State v. Payton

• Decision Date: 21 February 2020
• Docket Number: No. 119,721,119,721
• Citation: 457 P.3d 949 (Table)
• Parties: STATE of Kansas, Appellant, v. Christopher PAYTON, Appellee.
• Court: Kansas Court of Appeals

457 P.3d 949 (Table)

STATE of Kansas, Appellant,

v.Christopher PAYTON, Appellee.

No. 119,721

Court of Appeals of Kansas.

Opinion filed February 21, 2020

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellant.

Brenda M. Jordan, of Brenda Jordan Law Office LLC, of Manhattan, for appellee.

Before Schroeder, P.J., Buser and Atcheson, JJ.

MEMORANDUM OPINION

Buser, J.:

This is the State's interlocutory appeal of the district court's suppression of incriminating evidence found in a vehicle driven by Christopher Payton. After a traffic stop, Deputy Justin Young walked his drug-detection dog, Turbo, around Payton's vehicle. The deputy opined that Turbo detected drugs inside the vehicle and it was searched. As a result, drugs and paraphernalia were found in two locations inside the vehicle. After the filing of criminal charges, Payton filed a motion to suppress evidence contending that Deputy Young did not have probable cause to search the vehicle because of insufficient evidence that Turbo alerted to the presence of drugs. The district court granted Payton's motion and suppressed the evidence. The State filed a timely interlocutory appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 21, 2017, Deputy Young observed Payton driving his vehicle with an expired registration. Upon stopping the vehicle, the deputy discovered the vehicle's liability insurance had also expired. At the conclusion of the stop, Deputy Young informed Payton that he was free to leave but the vehicle had to remain at the scene. After Payton and his passenger left, the deputy walked Turbo around the vehicle a few times. Based on Turbo's sniffing and behavioral changes, Deputy Young determined that Turbo alerted to drugs in the vehicle.

Deputy Young began his vehicle search in the front passenger area but he did not find any contraband. In the backseat, however, the deputy found a backpack which contained a scale with a green leafy substance on it and a pill bottle that contained two plastic baggies with methamphetamine inside. Deputy Young did not find anything in the trunk. Under the driver's seat, however, the deputy found a bag containing smaller plastic baggies of Alprazolam, Oxycodone, and methamphetamine residue.

Payton was charged with possession of methamphetamine, possession of Oxycodone, possession of Alprazolam, possession of drug paraphernalia, a registration violation, no proof of insurance, and failure to display a license plate. Before trial, Payton filed a motion to suppress all evidence obtained from the search of the vehicle.

At the suppression hearing, Deputy Young testified that he is Turbo's only handler and the dog's certification is limited to Deputy Young. Turbo is certified in detecting odors of marijuana, cocaine, heroin, and methamphetamine through the Kansas Police Dog Association and the National Police K-9 Association. When Turbo detects one of these drugs, he notifies the deputy by alerting "to the odor and then he will give a final response once he comes to the source."

Deputy Young testified that he is trained to detect Turbo's alerts. He testified that Turbo's "alert" is a behavioral change whereby Turbo will go from doing a general sniff to a detailed sniff. This means Turbo will "close his [mouth], and he'll start kind of checking in areas." Turbo can start "bracketing" which means he will go from point A to point B in order to locate the center of where the odor is coming from. Then, if Turbo is able, he will indicate that he has detected the center of the odor of drugs by giving his final response—sitting down.

Regarding the drug detection procedure he and Turbo ordinarily follow, Deputy Young testified he does two passes around the vehicle with Turbo, one counterclockwise and one clockwise. Then, depending on the dog's response, the officer and Turbo will go back in detail "trying to locate the source of where he was trying to—or back to the area he alerted in trying to find the source." Deputy Young testified that going back in detail meant to "[h]elp him kind of search, direct him in certain directions, direct him up, direct him down" or by doing a different pass.

The State admitted a videotape which recorded Turbo's activities around the vehicle. Deputy Young testified as the video was played. During the search of the vehicle, Deputy Young testified that Turbo alerted to the rear passenger door/wheel area on the right side of the vehicle and the trunk.

Regarding the rear passenger door, Deputy Young testified that Turbo alerted through a behavioral change called "detailing" which occurs when the dog closes its mouth. The deputy testified that Turbo's mouth was not completely closed during the deployment. "[H]e'll keep it slightly open and when he gets an odor, you'll see him cinch up and you'll see that nose starts working. Instead of breathing through the mouth and nose, he'll switch to [sniffing] directly out of his nose." When the deputy told Turbo to detail, Turbo shut his mouth to sniff. Deputy Young testified that Turbo attempted to sit near the passenger side door. However, the deputy believed Turbo's left leg hit the steep slope next to the roadway which unsettled him and resulted in Turbo not sitting down at that point.

As to the trunk area, Deputy Young testified that Turbo alerted when he changed his behavior by sniffing the trunk with his mouth closed, stopped, froze in place, and looked at him. Deputy Young did not go back and detail the license plate area because, based on Turbo's behavioral changes, Turbo had shown the deputy sufficient indication of the presence of drugs.

On cross-examination, Deputy Young testified that Turbo will sit if he finds the source of the drug odor. Whether that occurs depends on the strength of the odor coming from the vehicle. According to Deputy Young, Turbo has not had any false-positive alerts. Deputy Young acknowledged that an officer removed the license plate from the rear of the vehicle moments before Turbo was deployed, but he testified that the dog had never indicated or alerted to any area where there was a human odor.

After hearing the testimony, reviewing the videotape three times, and considering counsels' arguments, the district court granted the motion to suppress evidence. First, the district court found that Officer Young and Turbo were fully certified and trained in drug detection. The district court stated that "the real question in this case is whether the evidence is sufficient to show that the dog alerted, to establish probable cause to search this vehicle." Based on the district court's legal research, the court concluded that probable cause ordinarily is established by the drug-detection dog alerting to the odor of drugs or by giving a final indication, such as sitting.

The district judge found that Turbo "did not give a final indication in this case, in the Court's view, nor can the Court interpret what the dog was seen doing on the videotape [as] an attempt to make a final indication. I just don't see it. And I'm the trier of fact, and I don't see it."

The district court then questioned "whether the conduct of the dog testified to by its handler was a sufficient alert to establish probable cause." The district court compared Turbo's behavior with the behavior of the drug-detection dog in United States v. Parada , 577 F.3d 1275 (10th Cir. 2009). In that case, the dog did not give a final indication, although its handler, according to the district court here, "testified that the dog's body stiffened, and his breathing became deeper and more rapid and he tried to jump in a window. A lot more, I guess I referred to, as aggressive behavior by the dog than what was testified to in this case."

The district judge concluded:

"Now, in this case, and the Court watched the video, two things stuck out to me, and that is, in my view, the dog appears to simply be sniffing around the vehicle. Stops at the license tag, and stops at the right rear passenger side. Also appeared to stop a little bit on the driver's side. I couldn't see what was happening at the front of the vehicle. But from comments that the handler could have been saying on the video, it didn't seem that the handler was real confident that there had been an actual alert happening. And in fact, when at the very tail-end when discussing with the other officers, they were trying to come up with different explanations as to why he had stopped at the license plate. Maybe there's some air pockets or maybe—I believe actually Officer Riat was—could be heard being asked if she had been handling any drugs earlier in the day, trying to come up with some explanation.

"They read into the record, and the officer testified, that these detailed sniffing and bracketing were things that his dog, as I understood the testimony through his experience with this dog, he has learned as an indication by the dog that it has alerted to the odor of a narcotic. And when his mouth is closed, of course, I couldn't see whether the dog's mouth was closed or half-open, or what the case was.

....

"There's just not enough reliable evidence for this Court to find that the dog did alert in this case to establish probable cause.

....

"THE COURT: ... [T]his was very minimal conduct by the dog. It's not what I would expect. If there had been—I would have expected that dog to have—to have indicated, to have sat at the license plate or to have been more interested in the license plate. I just don't think there was enough. I'm sure that this dog does a lot better job on the other different cases, but not in this one. So I'm going to grant the defendant's Motion to Suppress. Evidence seized as a result of the search is not admissible in court."

The State filed a timely notice of interlocutory appeal.

ORDER TO SUPPRESS EVIDENCE

When reviewing a motion to suppress evidence, an appellate court reviews the factual underpinnings of the decision for substantial competent evidence but the legal conclusion drawn from...