State v. Parker, No. 92,541.

• Court: United States State Supreme Court of Kansas
• Writing for the Court: Rosen
• Citation: 147 P.3d 115
• Parties: STATE of Kansas, Appellee, v. Mikkel D. PARKER, Appellant.
• Decision Date: 08 December 2006
• Docket Number: No. 92,541.

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147 P.3d 115 STATE of Kansas, Appellee,
v.
Mikkel D. PARKER, Appellant. No. 92,541. Supreme Court of Kansas. December 8, 2006.

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COPYRIGHT MATERIAL OMITTED

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Will B. Wohlford, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, argued the cause, and Ryan M. Peck, of the same firm, was on the brief for the appellant.

David Lowden, assistant district attorney, argued the cause, and Charles L. Rutter, assistant district attorney, Nola Tedesco Foulston, district attorney, and Phill Kline,

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attorney general, were on the brief for the appellee.

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

Mikkel Parker seeks this court's review of the Court of Appeals opinion affirming his conviction for possession of cocaine. Parker claims that the Court of Appeals and the trial court should have excluded evidence because it was seized while he was unlawfully detained. Parker further claims that without the unlawfully seized evidence, there is insufficient evidence to support his conviction.

FACTS

Officer Bachmann received information from another Wichita police officer that some guys were hanging out in a garage at an apartment complex. Although there were no reports of criminal activity in the area, Officer Bachmann was curious about what the men were doing, so he decided to drive by in his marked patrol car and check on their activities. When he arrived at the apartment complex, he observed three black males sitting on chairs in a garage. Officer Bachmann, who had worked in that part of Wichita for approximately 23 years, did not recognize any of the individuals and did not see any indication of gang affiliation. Nevertheless, he decided to take a closer look and determine if the individuals lived in the nearby apartments.

Officer Bachmann pulled into the long driveway leading to the garage, eventually parking his car behind two other cars in the driveway. As Officer Bachmann approached the garage in his patrol car, he observed one of the men, who was later identified as DeMarco Hoover, stand up and stuff something in his pocket. Hoover then bent over and began picking money up from the concrete floor. A second, unidentified man got up and walked to a nearby apartment.

Hoover and the third man, who was later identified as Mikkel Parker, approached the driver's side of Officer Bachmann's patrol car. Before Officer Bachmann exited from the car, he asked Hoover and Parker what was going on and whether they lived at the apartment complex. Hoover nodded affirmatively, indicating that he lived there. Officer Bachmann noticed that Parker had his right hand concealed and was concerned that Parker had a weapon. Officer Bachmann quickly exited his patrol car and asked Hoover's name because he was closer to Bachmann. After Hoover identified himself as DeMarco Hoover, Officer Bachmann asked both men to lift their shirts and turn around, so he could determine if they were armed. Both men complied, demonstrating that they were not armed. Parker then falsely identified himself as Quincy Galbreath. Officer Bachmann first directed his attention toward Hoover, asking whether he had anything illegal. Hoover admitted that he had a blunt, a marijuana cigar or large marijuana cigarette. At that point, Officer Goodman arrived. Officer Goodman searched Hoover and found a bag of marijuana. Officer Goodman then took Hoover into custody while Parker stood by and watched.

After Hoover was arrested, Officer Lane arrived. Officer Bachmann asked Officer Lane to stand with Parker while he went into the garage to investigate. Inside the garage, Officer Bachmann found a game table, dice, and a handgun. While in the garage, Officer Bachmann used his radio to check for outstanding warrants on either Hoover or Galbreath, the false identity used by Parker.

While he was standing with Officer Lane, Parker acted nervous, fidgeting and putting his hands in his pockets despite Officer Lane's request for Parker to keep his hands out of his pockets. Parker asked Officer Lane for permission to speak with Officer Bachmann. After Officer Lane granted Parker's request, Parker asked Officer Bachmann if he could leave. Officer Bachmann denied Parker's request to leave because he had been advised of a possible warrant for Galbreath.

At that point, Officer Bachmann asked Parker if he had "anything on him." Parker said no, and Officer Bachmann asked if he could check Parker for contraband or drugs. Parker said yes and pulled a large wad of cash from his left pocket. Parker then put his right hand in his right pocket and brought his hand out with a clenched fist.

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Officer Lane observed a plastic baggie in Parker's fist and announced that Parker had a plastic baggie or dope.

Parker immediately started running, the officers pursued, and they were quickly able to tackle him. As Parker hit the ground, he threw the plastic baggie into the grass. The officers subdued Parker, then arrested him. Officer Bachmann retrieved the plastic baggie, which contained white rocks consistent with crack cocaine. The crime lab later confirmed the substance to be cocaine.

Officer Bachmann discovered Parker's true identity when he found a parole card in Parker's pocket. Parker was charged with possession of cocaine. He filed a motion to suppress all of the tangible evidence. After Parker waived his right to a jury trial, the district court combined the hearing on Parker's motion to suppress with his bench trial. The district court denied Parker's motion to suppress and found him guilty of possessing cocaine. Parker appealed, and the majority of the Court of Appeals affirmed the district court. State v. Parker, No. 92,541, 2005 WL 3434002, unpublished opinion filed December 9, 2005, slip op. at 7. Judge Caplinger dissented, concluding that the district court should have suppressed the evidence. Parker, slip op. at D-7. Relying on Judge Caplinger's dissent, Parker petitioned this court to review the Court of Appeals decision. This court granted Parker's petition for review.

ANALYSIS

Parker claims that he was unlawfully detained when officers observed cocaine in his possession and seized it. Parker asserts that the cocaine must be suppressed as the fruit of the poisonous tree because there was no reasonable suspicion to support his detention.

An appellate court reviews a defendant's request to suppress evidence using a bifurcated standard. The factual underpinnings are reviewed to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion drawn from those facts is reviewed as a question of law using a de novo standard. State v. Hill, 281 Kan. 136, 140, 130 P.3d 1 (2006).

Although the ultimate question is whether the district court should have suppressed the evidence, the first step in the analysis is to determine the nature of the encounter between Parker and the police officers.

The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights assure each person's right to be secure in his or her person and property against unreasonable searches and seizures. As a result of this protection, the law has developed four types of encounters between law enforcement officers and citizens. The first type of encounter is consensual and is not considered a seizure under the constitutional prohibitions. Hill, 281 Kan. at 141, 130 P.3d 1. The second type of encounter is an investigatory detention or Terry stop. Hill, 281 Kan. at 141, 130 P.3d 1; see Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). During an investigatory detention, 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." K.S.A. 22-2402(1). The officer may demand the person's name and address and an explanation of the person's actions. K.S.A. 22-2401(1). The officer may also frisk the person for weapons if necessary for the officer's personal safety. K.S.A. 22-2401(2). The third type of encounter is a public safety stop, which allows a law enforcement officer to approach an individual to check on his or her welfare. For this type of encounter, the officer must be able to articulate specific facts that indicate a concern for public safety. Hill, 281 Kan. at 141, 130 P.3d 1. The fourth type of encounter is an arrest. To arrest an individual, a law enforcement officer must have a warrant, probable cause to believe there is a warrant for the person's arrest, or probable cause to believe that the person is committing, has committed, or is about to commit a crime. K.S.A. 22-2401.

The nature of the encounter in this case turns on the distinction between consensual encounters and investigatory detentions. Parker argues that the encounter began as

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an investigatory detention because Officer Bachmann prevented him from leaving by blocking Parker's car in the driveway. The State, on the other hand, argues that the encounter was consensual until Officer Bachmann received information that there was a warrant for Galbreath, the false name Parker had given. At that point, the State asserts that the encounter became an investigatory detention supported by reasonable suspicion. The State points to the fact that Hoover and Parker approached Officer Bachmann's car rather than waiting for Officer Bachmann to approach them.

Consensual encounters are distinguished from investigatory detentions by determining whether a reasonable person would feel free "`"`to disregard the police and go about his business.'"'" State v. Morris, 276 Kan. 11, 19, 72 P.3d 570 (2003) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389, [1991]). In Morris, this court concluded that the encounter was not consensual when law enforcement officers parked behind the defendant's truck in a secluded location, activated the emergency lights, and illuminated the back of...