State v. Lowery

• Decision Date: 22 June 2018
• Docket Number: No. 116,637,116,637
• Citation: 420 P.3d 456
• Parties: STATE of Kansas, Appellant, v. Derrick LOWERY, Appellee.
• Court: Kansas Supreme Court

420 P.3d 456

STATE of Kansas, Appellant,

v.Derrick LOWERY, Appellee.

No. 116,637

Supreme Court of Kansas.

Opinion filed June 22, 2018.

Tony R. Cruz, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellant.

Dakota T. Loomis, of Law Office of Dakota Loomis, LLC, of Lawrence, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by Biles, J.:

This is the State's interlocutory appeal from a district court order suppressing evidence discovered in a vehicle search following a traffic stop. The court ruled the stop was unconstitutionally extended. A Court of Appeals panel affirmed. State v. Lowery , No. 116,637, 2017 WL 2021311 (Kan. App. 2017) (unpublished opinion). We agree with the lower courts. The officer improperly prolonged the traffic stop, so the resulting drug-related evidence must be suppressed. We apply the law as set out in State v. Jimenez , (No. 116,250, this day decided), ––– Kan. ––––, 420 P.3d 464, 2018 WL 3077771 (2018), and State v. Schooler , (No. 116,636, this day decided), ––– Kan. ––––, 419 P.3d 1164, 2018 WL 3077216 (2018).

FACTUAL AND PROCEDURAL BACKGROUND

The facts are undisputed and are supported by audio/video recordings. In August 2015, Junction City Police Officer Nicholas Blake performed a traffic stop on an automobile for following too closely. The vehicle had two occupants: Derrick Lowery, the driver; and his friend, Matthew Markey, the passenger. Blake explained the reason for the stop and requested Lowery's driver's license and vehicle registration. He asked who the vehicle belonged to, and Lowery responded a friend who was not present. Blake asked Lowery to accompany him to his patrol car so he could check the driver's license and vehicle information and fill out a warning citation.

Once in the patrol vehicle, Blake started filling out the citation. While doing so, he asked where Lowery was from and where the two were going. Lowery said he was going to Fraser, Colorado, and coming from Knoxville, Tennessee. He explained he was originally from Knoxville and lived in Colorado for about eight years. He was in Knoxville for the summer to visit his family. He was heading back to Colorado for the upcoming ski season to work with the ski patrol.

Lowery said it was cheaper to fly to Tennessee at the end of the last ski season but more expensive to fly back so he borrowed his friend's car. He said his friend would fly to Colorado during the ski season to retrieve it. According to Lowery, Markey was his high school friend and was going to spend some time with him in Colorado and maybe get a job at a ski resort. Six minutes and 11 seconds into the vehicle stop, Blake called his dispatch with the license and registration information.

Blake then went back to the automobile and asked Markey generally about the pair's travel plans. Markey said they were headed to Colorado to stay at Lowery's home for a few days before returning to Knoxville. Markey said he had a job in Knoxville and Lowery had unexpectedly called him and asked if he wanted to help drive to Colorado.

Blake returned to his police car. Dispatch radioed back that Lowery had no outstanding warrants. Blake gave Lowery a citation, returned his documents, and told him he was free to go. The stop had taken about 12 minutes to this point. As Lowery exited the patrol vehicle but before he shut the door, Blake asked if Lowery would answer additional questions. Lowery agreed. Blake said he just wanted to make sure Lowery did not "have like nuclear weapons ... a million pounds of marijuana ... things of that nature" and asked if he had anything illegal in his car. Lowery answered no.

Blake asked for consent to search the vehicle. Lowery refused. The officer told Lowery to sit down in his patrol car. Once seated, he asked whether Lowery would have a problem if a drug dog came out. Lowery asked, "Do I have the option?"; "Do I have to wait or can I leave?"; and "What's my option?" Blake answered, "[I]t's like a step-by-step process that I have to work on and see what your answers are gonna be." When Lowery asked about probable cause for a search, Blake said he had suspicion and did not need probable cause. Blake detained Lowery.

Blake contacted the Riley County Police Department to see if there were any nearby canine units but was unable to get a response. He had a backup officer stay with Lowery and Markey while he went to his home to retrieve his drug dog. Blake returned with the dog to examine the car's exterior. The dog alerted near the trunk. About 35 minutes passed from the initial stop to when Blake ran the dog around the car. Officers discovered drug-related evidence. Lowery was charged with criminal transportation of drug proceeds, criminal transfer of drug proceeds, and possession of marijuana. See K.S.A. 2014 Supp. 21-5716(b) ; K.S.A. 2014 Supp. 21-5716(c) ; K.S.A. 2014 Supp. 21-5706(b)(3) and/or (b)(7).

Lowery moved to suppress the evidence, arguing: (1) there was no reasonable suspicion for the initial traffic stop; (2) Blake unlawfully detained Lowery after he told him he was free to leave by immediately asking Lowery if he could ask some further questions; (3) although Lowery agreed to answer Blake's additional inquiries, that encounter was not consensual since he would not feel free to leave; and (4) even if it were deemed a consensual encounter, Blake seized Lowery when he ordered him to sit back down in the patrol car and the seizure was unlawful because there was no reasonable suspicion.

The district court held a suppression hearing, at which Blake testified. The court admitted into evidence the audio/video recordings from the stop.

Blake acknowledged he extended the stop by detaining Lowery to wait for the drug dog. He believed the detention was justified because: (1) Lowery and Markey were extremely nervous; (2) the pair made inconsistent statements about their travel plans; (3) the pair was traveling in a third-party vehicle that was recently purchased, licensed, and insured; (4) the pair was traveling to Colorado, which Blake described as a known "producer of marijuana"; (5) a Missouri state trooper informed Blake during the stop that a license plate reader showed the vehicle was in Columbia, Missouri, three times since July 2015; and (6) his online check for airline ticket prices showed it was cheaper to fly from Knoxville to Denver on all but one airline.

The district court granted the motion to suppress. It found the initial traffic stop lawful since Blake had reasonable suspicion Lowery's vehicle was following another car too closely. It held the stop ended when Blake gave Lowery a warning citation and his documents and told him he was free to leave. It held a consensual encounter then occurred but quickly ended when Blake told Lowery to sit down inside the police car. The court also ruled there was no probable cause to justify the vehicle search.

The district court discounted Blake's justification for extending the stop. It found: (1) Blake's testimony could not show nervousness to a degree required for further detention; (2) Lowery and Markey were consistent in stating where they came from, where they were going, where Lowery lived, and what Lowery did for a living and noted the only discrepancy was how long Markey was going to stay in Colorado and whether he was trying to find a job there; (3) the third-party vehicle ownership had limited implications because there was no reason to believe the vehicle was stolen, it was not a rental car, and Blake did not explain why a third-party vehicle that was recently purchased, registered, and insured, would raise criminal suspicion; (4) Lowery gave legitimate reasons why he was going to Colorado by explaining he had lived there for eight years and was employed there; (5) the license plate readings in Columbia were insignificant because it was not far from Tennessee and there was no indication the car had been to Colorado or any known drug source during that time; and (6) Blake's inquiry into the airfare costs was limited since he only checked prices for the day the stop occurred.

The State timely filed an interlocutory appeal. See K.S.A. 2017 Supp. 22-3603 ; see also State v. Newman , 235 Kan. 29, 34, 680 P.2d 257 (1984) (noting suppression must substantially impair the State's case to pursue interlocutory appeal). A Court of Appeals panel affirmed. Lowery , 2017 WL 2021311.

The panel concluded the officer lacked reasonable suspicion to extend the stop, citing State v. DeMarco , 263 Kan. 727, 734-35, 952 P.2d 1276 (1998). It noted, " DeMarco found nervousness, inconsistent or unlikely travel plans, and the use of a rental car did not justify further detention. [Citation omitted.] Similarly, Lowery and Markey's nervousness, their allegedly implausible travel plans, and the use of a third-party vehicle do not justify further detention ." (Emphasis added.) 2017 WL 2021311, at *4.

The State petitioned for review, which we granted. Jurisdiction is proper. K.S.A. 20-3018(b) (petition for review of Court of Appeals' decision); K.S.A. 60-2101(b) (providing Supreme Court jurisdiction over cases subject to review under K.S.A. 20-3018 ).

ANALYSIS

Traffic stops are seizures under the Fourth Amendment and are subject to its limitations. Whren v. United States , 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed. 2d 89 (1996) ; City of Atwood v. Pianalto , 301 Kan. 1008, 1011, 350 P.3d 1048 (2015).

There is no challenge to the initial stop, so we consider it lawful. We are concerned only with whether the stop became an illegal seizure as it evolved. This determination turns on whether the officer measurably extended the stop without reasonable suspicion of or probable cause to believe there is other criminal activity. Rodriguez v. United States , 575 U.S. ––––, 135 S.Ct. 1609, 1615, 191 L.Ed. 2d 492 (2015) ; see also Pianalto , 301 Kan. 1008, Syl. ¶ 2, 350 P.3d 1048 (to comply with Fourth Amendment,...