State v. Johnson
| Decision Date | 02 September 2011 |
| Docket Number | No. 98,812.,98,812. |
| Citation | 293 Kan. 1,259 P.3d 719 |
| Parties | STATE of Kansas, Appellee,v.Robert JOHNSON, Appellant. |
| Court | Kansas Supreme Court |
1. Whether reasonable suspicion exists by a law enforcement officer that a person is involved in criminal activity is a question of law. An appellate court applies a mixed question standard of review: whether substantial competent evidence supports the district court findings, while the legal conclusion is reviewed de novo.
2. The State bears the burden to demonstrate that a challenged search or seizure was lawful.
3. An appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.
4. In reviewing an officer's possession of reasonable suspicion of criminal activity, an appellate court determines whether the totality of the circumstances justifies the detention. The court makes its determination with deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances, remembering that reasonable suspicion represents a minimum level of objective justification which is considerably less than proof of wrongdoing by a preponderance of the evidence. However, the officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.
Ryan Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.David H. Matthews, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
Robert L. Johnson was charged with one felony count of possession of cocaine in violation of K.S.A. 65–4160(a), one misdemeanor count of possession of marijuana in violation of K.S.A. 65–4162(a), and one felony count of possession of a controlled substance without a tax stamp affixed in violation of K.S.A. 79–5204 and K.S.A. 79–5208. A jury returned a guilty verdict on the possession counts and acquitted on the tax stamp charge. The district court sentenced Johnson to 18 months' probation, with underlying concurrent sentences of 15 months' imprisonment for the cocaine possession and 12 months in county jail for the marijuana conviction. Johnson appealed his convictions to the Court of Appeals, which affirmed the district court. We granted Johnson's petition for review under K.S.A. 20–3018(b), obtaining jurisdiction under K.S.A. 60–2101(b).
Johnson contends that Federal Bureau of Investigation (FBI) task-force officers lacked reasonable suspicion to detain him. We agree. Accordingly, we reverse the district court and the Court of Appeals and vacate the defendant's sentences.
Officers assigned to an FBI violent crimes task force were looking to execute an arrest warrant for Shane Thompson. In order to find Thompson, the task-force officers relied on a “face sheet,” which is a document issued by the Department of Corrections that contains a picture of Thompson as well as his physical description. According to the face sheet, Thompson was a black male with short hair and facial hair, who weighed about 160 pounds and was 5'2? tall. None of the task-force officers was familiar with Thompson.
The task force received a tip that Thompson was staying with his mother in Kansas City, Kansas. The task-force officers drove to the location. According to their testimony, the task-force members spoke with Thompson's mother, who informed them that Thompson was not at the residence. The task-force officers then left. An officer testified that a resident of the house stated that Thompson slept there. The State presented no evidence that Thompson slept there the previous night, nor was there any evidence that he recently left the house.
Approximately 5 blocks away from Thompson's mother's residence, Robert Johnson and Eugene Brown were walking on a sidewalk. Johnson is approximately 5'11? tall, and Brown stands around 5'9?. Both men are black and have facial hair. The officers, in multiple unmarked squad cars with emergency lights activated, exited their cars, drew their weapons, and approached Johnson and Brown and requested identification. Officer Michael Blegen of the Missouri Department of Corrections and a member of the FBI task force later searched Johnson and discovered marijuana and crack cocaine. Johnson was arrested and later charged with possession of marijuana, possession of cocaine, and possession of a controlled substance without a tax stamp.
The officers testified that they stopped Johnson and Brown because of Johnson's and Brown's proximity to Thompson's mother's house and their similar appearance to Thompson, i.e., they were black males with short hair and facial hair. The officers stated that there was nothing suspicious about Johnson's and Brown's actions. Furthermore, the officers testified that Johnson looked less like Thompson than Brown. Finally, the officers did not consider the physical differences between Thompson and Johnson relevant. Officer Blegen dismissed the differences in height by stating, “[S]ometimes on our face sheets and the information we receive are not always accurate.” To the extent Johnson did not look like Thompson, Officer Blegen testified, “[T]here are times when the people don't actually look like the photos.”
Johnson filed a motion to suppress arguing there was a lack of reasonable suspicion to detain him. At the suppression hearing, the district court denied the motion after listening to Officer Blegen's testimony. Shortly before trial, Johnson renewed his motion to suppress, and the district court granted Johnson a continuing objection during trial. The jury found Johnson guilty on the possession charges but acquitted on the tax stamp charge. After trial, Johnson filed a motion for a new trial, essentially renewing the motion to suppress. The district court granted Johnson 18 months' probation, suspending his underlying 15–month prison sentence for the cocaine possession and his 12–month jail time for the marijuana possession. Johnson appealed to the Court of Appeals, which affirmed his convictions in an unpublished opinion. State v. Johnson, No. 98,812, 2009 WL 929062, at *4 (2009).
Additional facts will be added as necessary for the discussion below.
In his brief, Johnson presents multiple arguments stemming from his detention, search, and subsequent arrest. Because we conclude that Johnson was illegally seized, we address only his first issue: whether the officer possessed reasonable suspicion to detain him.
State v. Ernesti, 291 Kan. 54, 64, 239 P.3d 40 (2010). “Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion.” State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009).
The State bears the burden to demonstrate that a challenged search or seizure was lawful. State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010). The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. McMullen, 290 Kan. 1, 4, 221 P.3d 92 (2009).
However, because the parties do not dispute the material facts, our suppression question is solely one of law. See State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678 (2011). Consequently, we exercise unlimited review in determining whether Johnson's encounter was consensual or, if it was an investigatory detention, whether it was supported by reasonable suspicion.
Johnson argues that the district court erred in denying his motion to suppress. He contends that the encounter with the FBI task force was an investigatory detention unsupported by reasonable suspicion of criminal activity. As a result, Johnson demands that all evidence obtained be excluded as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In response, the State does not deny that the encounter was an investigatory detention but contends that it was supported by reasonable suspicion.
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Section 15 of the Kansas Constitution Bill of Rights provides lockstep protection to the Fourth Amendment. State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007).
McGinnis, 290 Kan. at 552, 233 P.3d 246.
Johnson was seized the moment the officers exited their unmarked squad cars. The task-force officers were wearing FBI insignia on their clothes; their emergency lights were activated on their squad cars; and some of the officers had drawn their guns. Under the totality of the circumstances test, the officers seized Johnson because a reasonable person would not feel free to refuse an officer's request or otherwise end the encounter when surrounded by an FBI task force with weapons drawn. See McGinnis, 290 Kan. at 552, 233 P.3d 246.
Thus we must analyze whether there was a reasonable articulable suspicion of criminal involvement at the moment Johnson was seized. See State...
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