State v. Pritchett

• Decision Date: 27 October 2000
• Docket Number: No. 84,671.,84,671.
• Citation: 270 Kan. 125,11 P.3d 1125
• Parties: STATE OF KANSAS, Appellant, v. DAVID L. PRITCHETT, Appellee.
• Court: Kansas Supreme Court

270 Kan. 125

11 P.3d 1125

STATE OF KANSAS, Appellant, v. DAVID L. PRITCHETT, Appellee.

No. 84,671.

Supreme Court of Kansas.

Opinion filed October 27, 2000.

Angela M. Wilson, assistant district attorney, argued the cause, and Christine Kenney Tonkovich, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellant.

Sally G. Kelsey, of The Law Offices of Donald G. Strole, of Lawrence, argued the cause, and Donald G. Strole, of the same firm, was with her on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

The State appeals from the district court's order suppressing the evidence and dismissing a three-count complaint involving under-age drinking and obstruction of official duty against David L. Pritchett. The case was transferred by this court from the Court of Appeals pursuant to K.S.A. 20-3018(c).

At the hearing on defendant's motion to suppress, Jim Wilson testified that on August 27, 1999, he was working in Lawrence, Kansas, as an agent with the Kansas Alcohol and Beverage Control, Division of the Kansas Department of Revenue. At approximately 11:45 that night, he and five other agents went onto the premises of a catered event for the purpose of checking for liquor law violations. He noticed a male and female standing together. The male was the defendant.

Agent Wilson testified that the male and female were holding beer in plastic cups. In fact, at the time he saw them, he saw ambercolored liquid in the cups, which he did not know but was "convinced" was beer. He testified that later some of the liquid spilled on him, and "it definitely had the odor of beer."

Based on his experience as the father of a 21-year-old son and Pritchett's being thin and not yet filled out, Agent Wilson suspected that defendant was not yet 21 years of age. Wilson also stated that he had received some training in spotting underage drinkers.

Wilson walked up to the pair, identified himself as an agent with Alcoholic Beverage Control, and asked each of them for proof of age. The female produced identification showing she was 21. Pritchett said he did not have identification. Pritchett seemed "pretty nervous."

Agent Wilson testified that Pritchett was wearing a wristband. Wilson described it as "an indication that he showed somebody that he was 21 years of age." Pritchett admitted that he obtained the wristband by producing identification that showed he was 21.

Agent Wilson told Pritchett that he would need to verify his age and asked him to go to the agent's van for that purpose. Pritchett said he was leaving, needed to be someplace else, and did not have time to go to the van. The agent thought it was odd that the defendant would be leaving when his cup was full. Wilson told Pritchett that he had to go to the van with him. In his report, Agent Wilson wrote: " `I explained to him that until he could produce proof of his age, he was in custody and would have to come with me.'"

Agent Wilson testified that Pritchett was in custody at the time they walked toward the van. Once or twice while they were walking, Agent Wilson held Pritchett by the arm. Up to this point, Wilson had not asked the defendant for his name. His purpose in taking the defendant to the van was to get him to tell his name and to use the radio to call for defendant's date of birth. Even though Pritchett had not given any personal information up to that time, Wilson seemed to think that he would because "[m]ost people do."

When they had nearly reached the van, the defendant ran from Wilson. The agent lost sight of Pritchett, but eventually found him lying on the ground behind a wall. Agent Wilson jumped over the wall, placed Pritchett under arrest, handcuffed him, and walked him back to the van.

The agent searched Pritchett. Defendant's wallet contained two Kansas driver's licenses. One showed his date of birth to be 9/24/ 76 and the other 9/24/79. Pritchett admitted that 1979 was the year of his birth.

In granting defendant's motion to suppress and dismiss the charges, the district court made the following findings of fact:

"1. While attending a catered event, the defendant and a female friend were approached by Agent Jim Wilson of the Alcoholic Beverage Control Bureau of the State of Kansas.

"2. Agent Wilson approached the defendant and a female to whom defendant was speaking because they were holding cups he believed to contain beer and they both `looked young.'

"3. Agent Wilson based this thought on the physical characteristics of the defendant and his companion and his experience with his own children, ages 18 and 21.

"4. Agent Wilson asked each for identification.

"5. The female produced identification showing her to be 21 years of age.

"6. The defendant indicated he had no identification.

"7. At no time did the defendant give Agent Wilson his name, his address or his date of birth, nor was he asked for this information.

"8. Agent Wilson testified that during the encounter the defendant appeared nervous.

"9. Agent Wilson informed the defendant he would have to come to Wilson's van and remain until he could verify his age.

"10. Agent Wilson testified that the defendant was definitely in custody until he could produce proof of his age.

"11. On the way to Wilson's van, the defendant ran away.

"12. When Agent Wilson apprehended the defendant he placed him under arrest.

"13. Agent Wilson based his probable cause to arrest on the following: (a) defendant had produced no identification; (b) he was youthful in appearance; (c) he was nervous; (d) he was resistive; and, (e) he ran away.

"14. Agent Wilson searched the defendant, incident to arrest, and found two pieces of identification, one showing a date of birth of September 24, 1976, and the other a date of birth of September 24, 1979.

"15. Based on this evidence defendant was charged with minor in possession, possessing an altered driver's license and obstruction of official duty."

We first consider whether the district court erred in suppressing the evidence. This court recently stated the standard of review when analyzing a district court's suppression of evidence in State v. Toothman, 267 Kan. 412, Syl. ¶ 1, 985 P.2d 701 (1999):

"When analyzing a district court's suppression of evidence, an appellate court reviews the factual underpinnings of a district court's decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review."

Finding that Agent Wilson did not have reasonable suspicion at the time Pritchett failed to produce identification to believe that defendant was committing a crime, the district court granted defendant's motion to suppress the evidence against him and dismiss the charges. The State advances several arguments why it was error for the district court to suppress the evidence of Pritchett's possessing false identification. The State first argues that when he approached Pritchett, the agent reasonably suspected that the defendant was committing a crime.

At a catered event where alcoholic beverages were being served, Agent Wilson saw the defendant holding a plastic cup containing an amber-colored liquid. Wilson, who has bases in his own 21-year-old son and in his job training for knowing what a 21-year-old looks like, believed that the defendant was younger than that. K.S.A. 1999 Supp. 41-727 makes it a misdemeanor for a person less than 21 years of age to possess, consume, or obtain alcoholic liquor or cereal malt beverage. It is the State's position that when Wilson adjudged the defendant to be younger than 21 and saw that he was holding a cup of liquid that appeared to be beer at a catered event where alcoholic beverages were being served, the agent had reasonable suspicion that defendant was committing the act made criminal by 41-727.

The following standard for determining reasonable suspicion was stated by the court in State v. Slater, 267 Kan. 694, Syl. ¶¶ 1, 2, 986 P.2d 1038 (1999):

"A law enforcement officer may stop any person in a public place based upon specific and articulable facts raising a reasonable suspicion that such person has committed or is about to commit a crime."

"Reasonable suspicion is a less demanding standard than probable cause, not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors, quantity and quality, are considered in the totality of the circumstances that must be taken into account when evaluating whether reasonable suspicion exists."

The district court concluded that Wilson did not reasonably suspect that Pritchett was committing a crime. The district court stated:

"The agent was unable to articulate his reasons for thinking the defendant looked young. No objective criteria was given. When dealing with subjective criteria, such as looking young, there is a greater possibility for abuse and/or mistakes. As in State v. Epperson, [237 Kan. 707, 703 P.2d 761 (1985)], and State v. DeMarco, 263 Kan. 727, (1998), the agent was suspicious but he had no objective facts on which to form a belief that the defendant or his companion was involved in criminal activity."

In Epperson, the officer was on routine patrol at 2 a.m. in an area troubled by burglaries when he stopped two men who had just gotten out of an expensive car about 150 yards from a private club that was open for business. At the suppression hearing, the officer conceded...