State v. Hardyway, 74415

• Decision Date: 17 April 1998
• Docket Number: No. 74415,74415
• Citation: 264 Kan. 451,958 P.2d 618
• Parties: STATE of Kansas, Appellee, v. Terry W. HARDYWAY, Appellant.
• Court: Kansas Supreme Court

Page 618

958 P.2d 618

264 Kan. 451

STATE of Kansas, Appellee, v. Terry W. HARDYWAY, Appellant.

No. 74415.

Supreme Court of Kansas.

April 17, 1998.

Syllabus by the Court

1. The record in this Fourth Amendment traffic stop search and seizure case is examined, and it is held: The district court did not err in denying defendant's motion to suppress illegal drugs seized from the defendant's person.

2. An appellate court reviews a decision on the suppression of evidence with great deference to the factual findings of the district court. The initial question for review is whether the district court's findings are supported by substantial evidence. If so, the appellate court should not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review.

3. The existence and voluntariness of a consent to search and seizure is a question of fact to be decided in light of the attendant circumstances by the trier of fact. The question of voluntariness will not be overturned on appeal unless clearly erroneous.

4. The quantum of evidence necessary to prove voluntariness is by a preponderance. Debra S. Peterson, assistant district attorney, argued the cause, and Thomas J.

Review of the judgment of the Court of Appeals in an unpublished decision filed February 7, 1997. Appeal from Sedgwick district court; PAUL W. CLARK, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.

Elizabeth Seale Cateforis, Assistant Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellant.

Schultz, Assistant District Attorney, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were on the brief for appellee.

SIX, Justice:

This is a Fourth Amendment traffic stop search and seizure case. Defendant Terry W. Hardyway appeals his conviction on one count of possession of cocaine, K.S.A.1994 Supp. 65-4160(a), and one count of seat belt violation, K.S.A. 8-2503. Before trial, Hardyway filed a motion to suppress the evidence obtained during the search. The motion was denied. On appeal, he argued that the district court erred in denying the motion to suppress. In an unpublished decision, the Court of Appeals reversed and remanded. The State petitioned for review, asserting error in reversal of the district court's finding that Hardyway's consent was voluntary.

We granted the petition for review. Our jurisdiction is under K.S.A. 20-3018. A majority finds the consent to search voluntary, reverses the Court of Appeals, and affirms the district court.

FACTS

The police received complaints that three of four residences in a four-plex in Wichita were involved with gang activity and "mostly narcotic sales." Detective Terry Fettke, Officer Shaun Price, and other officers of the Special Community Action Team (SCAT) conducted surveillance of the residences. SCAT is a unit that focuses on street level gangs and drugs. The purpose of the surveillance was to establish probable cause to obtain a warrant for a search of the residences.

The officers received information from another SCAT unit that a passenger in a brown Cadillac had entered one of the residences under surveillance. The passenger had only been there a brief period of time and returned to the car. Believing the passenger, Hardyway, might have purchased narcotics, the officers located and followed the brown Cadillac. They observed the driver change lanes without signaling, stopped the Cadillac for traffic infractions, and observed seat belt violations by both occupants. Detective Fettke testified that he immediately advised the occupants of the traffic violations. The driver consented to a search of his person. Fettke asked Hardyway if he would mind getting out of the car and going to the rear to speak with him. Hardyway complied. Fettke testified that he did not order Hardyway out of the car. Fettke informed Hardyway of his suspicions that Hardyway had just purchased drugs on Indiana Street. Fettke then asked Hardyway if he would mind being searched for narcotics or weapons. According to Fettke, Hardyway consented to the search, responding that he did not mind being searched. Fettke found crack cocaine in Hardyway's left shirt pocket.

After seizing the cocaine, arresting Hardyway, and informing him of his Miranda rights, Fettke questioned Hardyway. Hardyway admitted going to the residence and purchasing the cocaine.

The Motion to Suppress

Hardyway's motion to suppress addressed the seized cocaine and his statements to the detective. Fettke testified about the surveillance and the traffic stop. Fettke said that he followed Hardyway's car because he thought the occupants may have been involved in a drug deal. Fettke pointed out that his suspicion was based upon hours of surveillance, "having direct knowledge of the persons involved in the narcotics distribution from 429 Indiana and realizing that the distribution was going on at that location before that vehicle [sic ] even pulling up."

The district court ruled that Hardyway's statements to Fettke were inadmissible but admitted the cocaine and the lab reports. The district judge said:

"It seems to me the starting place you both agree is the Fourth Amendment to the United States Constitution and it provides, in essence, that the people shall be secure in their persons and effects from unreasonable searches and no warrant shall issue except for probable cause for them both, particularly describing places to be searched and things to be seized.

"The law has evolved, any search done without a warrant is unreasonable. The burden falls upon the State to prove that it fits within an exception to the warrant requirement of the Fourth Amendment.

"[The] State asserts here there is a voluntarily [sic ] consent; that is, indeed, one of the exceptions, then.

"To analyze it, we must first look, does the Fourth Amendment apply to a passenger in an automobile on a public street?

"Cases have evolved, there again, as I understand their evolution, that a passenger has an expectation of privacy in an automobile being driven on a street by another.

"So then we have to look at the stop, look at the facts here to find what were the purposes of the background stop. The automobile in which the defendant was riding was being followed by the police after it had made a short stop at a place that the police were surveilling, suspecting that it might be, in the words of Officer Price, a drug house. The purpose in following the subject automobile was to get its tag number to further the investigation being done in an effort to make out a complete application to be presented to secure a search warrant for that premise that the police suspected to be a drug house.

"In that pursuit, for the purpose of finding out what this vehicle's tag number was and its description, violations of law were observed, commonly called traffic infractions, violations of traffic ordinances of the City [of] Wichita.

"A stop was then made. The passenger, I would take it, was sitting there while the driver was asked to step from the automobile and then what Mr. Phillips [defense counsel] referred to as a Terry-type, limited intrusion into his person, made to check to see if he had weapons.

"There's no question raised there, that assumption adds to the facts and nothing more, and then the police turned to the passenger. That's the point Mr. Phillips raises the stop was complete. They had the tag number. They had their driver and the passenger was asked by Detective Fettke, the passenger being the defendant, "Would you mind stepping out of the car?" It was a request. The defendant voluntarily complied and then further request made by Detective Fettke of the defendant, did the defendant mind if, "I searched your person for drugs or weapons." Yes was the answer. "You may search; no, I don't mind." The search was done; contraband found. Thus this prosecution.

"The search was off of a voluntary consent, so were the police properly there at the place they searched Mr. Hardyway at the time they searched Mr. Hardyway, is what the issue really evolves down to.

"If the purpose of their stop was over, 10th Circuit has ruled in that case and followed their own ruling right along, that once the purpose of the traffic stop is over, it is over.

"It seems to me in every case they have done that, the traffic stop is a pure traffic stop, speeding or some other traffic infraction. Once the matter was handled, then the officer asked, "Do you mind if I search your car?" On those cases, the 10th Circuit has said it is not proper, it violates the Fourth Amendment to protect the person from the government.

"In this case, the investigation done prior to this stop must be considered, applied and must be used in my mind to supply the reasonable suspicion. That element gets us into a reasonable suspicion with exigent circumstances or gets into that with the information the police had concerning the known drug house, in the officer's words.

"Therefore, the search, in my mind, is proper, given the exigent circumstances. The driver was going to be given a citation and let go. The officers knew that this automobile had just made a very short stop at a place where drugs were being sold, purchased, possessed in a residence, had left that residence which was being surveilled, again."

The Court of Appeals Opinion

In reversing the district court, the Court of Appeals said:

"There is no question that the defendant was lawfully detained during the questioning and search of the driver and that he could have been detained for the purpose of investigating the seat belt violation. Thus, up to the point that the defendant got out of the car there was no Fourth Amendment violation. See U.S. v. Hill, 60 F.3d 672, 682 (10th Cir.1995)."

The Court of Appeals found that Hardyway's...