State v. Parker

• Decision Date: 07 December 2018
• Docket Number: No. 112,959,112,959
• Citation: 430 P.3d 975
• Parties: STATE of Kansas, Appellee, v. David E. PARKER Jr., Appellant.
• Court: Kansas Supreme Court

430 P.3d 975

STATE of Kansas, Appellee,

v.David E. PARKER Jr., Appellant.

No. 112,959

Supreme Court of Kansas.

Opinion filed December 7, 2018

Christina M. Kerls, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit Vogelsberg, of the same office, was with her on the briefs for appellant.

Julie A. Koon, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

David E. Parker Jr. appeals his convictions of possession of cocaine, fleeing or attempting to elude a police officer, driving with a suspended license, failure to signal while turning, and driving with no headlights. The Court of Appeals affirmed in part, reversed in part, and remanded on Parker's jury selection challenge based on Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). State v. Parker , No. 112,959, 2016 WL 3570512, at *11 (Kan. App. 2016) (unpublished opinion). Parker seeks our review on three issues the panel rejected: (1) whether drug evidence found in his vehicle should be suppressed; (2) whether sufficient evidence existed to support the crime of fleeing or eluding; and (3) whether Parker's prior convictions could be used without a jury finding to increase his sentence. We affirm the Court of Appeals' judgment, although our rationale differs from the lower courts on the evidence suppression question.

FACTUAL AND PROCEDURAL BACKGROUND

The material facts are undisputed. Officer James Summerer observed a vehicle traveling without its headlights on after dark. The officer was driving an unmarked Crown Victoria. He activated its red and blue emergency lights, which projected from the front and the back, and its "wig wag" lights. The vehicle without its headlights on did not pull over. Instead, it continued on, made several turns on city streets, and briefly stopped to let out a female passenger.

While shining his spotlight on the vehicle during the pursuit, Summerer saw the driver, who was "leaned over and diggin[g] around in the area off to his right, which would be the console area of the car." The vehicle finally stopped in a grocery store parking lot. The driver parked the car in the public lot, got out, and locked it.

Summerer arrested the driver and found $965 in cash and a Kansas ID card identifying him as Parker, who acknowledged his driver's license was revoked. Parker quickly told the officer a warrant would be needed to search the automobile. After placing Parker in a police car, Summerer walked around Parker's car but did not see anything illegal in plain view. The officer called for a K-9 unit. After about an hour, the dog arrived, sniffed around the vehicle's exterior, and alerted on the passenger side. The officers unlocked the vehicle to let the dog inside. It alerted again at the center console. Officers searched the area and found plastic-wrapped cocaine folded inside a knit hat and a plastic bag containing cocaine inside a cup holder.

The precise time between the stop and the dog alert was not established below. Summerer testified he took Parker into custody about 7:20 p.m., and the drug evidence was field-tested about 8:40 p.m. Based on this, the district court found "an hour or so" elapsed between the arrest and the dog's alert.

During booking, Summerer told Parker he would be charged with possession of cocaine with intent to distribute in addition to the various traffic charges. Parker told the officer "if he was a drug dealer he felt that the money would be in smaller denominations than what he had, and ... he had just bought some." He conceded "he was a cocaine user" and had "purchased the cocaine in the car" for personal use.

The State charged Parker with possession of cocaine under K.S.A. 2012 Supp. 21-5706(a), (c)(1), fleeing or attempting to elude an officer under K.S.A. 2012 Supp. 8-1568(a), (c)(1), driving with a suspended license under K.S.A. 2012 Supp. 8-262(a)(1), failing to signal when turning under K.S.A. 8-1548, and failing to display lighted headlamps under K.S.A. 8-1703. A jury convicted Parker as charged. The court sentenced him to 37 months in prison. He timely filed a notice of appeal.

As mentioned, the panel rejected three of Parker's challenges, but agreed the district court erred under Batson when handling the State's peremptory challenge to the only African-American prospective juror. The panel remanded the case for further proceedings about the State's proffered race-neutral explanation for the challenge. Parker , 2016 WL 3570512, at *10.

Parker petitioned this court for review of the remaining three issues, which we granted. Jurisdiction is proper. K.S.A. 20-3018(b) (petitions for review of Court of Appeals decision); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

The State did not seek review of the panel's adverse Batson decision. See Supreme Court Rule 8.03(c)(3) (2018 Kan. S. Ct. R. 53); see also State v. McBride , 307 Kan. 60, Syl. ¶ 1, 405 P.3d 1196 (2017) ("If the State does not cross-petition for review of a Court of Appeals holding ..., the Supreme Court will not consider whether that holding was erroneous when reviewing the appeal.").

SUPPRESSION OF EVIDENCE

A police officer's warrantless search "is per se unreasonable under the Fourth Amendment unless the State can fit the search within one of the recognized exceptions to the warrant requirement." State v. Sanchez-Loredo , 294 Kan. 50, 55, 272 P.3d 34 (2012). One such exception is when the search occurs with probable cause plus exigent circumstances. 294 Kan. at 55, 272 P.3d 34. In Parker's case, the State relies on that exception. The State bears the burden to establish a challenged search or seizure was lawful. State v. Morlock , 289 Kan. 980, 985, 218 P.3d 801 (2009).

The State argues the drug dog's alert provided probable cause to search Parker's vehicle without a warrant, even though Parker does not dispute this now on appeal. His arguments focus on what happened before the dog's arrival—particularly the time it took waiting for the dog.

Standard of review

Appellate review for an evidence suppression issue is bifurcated. When reviewing a motion to suppress evidence, the factual underpinnings of the district court's decision are reviewed for substantial competent evidence and the ultimate legal conclusion is reviewed de novo. State v. Reiss , 299 Kan. 291, 296, 326 P.3d 367 (2014). But if the material facts are undisputed, as they are in Parker's appeal, the suppression issue simply presents a question of law subject to de novo review. State v. Cleverly , 305 Kan. 598, 604, 385 P.3d 512 (2016).

Additional background

At the district court, Parker argued the wait for a K-9 unit made the stop's duration unreasonable. He claimed: "The scope of the stop was exceeded in duration, as relating to the reason for the stop." He noted he was not free to leave. Parker also claimed his incriminating statements were made without his "full, knowing, and intelligent waiver" under Miranda because of his "physical, mental, educational and emotional state."

The State argued the vehicle search and evidence seizure were lawful because (1) Summerer had a reasonable suspicion after seeing Parker lean towards the console area; (2) "a dog sniff of an exterior of a car parked in a public place is not a search" under State v. Skelton , 247 Kan. 34, 46, 795 P.2d 349 (1990) ; (3) the dog's alert provided probable cause and "the inherent movability of a vehicle" allowed a warrantless search under the automobile exception; and (4) contrary to Parker's argument that he was detained for a routine traffic stop, he was in fact arrested, so his claim that the stop's duration was unreasonable was irrelevant. In response, Parker merely noted his leaning toward the console area did not constitute probable cause, and he questioned the officer's testimony that he observed Parker's movements during the pursuit. The district court denied suppression.

As to the drug evidence, the court ruled Summerer had a reason to take possession of Parker's car because it was an instrumentality of the crime of fleeing; or in the alternative, under the circumstances Summerer's beliefs were "suspicious enough to request a drug dog" since Parker's actions were consistent with a person who was trying to hide something. The court ruled:

"The vehicle was parked legally. ... At that point the vehicle was actually an instrumentality of the crime of attempt to elude, but in any event, the officer's beliefs under all the circumstances were suspicious enough to request a drug dog, it hit or alerted, and drugs were found inside in the area where the defendant driver was seen making movements consistent with putting something in or taking something out of that area .... The actions of the defendant were suspicious and consistent with someone who was potentially trying to conceal something, but they had reason to take over this car, had the dog take a look at this specific car. Under all the circumstances the Court believes the stop and search is lawful."

In a later written ruling, the court added:

"Court finds officer had [probable cause] to stop and then arrest driver/ [defendant]. [Defendant] parked in public lot [and] locked car. Drug dog brought to scene [and] ‘alerted’ to passenger side. The search of vehicle (mobile) without warrant but with [probable cause] was lawful. Suppression motion denied."

On appeal before the panel, Parker viewed the incident as an investigatory detention. He argued the vehicle search was unlawful because it exceeded the detention's scope, was not a search incident to arrest, and occurred without his consent. Parker conceded he was lawfully arrested, but contended police should have immediately taken him to jail and called his wife, who owned the vehicle, to retrieve it, rather than "allow a defendant who has been arrested to...