State v. McKeown

• Decision Date: 25 October 1991
• Docket Number: No. 65897,65897
• Citation: 819 P.2d 644,249 Kan. 506
• Parties: STATE of Kansas, Appellant, v. Trenton Leigh McKEOWN, Appellee.
• Court: Kansas Supreme Court

Page 644

819 P.2d 644

249 Kan. 506

STATE of Kansas, Appellant, v. Trenton Leigh McKEOWN, Appellee.

No. 65897.

Supreme Court of Kansas.

Oct. 25, 1991.

Syllabus by the Court

In an appeal by the State from an order of the district court suppressing evidence and dismissing criminal charges against the defendant, the record is examined and it is held: The district court did not err in finding that the officer did not have a reasonable and articulable suspicion to justify his stopping defendant's vehicle.

Keith E. Schroeder, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellant.

Steven R. Zinn, Deputy Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, and Shelly Wakeman, Legal Intern, were with him on the brief for appellee.

ALLEGRUCCI, Justice:

The State appeals from the district court's order suppressing the evidence and dismissing a complaint charging the defendant with one count each of felony possession of marijuana (K.S.A.1990 Supp. 65-4127b) and possession of drug paraphernalia (K.S.A. 65-4152).

On April 13, 1990, Officer Rick Rhodenbaugh, of the Reno County Sheriff's Department, was patrolling rural Reno County in his marked patrol car. At 9:11 p.m., he received a dispatch to check a vehicle in the area of Valley Pride Road and Morgan Avenue. An individual had reported an older model green pickup parked in the area but did not want to be contacted again by the police about the vehicle. The only information received about the vehicle was that it was an older model green pickup, that it was in the immediate area of where the reporting party lived, and that this party was unfamiliar with the vehicle and could not determine by driving by what the vehicle was doing at this location.

Valley Pride Road runs north and south, while Morgan Avenue runs east and west. This is an intersection of two sand or gravel township roads in an agricultural area. No one lives at the intersection, and there are no structures there. At 9:11 p.m., it was dark with no street lights in the vicinity.

Seven minutes after being dispatched, Officer Rhodenbaugh approached the intersection from the east on Morgan Avenue. As the officer approached the intersection, he observed the taillights or brake lights of a vehicle in front of him just west of the intersection. This vehicle was either stopped or moving very slowly and appeared to be stationary, sitting alongside another vehicle whose headlights came on facing the officer.

This vehicle had been sitting with its lights off on the south side of the gravel road facing east. The vehicle was as far off the road as the shoulder would allow. Officer Rhodenbaugh testified: "I believe it was partially on the roadway. It is possible it had pulled off onto the edge of the grass, but there wouldn't have been probably enough room for it to park in the ditch." The first vehicle left in a westbound direction on Morgan Avenue before the officer arrived at the scene. The second vehicle drove east on Morgan Avenue toward the intersection and then turned south on Valley Pride Road. At that time the officer could see that this second vehicle was an older model green GMC pickup. He stopped the vehicle "as being the vehicle that I was supposed to check on in the area." The officer testified that "the car was not doing anything wrong" when he stopped it.

Officer Rhodenbaugh approached the driver's side of this vehicle, finding the window rolled halfway down. The officer detected the odor of burning marijuana as he spoke with the driver, who was the sole occupant and who identified himself as the defendant. When he asked defendant to get out of the vehicle, he saw an open Budweiser beer container and placed defendant under arrest for illegal transportation of liquor. While patting down defendant, the officer found a baggie containing green vegetation, which was later determined to be marijuana, in defendant's pocket. In searching defendant's truck, the officer found a brass "one-hitter pipe" and zig-zag rolling papers. He also found the burnt ends of marijuana cigarettes, or "roaches," in the ash tray. Neither the drug paraphernalia nor the roaches were observed prior to the search of the vehicle.

On October 19, 1990, at a hearing on defendant's motion to suppress the evidence, the court, relying on State v. Kirby, 12 Kan.App.2d 346, 744 P.2d 146 (1987), aff'd 242 Kan. 803, 751 P.2d 1041 (1988), granted defendant's motion to suppress. In doing so the district judge noted that the only issue of concern was whether the officer had a reasonably articulable suspicion of criminal activity when he stopped the vehicle. The court stated:

"It is my understanding from the evidence, the testimony of the officer, and I think it is clear from his testimony that the only reason he stopped this vehicle is, is because it matched the description given to him by dispatch. There is no other reason that he stopped it. There was no reason to believe there was any criminal activity. I don't think it is unlawful for a car to be parked on the side of the road with its lights off. I don't believe it's unlawful for two cars to be parked side by side visiting or whatever was going on. The officer saw nothing that would suggest any type of criminal activity. He testified that when the defendant's vehicle turned the corner, he saw it to be one that matched the description of the dispatch, and that is why he stopped it. Whether it was described to the officer as check vehicle or suspicious vehicle, I don't think that implies criminal activity. I think that says to the officer, get out there and see what is going on. Now, I don't know that the stop is illegal. I think the officer can stop and find out what the defendant was doing, but once he does, I think he has to recognize that any evidence received from this stop, you know, is unconstitutionally seized.... I think this case falls within Kirby. The officer can stop that vehicle if he has a reasonable suspicion that there is criminal activity. There is no criminal activity that was known to the officer or any reason to believe there was any criminal activity. The only reason for the stop was because it matched the description from dispatch, the vehicle did, and that is not enough. That is not, that does not amount to reasonable suspicion of criminal activity. I am going to sustain the motion."

The State concedes that the prosecution hinged upon the availability of the evidence that had been suppressed and that without that evidence the case should be dismissed. The State reserved its right to appeal the decision. The journal entry documenting the suppression of the evidence also entered a dismissal of the case. The State appealed from this decision.

The sole issue raised by the State in this appeal is whether Officer Rhodenbaugh, based upon the evidence presented at the suppression hearing, had a reasonable and articulable suspicion to stop the defendant. The State contends that Officer Rhodenbaugh was justified in stopping the defendant pursuant to K.S.A. 22-2402(1). K.S.A. 22-2402 is a codification of the United States Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the Court held an officer may stop and frisk an individual even though the officer does not have probable cause to believe a crime has been or is being committed if the officer is able to point "to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." 392 U.S. at 21, 88 S.Ct. at 1880.

K.S.A. 22-2402 provides as follows:

"Stopping of suspect. (1) Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.

"(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may search such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person."

An officer who does not have reasonable suspicion to justify a Terry stop may, however, approach an individual on the street for investigative purposes. State v. Epperson, 237 Kan. 707, 713, 703 P.2d 761 (1985); State v. Marks, 226 Kan. 704, 708-09, 602 P.2d 1344 (1979). The officer can ask the individual's name and request identification but cannot force the individual to answer. The individual is free to leave.

In Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983), the United States Supreme Court reasserted that the Fourth Amendment was not violated by a law enforcement officer's merely approaching an individual on the street or other public place, asking him questions if he is willing to answer, or putting questions to him if he is willing to listen. See Dunaway v. New York, 442 U.S. 200, 210 n. 12, 99 S.Ct. 2248, 2255 n. 12, 60 L.Ed.2d 824 (1979); Terry v. Ohio, 392 U.S. at 34, 88 S.Ct. at 1886 (White, J., concurring). The Court in Royer noted:

"The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. Terry v. Ohio, 392 U.S. at 32-33 (Harlan, J., concurring); id., at 34 (White, J., concurring). He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, [446 U.S. 544, 556, 100 S.Ct. 1870, 1878, 64 L.Ed.2d 497...