the credibility of witnesses. Second, this court will then review the district court's ultimate legal conclusions de novo. State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018). When faced with a motion to suppress evidence, the State bears the burden to prove that a search and seizure was lawful. State v. Ton , 308 Kan. 564, 568, 422 P.3d 678 (2018).

The trial court did not err in finding there was reasonable suspicion for the traffic stop.

Hamblin contends Palmerin's inability to articulate at what point he saw she was not wearing a seatbelt, combined with the fact that she was wearing the seatbelt at the start of the traffic stop, shows that there was not reasonable...