State v. Jones

• Decision Date: 29 June 2012
• Docket Number: No. 106,605.,106,605.
• Citation: 280 P.3d 824,47 Kan.App.2d 866
• Parties: STATE of Kansas, Appellant, v. Kala JONES, Appellee.
• Court: Kansas Court of Appeals

47 Kan.App.2d 866

280 P.3d 824

STATE of Kansas, Appellant,

v.Kala JONES, Appellee.

No. 106,605.

Court of Appeals of Kansas.

June 29, 2012.

Syllabus by the Court

1. In reviewing an order suppressing evidence, this court generally reviews the factual findings underlying the district court's suppression decision using a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by applying a de novo standard. This court does not reweigh the evidence. This court ordinarily presumes the district court found all facts necessary to support its judgment, unless the record on appeal fails to support that presumption. The State has the burden of proving that a search or seizure was lawful.

2. Whether reasonable suspicion exists is a question of law and is reviewed de novo. In reviewing an officer's belief of reasonable suspicion, this court determines whether the totality of the circumstances justified the detention.

3. The Fourth Amendment to the United States Constitution provides that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. A traffic violation provides an objectively valid reason for conducting a traffic stop; thus, an initial seizure of the driver is not deemed unreasonable, even if the stop is pretextual.

4. During a routine traffic stop, a law enforcement officer may request a driver's license, proof of insurance, and vehicle registration; run a computer check; and issue a citation. When the driver has produced a valid license and proof that he or she is entitled to operate the car, the driver must be allowed to proceed on his or her way without being subject to further delay by the officer for additional questioning. In order to justify a temporary detention for further questioning, the officer must have either consent or reasonable suspicion of the presence of illegal drugs or of some other serious crime.

5. An officer's inquiries or actions unrelated to the justification for an initial traffic stop do not convert the stop into an unlawful seizure so long as they do not measurably extend or prolong the stop. In the absence of consent, an officer may expand the duration of the detention beyond the initial stop when the responses of a detainee and the circumstances relating to the stop give rise to suspicions of a crime unrelated to the traffic offense.

6. Reasonable suspicion is a less demanding standard than probable cause and requires a showing of considerably less than a preponderance of the evidence, but the United States Constitution requires at least a minimal level of objective justification. The officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of possible criminal activity. In assessing factors articulated to support reasonable suspicion, we do not prioritize or pigeonhole each factor, but rather determine whether the totality of the circumstances justifies further detention. Quantity and quality of the factors are considered in the totality of the circumstances that must be taken into account when evaluating whether there is reasonable suspicion. We evaluate such factors employing common sense and ordinary human experience.

7. The observation of slurred speech and cotton mouth may—to an experienced officer—indicate that alcohol or drugs have been recently consumed. Slurred speech by the driver of a motor vehicle—coupled with other factors—may support reasonable suspicion that one is intoxicated or has been driving under the influence.

8. Observation of a person in possession of certain packaging which on other occasions has been found to conceal narcotics does not, standing alone, constitute probable cause. Although contraband is frequently transported in plastic baggies, the presence of an empty plastic baggy in a vehicle is not necessarily a factor tending to support a reasonable suspicion that the vehicle is transporting other controlled substances.

9. We give some degree of deference to a trained and experienced officer to distinguish suspicious activity, but we do not give substantial or total deference to law enforcement's opinion concerning the presence of reasonable suspicion. The officer may possess nothing more than an inchoate and unparticularized suspicion or hunch of criminal activity. Such a level of deference would be an abdication of our role to make a de novo determination of reasonable suspicion.

10. Under the facts of this case, slurred speech and “cotton mouth” by the driver and observation of a clear plastic baggy within the vehicle may have been sufficient to support a further investigation for driving under the influence but were not sufficient to detain the driver for further investigation of transporting controlled substances—including the employment of a drug-sniffing dog to examine the vehicle. We simply cannot conclude that the factors articulated would support reasonable suspicion, especially given the State's burden in the matter.

11. A traffic stop may not exceed the duration necessary to carry out the purpose of the stop. Detaining a driver for even a few minutes in order to allow a drug-sniffing dog to arrive at the scene unreasonably extends the detention when the officer did not need additional time to ask exploratory questions or to write a traffic citation.

12. Under the facts of this case, we hold that the detention of the defendant for at least 20–30 minutes to await a drug-sniffing dog was unreasonably prolonged and this alone would justify suppression of the evidence ultimately discovered through use of the K–9 unit, even if the officer had gained reasonable suspicion that the vehicle might contain controlled substances.

Linda Lobmeyer and Seth Lowry, assistant county attorneys, John P. Wheeler, Jr., county attorney, and Derek Schmidt, attorney general, for appellant.

Therese Marie Hartnett, of Western Regional Public Defender's Office, of Garden City, for appellee.

Before GREENE, C.J., GREEN and BUSER, JJ.

GREENE, C.J.

The State of Kansas perfects this interlocutory appeal of the district court's order suppressing evidence resulting from a warrantless search of a vehicle incident to a traffic stop, which evidence led to charges against Kala Jones for possession of cocaine and possession of drug paraphernalia. Concluding that there was no reasonable suspicion to justify further detention of the suspect and that the detention for a drug dog to arrive unreasonably extended the suspect's detention, we affirm the district court's suppression of evidence found after the drug dog alerted on the suspect's vehicle.

Factual and Procedural Background

In the early morning hours of November 16, 2010, Officer Bill Powers of the Garden City Police Department observed a vehicle driven by Kala Jones and stopped the vehicle for “driving erratically” or “the actions of driving odd.” These actions included the failure to use a turn signal. When the officer approached Jones, he noticed that “she was angry. She was upset that I had stopped her. Her mouth appeared to be dry, to me, like she had cotton mouth. And her words were slurred.” He did not smell alcohol or drugs on the driver's person or in the vehicle. The officer's testimony sometimes also mentioned bloodshot eyes, but his testimony was not consistent on this, and his written report failed to mention this observation. The officer also observed the corner of an empty plastic sandwich bag inside the vehicle.

Based upon these observations, the officer did not proceed with an investigation for driving under the influence of drugs or alcohol, but rather sought the driver's identification and then asked her to step from the vehicle. When the driver denied the officer permission to search the vehicle, the officer contacted his supervisor, Sergeant Martinez, who arrived at the scene “probably 15 minutes after” the vehicle was stopped. After the officer conferred with his supervisor, they decided to ask all vehicle occupants to exit the car and to call for a K–9 unit. The precise time that elapsed waiting for the K–9 unit is in dispute, but the elapsed time was apparently somewhere between 20 and 40 minutes based upon the competing testimony of the officer and Jones. (We also note that the officer's testimony regarding the elapsed times during various stages of his detention of Jones were not consistent.) The vehicle stop occurred no earlier than 12:40 a.m. and no later than 2 a.m., and Jones was booked at the detention center about 3 a.m.

At the traffic stop, the K–9 unit alerted on the vehicle, and drugs and paraphernalia were ultimately found, leading to the charges against Jones. The district magistrate judge initially denied the suppression motion, but the district court granted the suppression motion. The district court's memorandum opinion made no findings on the elapsed time of the detention, but it related the conflict in the evidence as noted above. The key findings or conclusions of the district court were:

“13. It is this Court's finding, based upon the testimony, that the officer was playing a hunch and the traffic stop and the ticket for no use of a turn signal was merely a pretext to hold the Defendant illegally for as long as necessary to get a K–9 unit there in the hope of securing a probable cause finding for searching the vehicle.

“14. If a traffic citation was justified, the officer had only as long as it was reasonably necessary to write the ticket and then release the Defendant to go on her way. Obviously since no ticket was ever wrote, it adds weight to the claim that the stop was only a pretext and that the officer violated the Defendant's constitutional right against unreasonable search and seizure[ ].”

The State timely appeals this ruling.

Standards of Review

In reviewing an order suppressing evidence, an appellate court generally reviews the factual findings underlying the district court...