State v. Lee

• Decision Date: 27 April 2007
• Docket Number: No. 95,348.,95,348.
• Citation: 156 P.3d 1284
• Parties: STATE of Kansas, Appellant, v. Daniel LEE, Appellee.
• Court: Kansas Supreme Court

156 P.3d 1284

STATE of Kansas, Appellant, v. Daniel LEE, Appellee.

No. 95,348.

Supreme Court of Kansas.

April 27, 2007.

Ellen H. Mitchell, county attorney, argued the cause, and Bobby J. Hiebert, Jr., assistant county attorney, and Phill Kline, attorney general, were with her on the brief for appellant.

JoAn M. Lindfors, assistant public defender, argued the cause, and Pamela S. Sullivan, public defender, was on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.:

This matter comes before us on Daniel Lee's petition for review. The district court granted Lee's motion to suppress evidence, and the State appealed. The Court of Appeals reversed the district court's decision, concluding that the evidence was not seized in violation of Lee's Fourth Amendment rights.

FACTS

The events leading to Lee's arrest began at approximately 10:30 p.m. on July 30, 2005. Two Salina police officers were dispatched to a public park in response to a report that a suspicious man was walking through the park, looking at the ground, and hitting the ground with a stick. The report indicated only that the man's behavior was odd but did not indicate that the man was threatening anyone with the stick or committing a crime.

As the uniformed officers approached the man, who was later identified as Daniel Lee, they observed him looking at the ground and poking it with a stick. One of the officers asked Lee if they could speak with him. Lee continued to look at the ground as if searching for something but agreed to speak with the officers. The officer then asked Lee for identification, and Lee handed the officer his drivers license. The officer then asked Lee why he was in the park. Lee responded that he was looking for a wallet that he had lost the previous week. Although skeptical that the wallet would still be in the park, the officer searched the ground in the immediate area with his flashlight to help Lee look for the wallet.

Lee remained focused on his search for the missing wallet as the officers questioned him. Although Lee's behavior was not threatening, one of the officers asked Lee if he had any weapons. Lee responded affirmatively and removed two legal knives from his pocket, placing them on a nearby picnic table. While Lee continued to search the ground for the wallet, one of the officers asked for permission to conduct a pat-down search for weapons. The officer did not ask Lee to empty his pockets. Without hesitating, Lee consented to the pat-down search for weapons.

During the pat-down, the officer discovered a bulge in Lee's coin pocket. The officer reached into Lee's coin pocket and removed a rolled-up baggie containing a crystalline powder, which resembled methamphetamine. The officer then arrested Lee and placed him in handcuffs. The officers also took custody of Lee's duffel bag and searched it. Inside a pocket of the duffel bag, the officers found what they suspected to be marijuana residue.

The State charged Lee with possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia. Lee filed a motion to suppress the evidence. The district court conducted an evidentiary hearing, receiving testimony from one of the officers. Lee did not testify. The district court concluded that the officers violated the limitations of a Terry stop and coerced Lee's consent to the search. Based on these conclusions, the district court granted Lee's motion to suppress, stating:

"This is still America, and I don't think the fact that somebody is allegedly acting strange or, quote, looked out of place in a park, waives that person's rights as a citizen. The officers ascertained his identity and his business and that was all they had a right or responsibility to do at this point. The case law is clear that a generalized suspicion, or feeling of officer insecurity, is certainly not sufficient to trigger a request for a search."

The State appealed the district court's decision to the Court of Appeals. A majority of the Court of Appeals panel concluded that the encounter between Lee and the officers was consensual and Lee voluntarily consented to the search. State v. Lee, No. 95,348, 134 P.3d 691, 2006 WL 1460661, unpublished opinion filed May 26, 2006. The majority reversed the district court's order suppressing the evidence and remanded the matter for further proceedings. A dissenting judge agreed with the district court's analysis, concluding that the evidence should have been suppressed. We granted Lee's petition for review.

ANALYSIS

The only issue before us is whether the evidence should be suppressed. We review a motion to suppress evidence using a bifurcated standard. First, we review the factual underpinnings using a substantial competent evidence standard. Next, we consider the ultimate legal conclusion drawn from the facts as a question of law subject to unlimited review. State v. Parker, 282 Kan. 584, 588, 147 P.3d 115 (2006). When the facts are undisputed, the question of whether the evidence should have been suppressed is a question of law subject to de novo review. State v. Hill, 281 Kan. 136, 140, 130 P.3d 1 (2006).

Lee claims that the district court properly suppressed the evidence against him because it was seized in violation of his Fourth Amendment right against unreasonable searches and seizures. Lee raises two arguments. First, Lee argues that the district court properly concluded that the officers did not have reasonable suspicion to detain him. Second, Lee asserts that the officers exceeded the scope of his consent to a pat-down search for weapons.

Without disputing Lee's version of the facts, the State argues that the initial encounter between Lee and the officers was consensual. The State asserts that although the encounter became an investigatory detention when the officers asked to search Lee for weapons, Lee voluntarily consented to the search.

Our analysis begins with the initial encounter between Lee and the officers. The district court concluded that the initial encounter was a Terry stop or an investigatory detention. The majority of the Court of Appeals, on the other hand, concluded that the initial encounter was consensual. Slip op. at 9, 2006 WL 1460661 *2.

To resolve the conflict in the lower courts' analyses, we must start our analysis with the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, which guarantee that each person shall be free from unreasonable searches and seizures. Based on the development of the law regarding these guarantees, we have classified encounters between police and citizens into four categories: voluntary encounters, investigatory detentions, public safety stops, and arrests. A voluntary or consensual encounter is the only type of encounter that does not implicate the protection of the Fourth Amendment. Parker, 282 Kan. at 588, 147 P.3d 115. For an investigatory detention, law enforcement officers must have reasonable suspicion to believe that an individual is committing, has committed, or is about to commit a crime. K.S.A. 22-2402(1). For a public safety stop, a law enforcement officer must be able to articulate specific facts that indicate a concern for public safety before approaching an individual to check on his or her welfare. 282 Kan. at 588, 147 P.3d 115. For an arrest, a law enforcement officer must have a warrant for the individual's arrest, probable cause to believe there is a warrant for the individual's arrest, or probable cause to believe that the individual is committing or has committed a crime. K.S.A.2006 Supp. 22-2401.

To distinguish consensual encounters from investigatory detentions, we must determine whether a reasonable person would feel free to go about his or her business and disregard the law enforcement officer. Parker, 282 Kan. at 589, 147 P.3d 115. There are several objective factors that may be considered to determine whether there was a coercive show of authority such that the person would not feel free to disregard the officer. Those factors include the "presence of more than one officer, the display of a weapon, physical contact by the officer, or use of a commanding tone of voice." State v. Hayes, 35 Kan.App.2d 616, 624-25, 133 P.3d 146 (2006) (holding that a valid traffic stop did not become a consensual encounter when the officer handed the driver a warning ticket because the officer advised the defendant that he was finished "as far as that [was] concerned" and the defendant was standing in front of two officers and two patrol cars with their emergency lights flashing.); see also City of Topeka v. Grabauskas, 33 Kan. App.2d 210, 219-20, 99 P.3d 1125 (2004) (holding that a reasonable person would not feel free to leave when an officer grabbed her and attempted to place her in handcuffs); c.f. State v. Jennings, 33 Kan.App.2d 244, 249-50, 99 P.3d 1145 (2004), rev. denied 279 Kan. 1009 (2005) (holding that commanding individuals to remove their hands from their pockets so officers could see them did not convert a consensual encounter into an investigatory detention).

In State v. Reason, 263 Kan. 405, 412, 951 P.2d 538 (1997), this court concluded that the initial encounter was consensual when two officers approached the defendant in a public place and asked for identification. Reason and a companion were sleeping in Reason's BMW automobile with the doors wide open in a public parking lot on a hot afternoon. Unable to see the occupants and concerned that the BMW had been stolen or abandoned, the two officers parked their patrol car behind the BMW to investigate. When the officers observed the defendant and his companion asleep in the car, they woke them and began asking questions to determine who they were and why they were sleeping in a public parking lot. Reason verbally identified himself and stated that he was the owner of the car but could not provide a driver's license or any registration documents for the car. The...