State v. Moore
| Decision Date | 23 December 2005 |
| Docket Number | No. 93,386.,93,386. |
| Citation | 124 P.3d 1054 |
| Parties | STATE of Kansas, Appellee, v. George MOORE, Appellant. |
| Court | Kansas Supreme Court |
Nathan B. Webb, assistant appellate defender, and Brian W. Woolley, legal intern, for appellant.
Tony Cruz, assistant county attorney, and Phill Kline, attorney general, for appellee.
Before RULON, C.J., GREENE, J., and BRAZIL, S.J.
Defendant George Moore appeals his convictions for possession of marijuana with the intent to deliver and for failure to affix drug tax stamps, arguing the district court erred in refusing to suppress evidence illegally obtained and to grant a defense continuance in light of new evidence. We affirm.
On October 16, 2002, Kansas Highway Patrol Trooper Richard Jimerson and Junction City Police Officer James Oehm were parked in the median between eastbound and westbound lanes of I-70 near Junction City. Trooper Jimerson observed the defendant's vehicle, which he believed to be following another vehicle too closely. Jimerson pulled onto the highway and approached the vehicles, timing the distance between the two vehicles at less than 1 second. The trooper then executed a traffic stop.
For safety reasons, Trooper Jimerson approached the stopped vehicle on the passenger side. He informed the driver, who was eventually identified as the defendant, of the reason for the stop. According to Trooper Jimerson, the defendant acknowledged he had been following too closely and apologized. The defendant denied making an apology.
The trooper asked the defendant for his driver's license and vehicle registration, which the defendant was able to produce. The vehicle the defendant was driving was registered to James Ward. Trooper Jimerson noted the defendant exhibited a higher degree of nervousness than typically displayed in a routine traffic stop and testified he noted a faint odor of fabric softener, which Trooper Jimerson knew to be commonly used to conceal the odor of drugs.
During this exchange, Officer Oehm arrived as back-up. When Trooper Jimerson returned to his vehicle to run a driver's license check, dispatch originally reported the defendant's license had been suspended. The trooper requested Officer Oehm to question the defendant about this reported suspension. Officer Oehm approached the passenger side window and asked the defendant about having his license suspended. The defendant reacted with confusion and surprise. Officer Oehm then questioned the defendant about his travel plans, and the defendant revealed that he was traveling from Las Vegas and a friend had loaned him the car.
In the meantime, Trooper Jimerson was writing a citation for driving with a suspended license and a warning for following too closely. However, as Trooper Jimerson was doing so, the dispatcher called back to rescind the prior report that the defendant's license had been suspended. Consequently, Trooper Jimerson returned to the defendant's vehicle with the warning citation, the defendant's driver's license, and the vehicle registration. As Trooper Jimerson handed the documents to the defendant, he advised the defendant that he had nothing further for him.
Before stepping away from the vehicle, Trooper Jimerson asked the defendant to answer a few more questions. According to Trooper Jimerson, the defendant had placed his hand on the gearshift before Trooper Jimerson engaged the defendant in further questioning, but the defendant claimed he made no move to leave because Trooper Jimerson remained leaning against the frame of the passenger side window. In any event, the defendant agreed to answer further questions. Trooper Jimerson then inquired whether the defendant had illegal contraband, such as weapons or drugs. The defendant replied that he did not.
Trooper Jimerson testified he next requested permission to search the vehicle and that the defendant replied the trooper could look wherever he wanted. In contrast, the defendant testified Trooper Jimerson merely inquired about the contents of his duffle bag, which the defendant said contained laundry. The defendant contended his consent to search was limited to this bag. Both the defendant and Trooper Jimerson agreed that the trooper asked the defendant to open the trunk and the defendant complied.
After looking in the trunk, Trooper Jimerson conducted a thorough search of the interior of the vehicle, beginning with the passenger side of the vehicle, moving to the driver side, then returning to the passenger side. The evidence is disputed whether Trooper Jimerson removed the ashtray in order to look inside the cavity provided for the ashtray or if the ashtray had been removed prior to the search, but when Trooper Jimerson looked inside the space for the ashtray, he noticed a hinge on the interior passenger door quarter panel and a felt covering which was not factory installed. Further investigation within the quarter panel revealed a package wrapped with fabric softener sheets. The package contained a leafy substance, which the trooper believed to be marijuana.
The defendant was arrested, and a later search of the vehicle revealed a total of 55 pounds of marijuana concealed throughout the vehicle. The State charged the defendant with possession of marijuana with the intent to distribute, in violation of K.S.A. 65-4163(a)(3), and failure to affix Kansas drug tax stamps, in violation of K.S.A. 79-5204(a).
The defendant filed a motion to suppress, and, on joint motion, the district court held a hearing covering the motion to suppress and the bench trial. On the day of the hearing, defense counsel moved for a continuance to investigate a claim by the defendant that the person who had loaned the defendant the vehicle had been indicted on federal drug charges in Maryland. The district court denied the motion. After hearing the evidence, the district court found the search of the vehicle and the seizure of the marijuana was not accomplished in violation of the defendant's Fourth Amendment rights and convicted the defendant of both charged offenses.
The defendant moved for a judgment of acquittal or a new trial based upon the district court's refusal to grant a continuance to investigate the newly discovered evidence before trial. The district court denied the motion and sentenced the defendant to 15 months for the possession with intent to distribute conviction and 6 months for the drug tax stamp conviction. Both sentences were ordered concurrent. The defendant's sentences were suspended, and the defendant was placed on probation for a term of 18 months.
The defendant contends the seized marijuana introduced in evidence against him was illegally obtained and, therefore, the district court should have suppressed the evidence. Appellate review of a suppression ruling is a mixed question of fact and law. This court reviews a district court's factual findings for substantial competent evidence, but the ultimate determination concerning the suppression of evidence is a question of law over which this court has unlimited review. See State v. Green, 32 Kan.App.2d 789, 792, 89 P.3d 940, rev. denied 278 Kan. 849 (2004).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit the government from conducting unreasonable searches and seizures. The reasonableness of a search or seizure is defined by balancing the governmental interest against the individual's interest to be secure from government intrusion. See Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
K.S.A. 22-2402 is a codification of Terry. See State v. Field, 252 Kan. 657, 659, 847 P.2d 1280 (1993). K.S.A. 22-2402(1) provides:
"Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect's actions."
Here, the initial stop was premised upon Trooper Jimerson's observation of the defendant's vehicle following too closely behind another vehicle on the highway in violation of K.S.A. 8-1523. The pertinent provision of that statute reads: "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." K.S.A. 8-1523(a). After clocking the vehicles speeds, the trooper opined the defendant was following too closely by determining the defendant's vehicle was less than 2 seconds behind the other vehicle and by estimating the number of car lengths between the vehicles in relation to the speeds at which the vehicles were traveling.
While our research has revealed no Kansas appellate court decisions concerning the standard of reasonable and prudent driving within the meaning of this statute, the Tenth Circuit Court of Appeals has previously determined that either of these standards may properly direct an officer in the determination of a reasonable and prudent following distance. See United States v. Nichols, 374 F.3d 959, 965 (10th Cir.2004), vacated on other grounds ___ U.S. ___, 125 S.Ct. 1082, 160 L.Ed.2d 1054 (2005), conviction reinstated 410 F.3d 1186 (2005) (2-second rule); United States v. Vercher, 358 F.3d 1257, 1261-62 (10th Cir.2004) (car-length standard).
The Vercher court noted the Kansas statute takes into consideration four variables: speed, following distance, road conditions, and traffic conditions. However, even though the officer did not testify about the traffic conditions, the Vercher court upheld the officer's objective determination the defendant had been following too closely when the distance between the vehicles was approximately 2 car lengths and the recommended distance under normal conditions was 8 to...
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