State v. Shimer

Decision Date24 September 2021
Docket NumberNo. 122,409,122,409
Citation495 P.3d 414 (Table)
Parties STATE of Kansas, Appellee, v. Kenneth Mann SHIMER, Appellant.
CourtKansas Court of Appeals

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Gardner and Cline, JJ.

MEMORANDUM OPINION

Per Curiam:

Kenneth Mann Shimer appeals his convictions of several drug charges. Following his convictions, Shimer was sentenced to a controlling term of 52 months' imprisonment, a downward durational departure from the presumptive sentence. On appeal, Shimer contends that: (1) the district court erred in failing to suppress evidence—including a large amount of marijuana—found in the rental car he was driving; (2) the State denied his statutory and constitutional right to a speedy trial; and (3) the evidence was insufficient to support his conviction on the charge of conspiracy to possess marijuana with the intent to distribute. For the reasons set forth in this opinion, we affirm Shimer's convictions.

FACTS

This case arises out of a traffic stop of a rental car travelling on I-70 in Geary County on May 15, 2015. The car was being driven by Kenneth Mann Shimer, and Christine Gilbeau-Braum was a passenger. During the stop, a drug-detection dog alerted to the presence of drugs in the car. Based on the canine alert and indication, law enforcement officers searched the rental car and found more than 60 pounds of marijuana sealed in packages located in six suitcases and duffle bags in the trunk. In addition, the officers found a jar containing marijuana in the center console between the driver and the passenger.

The State initially charged Shimer with possession of marijuana with intent to distribute, no drug tax stamp, conspiracy to possess marijuana with the intent to distribute, and possession of marijuana. On May 18, 2015, Shimer posted a $100,000 bond, waived extradition, and returned to Myrtle Beach, South Carolina, with orders to return for the next status hearing set for June 2015.

Prior to trial, Shimer filed multiple motions, including several motions to suppress the evidence found during the search of the rental car he was driving. In the motions to suppress, Shimer claimed: (1) the traffic stop was not supported by reasonable suspicion; (2) the traffic stop was improperly extended beyond its original purpose; and (3) the drug sniff was not reliable. The district court denied Shimer's motions to suppress, and a jury ultimately convicted Shimer on three of the charges. The other charge had been dismissed by the State before submission of the case to the jury.

Motion to Suppress Hearing

The district court held a suppression hearing over the course of two days in August and December 2017. The first portion of the hearing was held on August 3, 2017. At that time, the State presented the testimony of Junction City Police Officer Nicholas Blake. The State also presented the testimony of Edward Van Buren, the dog trainer who trained the canine that performed the drug sniff in the case. Moreover, the defense presented the testimony of Steve Nicely—who is also a dog trainer—and Shimer. Because the hearing could not be completed on that day, it was recessed until December 7, 2017. When the hearing continued, the State recalled Officer Blake as a rebuttal witness.

Officer Blake testified that he was sitting in his patrol vehicle in the median of I-70 at mile marker 305 in Geary County around 10:05 a.m., when he saw a westbound car that he believed was following another car too closely. Officer Blake pulled onto the interstate and headed west to catch up to the car. However, when he got into a better position to see the car, he determined that there was no violation.

According to Officer Blake, he then observed another car—a red Ford Taurus with a Washington license plate—travelling eastbound on the other side of the median. The officer testified that he suspected that the car was driving in the left lane with no reason to do so. As such, Officer Blake turned his patrol vehicle around and pursued the car. By the time the officer caught up with the car, it was travelling in the in the right lane. Officer Blake initiated a traffic stop and identified Shimer as the driver. In addition, the officer identified Gilbeau-Braum as the passenger. Both are residents of South Carolina.

At the suppression hearing, the State introduced a video of the traffic stop into evidence that showed the events leading up to and during the traffic stop. The record reflects that the district court reviewed the video and took it into consideration in ruling on Shimer's motions to suppress. As confirmed by the video, Officer Blake first saw the car driven by Shimer travelling eastbound in the left lane of traffic. There were other vehicles in the area and the officer passed several of them in the approximately two minutes it took for him to catch up to Shimer's car. From the time he turned his patrol vehicle around to head east, Officer Blake travelled about three miles to catch up to the car Shimer was driving.

Officer Blake testified that in order for a passing vehicle at interstate highway speeds to move safely back into the right lane of traffic, it needs to be three or four seconds ahead of the vehicle it is passing. Although Officer Blake was asked at the suppression hearing if he saw Shimer's car pass a semi-truck that can be seen in the video, he could not recall. However, he assumed that it had done so based on his review of the video.

The video confirms that Officer Blake initially contacted Shimer at 10:08 a.m. The officer told Shimer he stopped him because he was driving in the left lane, and he told him that it was for "passing only." In response, Shimer simply said: "Okay." After Officer Blake obtained Shimer's driver's license and vehicle documents—including a rental agreement—he asked Shimer if he would join him in his patrol vehicle while he checked his information. After originally agreeing, Shimer asked if he was being detained, and the officer told him that he was being detained for the traffic violation. At that point, Shimer told the officer that he wanted to remain in the car, and the officer told him that it was fine if he wanted to stay in his own vehicle.

When Officer Blake asked him what brought them this way, Shimer responded that he and Gilbeau-Braum were on their honeymoon. Although the officer did not know it at the time, Shimer's answer was not true. In fact, Shimer would later claim in his pretrial motions—and continues to claim on appeal—that he was not in a romantic relationship with Gilbeau-Braum notwithstanding his statement to the officer during the traffic stop.

According to Officer Blake, both Shimer and Gilbeau-Braum appeared to be "extremely nervous," and he testified that "he could see their pulses pounding in their carotid arteries." Moreover, the officer testified that Gilbeau-Braum's hand was shaking when she handed him the rental agreement. Although Officer Blake acknowledged that it is not unusual for someone to be nervous when pulled over by a law enforcement officer, he testified that he found the nervousness displayed by Shimer and Gilbeau-Braum to be beyond what he normally sees in someone during a traffic stop.

Upon reviewing the rental agreement, Officer Blake discovered that the car had been leased in Seattle, Washington, on May 11, 2015, for a one-way trip to Myrtle Beach, South Carolina. Additionally, the rental agreement showed that the car was to be returned on May 18, 2015. The officer testified that it was common for drug traffickers to use a one-way car rental to transport drugs. Officer Blake also testified that he believed that Shimer was driving the rental car "off route" based on an app on his cellphone that showed the shortest route from Seattle to Myrtle Beach would be to take I-90 and other interstate highways in the northern part of the United States.

After speaking with Shimer, Officer Blake returned to his patrol vehicle and started writing a warning citation for improperly driving in the left lane of a highway in violation of K.SA. 2014 Supp. 8-1522(c). While filling out the paperwork, the officer made a phone call to the El Paso Intelligence Center (EPIC) in an attempt to obtain additional information. According to Officer Blake, EPIC has access to information that is unavailable to local dispatchers—including federal databases, border crossings, and immigration status. The video shows that Officer Blake placed the call to EPIC at 10:11 a.m.

After requesting information from EPIC, Officer Blake placed them on hold and ran Shimer's information through dispatch. He then he got back on the phone with EPIC and waited for a response to his request for information. Before receiving responses from EPIC or dispatch, Officer Blake decided to have his canine partner, Barney, perform a drug sniff on the outside of the rental car while he was waiting. It is important to note that Barney was riding with the officer at the time of the traffic stop and did not have to be called to the scene.

The video shows that Barney began the drug sniff around the outside of the rental car at 10:16 a.m. Barney first ran a sweep around the car and alerted on the front passenger side. He then ran another sweep around the car and once again alerted—and indicated by sitting—by the front passenger side window. The video confirms that the drug sniff was completed less than a minute after it started at 10:16 a.m., which was 8 minutes after Officer Blake had made his initial contact with Shimer and Gilbeau-Braum. Assuming Barney's alert and indication was reliable—which will be addressed in the analysis section of this opinion—the officer had probable cause at that point to search the rental car.

At the suppression hearing, Officer Blake testified that he had been trained and certified as a canine handler for nine years. Likewise, he testified that Barney is...

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