State v. Moore

• Decision Date: 16 March 2007
• Docket Number: No. 93,386.,93,386.
• Citation: 154 P.3d 1
• Parties: STATE of Kansas, Appellee, v. George MOORE, Appellant.
• Court: Kansas Supreme Court

154 P.3d 1

STATE of Kansas, Appellee, v. George MOORE, Appellant.

No. 93,386.

Supreme Court of Kansas.

March 16, 2007.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and Nathan B. Webb, of the same office, and Brian W. Woolley, legal intern, were with him on the brief for appellant.

Tony Cruz, assistant county attorney, and Phill Kline, attorney general, were on the brief for appellee.

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

The district court denied George Moore's motion to suppress and convicted him of possession of marijuana with the intent to deliver and of failure to affix drug tax stamps. The Court of Appeals affirmed in State v. Moore, 34 Kan.App.2d 795, 124 P.3d 1054 (2005). We granted Moore's petition for review under K.S.A. 20-3018(b).

The sole issue on appeal is whether the motion to suppress should have been granted. We affirm.

FACTS

On October 16, 2002, Kansas Highway Patrol Lieutenant Richard Jimerson and Junction City Police Officer James Oehm were parked in the median of I-70 west of Junction City. Around 3:35 p.m., Jimerson observed a vehicle heading eastbound following a red car closely. Both of the vehicles were in the right-hand lane. According to Jimerson, the vehicle he observed was "only about a car length and a half behind this red car." He pulled out to pursue, timing the distance between the two vehicles at .72 seconds. Jimerson then executed a traffic stop.

After the vehicle pulled over, Jimerson approached the driver from the passenger side in order to avoid traffic. He informed the driver, later identified as George Moore, that he had stopped the vehicle because it was following the other car too closely. According to Jimerson, Moore acknowledged that he was following too closely and apologized. However, Moore denied this.

Jimerson asked Moore for his driver's license and registration, which he produced. The vehicle was registered to James Ward. During the exchange, Jimerson noted that Moore appeared highly nervous. His hands were shaking, and he was breathing deeply; he appeared more nervous than the regular nervousness Jimerson has observed of drivers during the thousands of traffic stops he had made in his 15-year career. Jimerson also smelled a "slight odor" of fabric softener, which he knew from his experience with the highway patrol was often used to conceal the odor of drugs.

During the stop, Officer Oehm arrived as back-up. Jimerson ran Moore's license through dispatch, which initially reported the license suspended. Jimerson then asked Oehm to inform Moore of the suspension. When Oehm did so, Moore reacted with confusion and surprise. When questioned about his travel plans, Moore stated that he was returning from Las Vegas to his home in Maryland and a friend had loaned him the car. Moore further stated that he had gone to Las Vegas for an army airborne reunion.

Dispatch later informed Jimerson that Moore's license was not suspended. He informed Moore of the error and issued a warning for following too closely. When Jimerson returned Moore's license and registration, he informed Moore that was "all [he] had for him." Jimerson observed that Moore remained nervous to the same degree as before.

According to Jimerson, Moore placed his hand on the gearshift as if he was going to drive away. Moore, however, claimed that he did not attempt to leave because Jimerson was leaning against the frame of the passenger window. Before Jimerson moved from the side of the vehicle, he asked Moore if he could ask him some more questions. Moore agreed, and Jimerson asked whether Moore possessed contraband, such as weapons or drugs. Moore denied possessing contraband.

Jimerson claimed that when he requested permission to search the car, Moore replied that he could look wherever he wanted. Moore, however, testified that Jimerson only asked about the army duffel bag in the backseat, which Moore said contained laundry. Moore offered to show Jimerson the contents of the bag but claimed that any consent was limited to the bag. Instead of then searching the bag, Jimerson asked Moore to open the trunk; Moore complied.

After searching the trunk, Jimerson looked underneath the car. He entered the car and searched the duffel bag, finding no fabric softener sheets inside, but noticing that the fabric softener smell was much stronger in the backseat area. He then searched both the passenger and driver sides of the interior. He testified that from his experience, the quarter panel is a common drug concealment area in this type of car. The quarter panel apparently contained an ashtray area.

The record is unclear whether Jimerson removed the ashtray in the quarter panel or whether it had been removed prior to his entry into the car. He does not remember, and there is no testimony indicating that he removed it. Nevertheless, when he looked in the ashtray cavity area, he noticed a nonfactory hinge on the door quarter panel. He also saw a felt covering; it too was nonfactory. Jimerson concluded he was confronted with a nonfactory panel. He then pulled molding from around the door edge and the plastic panel from the door, revealing a vacuum sealed package wrapped in fabric softener sheets. Inside of the package, Jimerson saw green vegetation that he believed was marijuana.

Upon Jimerson's discovery, he instructed Oehn to arrest Moore, who was subsequently charged with possession of marijuana with intent to deliver, in violation of K.S.A. 65-4163(a)(3), and the failure to affix a drug stamp, in violation of K.S.A. 79-5204(a) and K.S.A. 79-5208. A later search revealed a total of 55 pounds of marijuana hidden in the vehicle.

Moore filed a motion to suppress the seized items. After hearing testimony and watching a videotape of the stop, the district court concluded that the search and seizure did not violate Moore's Fourth Amendment rights. The court convicted Moore of both charges and sentenced him to 18 months' probation with concurrent underlying prison sentences of 15 months for possession of marijuana with the intent to deliver and 6 months for failure to affix a tax stamp.

Moore appealed, and a majority panel of our Court of Appeals affirmed, with Judge Greene dissenting.

Other facts will be supplied as are necessary to the legal analysis.

ANALYSIS

Issue: The evidence was not seized in violation of Moore's Fourth Amendment rights.

Moore argues that the district court erred in failing to suppress for a number of reasons: he contends that the traffic stop was illegal; that even if the stop was legal, it was not lawfully extended because it did not become consensual nor was reasonable suspicion present; that even if the stop was legally extended, he did not give voluntary consent to the search; that even if he did give consent to the search, Jimerson exceeded the limited scope of the consent; and that even if he gave consent to search the entire car, Jimerson exceeded even that scope by impairing the structural integrity of the car in his door search.

Each reason will be addressed in turn.

Overall standard of review

The Fourth Amendment guarantees "the 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 identical protection to the Fourth Amendment. State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).

When reviewing a motion to suppress evidence, this court reviews the factual underpinnings of a district court's decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. State v. Horn, 278 Kan. 24, 30, 91 P.3d 517 (2004). The State bears the burden to demonstrate that a challenged search or seizure was lawful. Anderson, 281 Kan. at 901, 136 P.3d 406.

Legality of the traffic stop

Moore first argues that the traffic stop was illegal. A traffic stop is a seizure under the purview of the Fourth Amendment. Thus, in order to stop a vehicle, "an officer must have articulable facts sufficient to constitute reasonable suspicion under K.S.A. 22-2402(1) and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) [Citation omitted.] A traffic violation provides an objectively valid reason to effectuate a traffic stop, even if the stop is pretextual. [Citations omitted.]" Anderson, 281 Kan. at 901, 136 P.3d 406.

Whether reasonable suspicion exists is a question of law. We use a mixed question standard of review: whether substantial competent evidence supports the district court findings, while the legal conclusion is reviewed de novo. See Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); United States v. Dodson, 109 F.3d 486, 488 (8th Cir.1997).

The district court analyzed the stop as follows:

"The flow of traffic was about 68 miles per hour, at milepost 293, where the car was stopped. And Mr. Moore's car was .72 seconds behind the car in front of him, which is less, of course, than 1 second, and, at that speed constituted in the opinion of the officer, a violation of the statute, for following too closely. So, therefore, the Court finds that the stop here was legal."

The stop was initiated based upon Jimerson's observation that Moore's car was following another vehicle too closely on the highway in violation of K.S.A. 8-1523(a). It states: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." Jimerson concluded that Moore was following too closely by (1) calculating that Moore was traveling less than 1 second behind the other car, and (2) estimating the number of car lengths between the vehicles in relation to their speed of travel. Moore...