State v. Jackson, 47081

• Decision Date: 03 November 1973
• Docket Number: No. 47081,47081
• Parties: STATE of Kansas, Appellant, v. Paul G. JACKSON, Appellee.
• Court: Kansas Supreme Court

Page 1108

515 P.2d 1108

213 Kan. 219

STATE of Kansas, Appellant, v. Paul G. JACKSON, Appellee.

No. 47081.

Supreme Court of Kansas.

Nov. 3, 1973.

Syllabus by the Court

1. Under the provisions of subsection (3) of K.S.A.1972 Supp. 22-3216 the trial court may in its discretion reentertain a motion to suppress evidence made and ruled on prior to trial if at trial new or additional evidence is produced that is material to the issue or substantially affects the credibility of the evidence adduced at the pretrial hearing on the motion.

2. The 'stop' of a person in a public place without making an arrest, authorized by K.S.A.1972 Supp. 22-2402(1), requires that a law enforcement officer must have prior knowledge of facts or observe conduct of a person which cause the officer to reasonably suspect that such person is committing, has committed, or is about to commit a crime.

3. To justify the search of a person for weapons authorized by subsection (2) of K.S.A.1972 Supp. 22-2402, a law enforcement officer must have prior knowledge of facts or observe conduct of the person or receive responses to the limited interrogation authorized by subsection (1) of the statute that would cause the officer to reasonably suspect that his personal safety is in danger.

Gary H. Jarchow, Asst. Dist. Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief, for appellant.

Wendell E. Godwin, Wichita, court-appointed, argued the cause and was on the brief, for appellee.

KAUL, Justice:

This is an appeal by the state on a reserved question pursuant to the provisions of K.S.A.1972 Supp. 22-3602.

The question arises from a ruling of the trial court suppressing evidence consisting of a number of automobile keys found in defendant's pocket by the arresting officer. The ruling appealed from was made after the case had been submitted to the jury and after a second request by the jury for the rereading of the testimony of two of the state's witnesses. During the second read back of the testimony the court interrupted the proceedings, made a statement to the jury that its difficulty in reaching a decision was because of the uncertainty of the evidence and further 'that the arrest was probably invalid or is invalid.' The trial court then suppressed the automobile keys and subsequently sustained defendant's motion for acquittal.

The circumstances surrounding the apprehension of defendant are described by Bob O'Dell, a Cowley County deputy sheriff, who was patrolling the area around Rock in the early morning of January 24, 1971. At about 2:50 a.m., O'Dell observed the defendant, Paul G. Jackson, walking northbound on US Highway 77 a quarter of a mile north of Rock. O'Dell testified he stopped defendant soon after he first observed him. O'Dell's testimony describing the events that followed is reproduced in narrative form in the record. Omitting transcript references, his testimony on direct examination appears as follows:

'. . . He proceeded to 'check the defendant out,' and asked him where he was going and where he came from as well as whether he was employed. The defendant advised him he was going to 'Oklahoma City,' had come from 'Wichita, Kansas,' did not have employment and lived in Oklahoma City.

'Deputy Sheriff O'Dell further testified that he 'frisked', the defendant and found a large quantity of 'metal' in his left pocket before taking the defendant to Winfield and booking him for vagrancy. After inquiry, the defendant told him 'it was car keys.' He had the defendant take them out and asked where he got them. The defendant responded 'on the sidewalk' and 'at Third and Hydraulic.' The deputy stated that there were about fifteen sets of keys with different car descriptions on the tags and also a few singles not on tags. He took them into his possession.'

The portion of O'Dell's testimony on cross-examination, which is reproduced in the record, appears as follows:

'At the time he first saw the defendant walking along the highway, he stopped the defendant and arrested him for vagrancy, because he had made the determination that defendant ws 'indigent,' which Officer O'Dell defined as being 'without visible means of support and no job, no income.' At the time Officer O'Dell arrested the defendant he told the defendant that he was charging him with vagrancy, because he was unemployed and 'without gainful employment.' Officer O'Dell stated that he did not ask the defendant if he had been working and stated further than he did not know how recently the defendant had been working nor did he have any knowledge of any other offenses of which the defendant was suspected. The defendant was not suspected of the crime for which he was tried until after he was booked for vagrancy into the police station in Winfield, and the defendant was not charged with any other crimes by the Winfield police.'

O'Dell's testimony, as set out above, is the only evidence pertaining to the arrest and search of defendant and seizure of the keys.

It should be noted that the time of arrest, with reference to the search and interrogation of defendant, is not fixed to a certainty by O'Dell's testimony.

The keys were later identified by other witnesses as having been taken during the previous evening in a burglary in the office of the McCall Motor Company in Wichita. One of the keys found on defendant fitted the ignition of a 1965 Chevrolet Convertible which was found by O'Dell and undersheriff Lezzle in a search of the area after defendant's arrest. The 1965 Chevrolet was found on a county road a quarter of a mile east of US Highway 77 and about a half-mile from where defendant was first observed. O'Dell had not been informed of the McCall burglary at the time he stopped defendant.

After his arrest, defendant was taken to Wichita and charged with the burglary of McCall's and theft of the 1965 Chevrolet.

Prior to trial several motions pertaining to the keys, including one to suppress, were filed. Apparently, those motions were heard by Judge Kline, administrative judge for the Sedgwick District Court. The motion to suppress was overruled and a motion to permit defendant to inspect the keys was sustained. Proceedings pertaining to the hearing on the pretrial motion to suppress are not reproduced in the record other than as shown by the journal entry of the court's ruling.

The case was assigned to Judge Kandt of division No. 1 for trial. It appears that once during the course of the trial and again after the defense had rested the motion to suppress was reasserted and overruled by Judge Kandt. An excerpt from the trial transcript, which is reproduced in the record, indicates that the trial was interrupted during the state's case when the trial court, apparently in the absence of the jury, interrogated O'Dell concerning his actions and determined that the original ruling of the administrative judge on suppression of the keys should be left undisturbed.

On appeal the state claims error in the trial court's suppression of the keys on two grounds. First, it is contended the keys were seized in a reasonable search regardless of the validity or invalidity of the arrest. Second, the state claims it was error to suppress the keys at trial after the administrative judge had overruled a pretrial motion to suppress.

Concerning the reasonableness of the search, the state rests its argument on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; State v. Hazelwood, 209 Kan. 649, 498 P.2d 607; and K.S.A.1972 Supp. 22-2402 of the new Kansas Code of Criminal Procedure. At this point, we should pause to point out that 22-2402, commonly known as the 'stop and frisk' statute authorizes the stopping and questioning of a person in a public place by a law enforcement officer who reasonably suspects such person is committing, has committed, or is about to commit a crime. The act also authorizes a limited search of the person for weapons if the officer reasonably suspects that his personal safety requires it. The limited search authorized under 22-2402 is to be distinguished from a search incident to a lawful arrest provided for in K.S.A.1972 Supp. 22-2501. Due to the unsettled state of the record in the instant case, we are unable to say with certainty which statute applies. However since the state claims the 'frisk' described by O'Dell is justifiable under 22-2402, we shall consider the case in the context of a 'stop and frisk' situation followed by an arrest.

The state recognizes, and correctly so, that even 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, 88 S.Ct. 1889, 20 L.Ed.2d 917, 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), McKinney's Consol. Laws, c. 11-A. 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, supra, 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...