State v. Morlock

• Decision Date: 29 August 2008
• Docket Number: No. 97,447.,97,447.
• Citation: 190 P.3d 1002
• Parties: STATE of Kansas, Appellee, v. Ronnie MORLOCK, Appellant.
• Court: Kansas Court of Appeals

190 P.3d 1002

STATE of Kansas, Appellee, v. Ronnie MORLOCK, Appellant.

No. 97,447.

Court of Appeals of Kansas.

August 29, 2008.

[190 P.3d 1006]

Mark T. Schoenhofer, of Law Office of Mark T. Schoenhofer, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Paul J. Morrison, attorney general, for appellee.

Before LEBEN, P.J., MALONE and GREENE, JJ.

PER CURIAM.

Ronnie Morlock appeals his convictions of possession of marijuana with intent to sell and no tax stamp. Morlock claims the district court erred in denying his motion to suppress the evidence. This case arose from a traffic stop in which Morlock was the passenger. Specifically, Morlock claims that the arresting officer violated his constitutional rights by asking questions about travel plans which were unrelated to the purpose and the scope of the traffic stop. Morlock also claims that the arresting officer exceeded the reasonable scope and duration of the traffic stop when he ran a warrant check on Morlock's driver's license without reasonable suspicion of criminal activity.

Factual and procedural background

On February 3, 2006, at 5:22 p.m., Deputy Henry Cocking of the Sedgwick County Sheriff's Department was traveling eastbound on Highway 54 when he observed a van with Arizona tags driving in front of him. Cocking worked as a K-9 handler and primarily investigated narcotics. His work shift that day was ending, and Cocking was on his way home with his narcotics-detection dog in the back of the patrol vehicle. Cocking followed the van for approximately 1 mile and noticed the driver failed to signal two different times when changing lanes. Cocking activated his emergency lights and stopped the van. Once Cocking activated his emergency lights, the video mounted in his patrol vehicle began recording, although the audio failed to record.

Cocking approached the driver of the van, Ronald O'Kelly, who was 16-years-old, and Cocking asked O'Kelly to produce his driver's license. Cocking noticed that O'Kelly was nervous when obtaining his driver's license, that he was shaking and trembling, and that he dropped the license into his lap. Cocking also noticed that the passenger, Morlock, was staring straight ahead and never looked at Cocking. Cocking thought the behavior of both O'Kelly and Morlock was odd, although he admitted some young drivers, like O'Kelly, may be nervous when stopped by an officer.

Cocking asked O'Kelly to step out of the vehicle, and he and O'Kelly walked to the rear of the van. Cocking asked O'Kelly if the information on his driver's license was correct and "where he was coming from." O'Kelly said that the information was correct and that he was traveling from Phoenix to Kansas City. Cocking asked O'Kelly how long he had been in Phoenix, and O'Kelly indicated a couple of days. Cocking asked O'Kelly why he was in Phoenix, and O'Kelly said he was visiting his dad's girlfriend. O'Kelly also told Cocking that the van was rented by his dad. He identified his dad as Morlock, the passenger of the van.

At that point, Cocking went to the passenger side of the van and asked Morlock for the rental agreement and his driver's license. While Morlock was looking for the rental agreement, Cocking asked him "where he was going or coming from." Morlock said he was traveling from Phoenix to Kansas City. Cocking asked Morlock how long he had been in Phoenix, and Morlock responded he had been in Phoenix for 2 days. Cocking asked Morlock why he went to Phoenix. Morlock responded that he went to see a woman he had met on the Internet, but he was unable to contact her. Upon examining the rental agreement, Cocking determined that the van was rented from Tucson and not from Phoenix. Cocking asked Morlock about this discrepancy, and Morlock said he had flown into "a Phoenix/Tucson airport located right in that area." Cocking asked Morlock why he flew to Phoenix but was driving back. Morlock explained that he did not have enough money to purchase a return flight, so he rented the van.

Cocking then took both driver's licenses and the rental agreement to his patrol vehicle. While walking past the van, Cocking looked into the rear window and noticed four bags in the cargo area. Cocking found the number of bags unusual because Morlock and O'Kelly had said they were in Phoenix for only a couple of days. While in the patrol vehicle, Cocking wrote O'Kelly a warning citation and ran both names through a warrant check.

When both names cleared the warrant check, Cocking returned to the passenger side of the van. Both Morlock and O'Kelly were seated in the van. Cocking handed the documents to Morlock, stepped back, and said, "Have a nice day." Cocking turned and walked one or two steps away from the van toward his patrol vehicle, and then he turned and reapproached the van. The passenger window was still down. Cocking asked, "Hey, do you mind if I ask you a couple of questions?" Morlock and O'Kelly both responded, "Yeah, go ahead." Cocking testified that he spoke in a friendly manner and he never displayed his firearm when he reapproached the van.

Cocking asked Morlock and O'Kelly if they would mind stepping out of the van, and both complied. Cocking directed them to stand near the front of the van. Cocking asked Morlock if he could search his person for weapons, and Morlock agreed. Cocking searched and found no weapons on Morlock; Cocking then told Morlock that large amounts of drugs were transported on Highway 54 and asked him if he had drugs or weapons in his van. Morlock said he did not. At that point, Cocking asked, "Can I search your car?" and Morlock responded, "Yes."

After opening the rear of the van, Cocking opened one of the suitcases in the cargo area. Cocking observed cellophane packages that he believed were packaged drugs. Cocking stuck a knife into one of the packages, and he smelled and saw marijuana. Cocking then arrested both Morlock and O'Kelly and called for backup. Law enforcement officers ultimately removed 113 pounds of marijuana from the van.

Morlock was charged with possession of marijuana with intent to sell and no tax stamp. Morlock filed a motion to suppress the evidence. The district court held a hearing on the motion in conjunction with a bench trial. At trial, Morlock conceded the initial stop was proper, but he argued his detention was not reasonably related to the scope of the stop. The State argued that the encounter became voluntary after Cocking returned the documents to Morlock, and even if the encounter was not voluntary, Cocking had reasonable suspicion of criminal activity to support further investigation after the purpose of the traffic stop was completed.

After hearing the evidence, the district court found that the encounter between Cocking and Morlock was continuous and never became voluntary. However, the district court found that Cocking articulated reasonable suspicion of criminal activity to continue the investigation after the purpose of the traffic stop was completed. Thereafter, the district court found that Morlock voluntarily consented to the search of the van. The district court overruled Morlock's motion to suppress the evidence and found him guilty as charged. Morlock timely appeals.

Morlock claims the district court erred in denying his motion to suppress the evidence. Specifically, Morlock claims Cocking violated his rights under the Fourth Amendment to the United States Constitution to be free of unreasonable searches and seizures by asking questions of Morlock and O'Kelly about their travel plans which were unrelated to the purpose and the scope of the traffic stop. Morlock also claims that Cocking exceeded the reasonable scope and duration of the traffic stop when he ran a warrant check on Morlock's driver's license without reasonable suspicion of criminal activity. Under the circumstances, Morlock claims that he was unlawfully detained and Cocking did not receive a voluntary consent to search the van.

The State contends that Cocking asked Morlock and O'Kelly routine questions about their travel plans during a valid traffic stop. The State contends that after the stop concluded, the encounter became voluntary, and Morlock consented to a search of his van. The State argues that even if the encounter did not become voluntary, Cocking had reasonable suspicion of criminal activity to extend the duration of the traffic stop.

Burden of proof and standard of review

The State has the burden of proving that a search and seizure was lawful. K.S.A. 22-3216(2); State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006). In reviewing a district court's decision regarding the suppression of evidence, an appellate court reviews the factual underpinnings by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).

When the material facts to the district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). Here, Cocking was the only witness who testified on the suppression issue and his testimony was undisputed. At the end of the hearing, the district court was not required to weigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. The district court's determination that Cocking articulated reasonable suspicion of criminal activity was a legal conclusion drawn from the evidence which is subject to this court's unlimited review. State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007). An appellate court does not give deference to the district court's judgment on questions of law. State v. Hicks, 282...