State v. Reiss

Decision Date02 May 2014
Docket NumberNo. 102,071.,102,071.
Citation299 Kan. 291,326 P.3d 367
PartiesSTATE of Kansas, Appellee, v. Rex REISS, Appellant.
CourtKansas Supreme Court


Syllabus by the Court

1. The Fourth Amendment to the United States Constitution guarantees [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Section 15 of the Kansas Constitution Bill of Rights provides the same guarantee.

2. Law enforcement interaction with a person is consensual, not a seizure, if under the totality of circumstances, the officer's conduct would convey to a reasonable person that he or she is free to refuse the requests or otherwise end the encounter.

3. Appellate review of a trial court's determination of whether a reasonable person would feel free to refuse the law enforcement officer's requests or otherwise terminate the encounter consists of two parts: (1) the factual underpinnings are reviewed under a substantial competent evidence standard and (2) the ultimate legal conclusion drawn from those facts, i.e., whether a reasonable person would feel free to refuse the requests or to terminate the encounter, is reviewed under a de novo standard.

4. In applying the totality of the circumstances test in a Fourth Amendment context, no one factor is legally determinative, dispositive, or paramount. The outcome does not turn on the presence or absence of a single controlling or infallible touchstone and requires careful scrutiny of all the surrounding circumstances.

5. Under the circumstances of this case, a reasonable person would not have felt free to ignore the officer's command. The defendant therefore was seized when he complied with the command. But the seizure was reasonable and lawful because it was justified by concerns for officer safety.

6. Investigatory detentions are permitted under K.S.A. 22–2402 and the Fourth Amendment if an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime.

7. Under the circumstances of this case, although the initial seizure was justified by safety concerns, the justification had ended before the officer requested the defendant's driver's license and vehicle documentation. The officer therefore performed an investigative detention without reasonable suspicion of criminal wrongdoing.

Matthew J. Edge, of Kansas Capitol Appellate Defender Office, argued the cause and was on the brief for appellant.

Cheryl M. Pierce, assistant county attorney, argued the cause, and Steve Six, attorney general, was with her on the brief for appellee.

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

Rex Reiss contends the district court and Court of Appeals both erred in refusing to suppress evidence from a traffic stop that led to his conviction for driving under the influence of alcohol. Reiss asserts he was unlawfully seized, tainting the evidence and requiring its suppression.

We agree. Evidence was obtained after a seizure unsupported by reasonable suspicion. So we exclude the tainted evidence, reverse Reiss' conviction that relied upon it, and remand to the district court for further proceedings.

Facts and Procedural History

At about 1 a.m. Augusta Police Officer Ricky Ritter observed a blue pickup truck traveling without its headlights on. Traveling directly behind was a red pickup truck driven by Reiss, with a van following Reiss.

Ritter pulled his squad car behind the three vehicles and activated his emergency lights, intending to stop only the blue truck. The driver of the van pulled over, and Ritter passed it. The driver of the blue pickup and Reiss then pulled over simultaneously. Ritter stopped behind Reiss' truck because of insufficient room behind the blue pickup. He testified that even with sufficient space, he would not have parked in front of Reiss because that location would have required turning his back to an unknown driver.

As Ritter pulled over, he called his dispatcher to announce the stop. During that call and immediately after the vehicles stopped, Reiss left his truck cab and approached Ritter's squad car. Ritter described Reiss' action as “charging me.” With a raised voice, Reiss repeatedly demanded that Ritter explain why he had been pulled over. Ritter then requested backup, exited his squad car, and directed Reiss to stand back. He also told Reiss to get back in his truck. Reiss' behavior worried Ritter because it was unusual for someone to exit a vehicle and approach a squad car during a traffic stop.

Reiss ignored Ritter's direction and continued to demand an explanation for what he did wrong. After Ritter repeated his direction, Reiss eventually complied.

At the suppression hearing, Ritter testified about this roadside exchange with Reiss as follows:

“Q. [Attorney for the State:] Okay. Did ultimately you meet him up close face-to-face?

“A. [Ritter:] I—he finally started backing towards his vehicle as I was walking toward him. And he got back into his truck before I walked up face-to-face with him.

“Q. [Attorney for the State:] Okay. Did you have any conversation with him at that point?

“A. [Ritter:] Yes, I did.

“Q. [Attorney for the State:] What conversation did you have? Tell us about that.

“A. [Ritter:] I asked him why he had gotten out of his vehicle. And he told me that he just didn't really know what he did. I said that's ok. I asked him for his driver's license and proof of insurance to identify who he was. I was talking to him, I could tell that he was—he was having trouble pronouncing his words. He was slurring and kind of mumbling. Hard to understand. And his eyes were bloodshot and kind of had a watery look to them. They were also droopy. I asked him if he had been drinking. And he said that he had, but not very much.” (Emphasis added.)

Ritter then clarified the event sequence of this interaction:

“Q. [Attorney for the State:] Okay. Now you mentioned that you asked him for his license and registration—Mr. Reiss?

“A. [Ritter:] Yes.

“Q. [Attorney for the State:] Why did you ask him for those things?

“A. [Ritter:] To identify who he was. He stopped his vehicle in front of me. And got out and ran back towards me. So I—I wanted to know who I was dealing with.

“Q. [Attorney for the State:] At the time you asked him for his license and registration, had you noticed anything about his demeanor, the slurring words and so forth?

“A. [Ritter:] No. Not before then. (Emphasis added.)

As Ritter talked to Reiss, Sergeant Chris Scheuber arrived to provide backup. Ritter told Scheuber he believed Reiss was driving under the influence of alcohol (DUI). Ritter decided to investigate Reiss for DUI after observing his behavior and appearance during their exchange at the truck. But first Ritter approached the blue pickup truck while Scheuber watched Reiss. Ritter did not return Reiss' driver's license and other documentation until after he dealt with the occupants of the blue truck.

After Ritter finished with that truck, he returned his attention to Reiss. Ritter asked him to take a field sobriety test. After Reiss failed the test, Ritter arrested him for DUI. The State formally charged Reiss with felony DUI in violation of K.S.A.2007 Supp. 8–1567.

Reiss filed a pretrial motion to suppress the DUI evidence. The district court denied the motion, noting the unique circumstances of the case and the potential for danger to Ritter. The court ruled Ritter's initial direction for Reiss to return to the truck was not a seizure.

The court further concluded Ritter acted lawfully to establish Reiss' identity. Because Ritter developed reasonable suspicion to investigate Reiss for DUI during this exchange, the court held that the later investigation, i.e., his further questioning and the field sobriety test, was lawful.

After a jury convicted Reiss of DUI, the court sentenced him to 6 months in jail and imposed a fine of $2,500. A Court of Appeals panel ultimately rejected Reiss' appeal. It first disagreed with the district court, concluding Reiss was seized without reasonable suspicion the moment he complied with Ritter's “order” to return to his truck. State v. Reiss, 45 Kan.App.2d 85, 88, 244 P.3d 693 (2010).

The panel noted, however, public and officer safety concerns can justify a brief detention without reasonable suspicion. The panel analogized situations where the United States Supreme Court has held that the Fourth Amendment permits brief, suspicionless detentions.

Specifically, the panel noted that passengers in an automobile during a traffic stop and occupants of a residence being lawfully searched may both be briefly detained in the interest of officer safety without any suspicion of their criminal wrongdoing. So the panel held Ritter acted reasonably to protect himself and officer safety concerns outweighed Reiss' liberty interest. 45 Kan.App.2d at 88–91, 244 P.3d 693. The panel further held that Ritter's “asking for identification in this circumstance was itself only a minimal intrusion.” 45 Kan.App.2d at 92, 244 P.3d 693. Accordingly, the panel affirmed the district court's denial of evidence suppression, albeit for somewhat different reasons.

We granted Reiss' petition for review, accepting jurisdiction under K.S.A. 60–2101(b). More facts will be added as necessary to the analysis.


Issue: The district court erred by denying Reiss' motion to suppress evidence because Ritter eventually seized Reiss without reasonable suspicion.

Reiss does not dispute the propriety of the initial stop. He instead contends he was seized because Ritter's ordering him to return to his truck qualified as a show of authority to which he submitted. Reiss further contends that because he was detained without reasonable suspicion of any criminal activity at any time, the seizure was unlawful. And all evidence later obtained therefore must be excluded as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (196...

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