State v. Thomas, 98,123.

• Decision Date: 21 January 2011
• Docket Number: No. 98,123.,98,123.
• Parties: STATE of Kansas, Appellee,v.Ruby N. THOMAS, Appellant.
• Court: Kansas Supreme Court

291 Kan. 676

246 P.3d 678

STATE of Kansas, Appellee,

v.Ruby N. THOMAS, Appellant.

No. 98,123.

Supreme Court of Kansas.

Jan. 21, 2011.

[246 P.3d 680 , 291 Kan. 676]

Syllabus by the Court

1. When reviewing a motion to suppress evidence, an appellate court reviews the factual underpinnings of a district court's decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. The State bears the burden to demonstrate that a challenged search or seizure was lawful.

2. If a person's interaction with law enforcement is voluntary, there is no seizure and there is no protection afforded by the Fourth Amendment to the United States Constitution.

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

4. Appellate review of the trial court's determination of whether a reasonable person would feel free to refuse the 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 otherwise terminate the encounter, is reviewed under a de novo standard.

5. 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 the test requires careful scrutiny of all the surrounding circumstances.

6. Because the determination of whether a reasonable person would feel free to terminate an encounter or refuse to answer questions is fact-driven, no list of factors can be exhaustive or exclusive.

7. Law enforcement questioning, by itself, is unlikely to result in a violation of the Fourth Amendment to the United States Constitution. Unless the surrounding conditions are so intimidating as to demonstrate that a reasonable person would have believed he or she was not free to disregard the questions, there has been no intrusion upon the detained person's liberty or privacy that would implicate the Fourth Amendment.

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

9. Reasonable suspicion means a particularized and objective basis for suspecting the person stopped is involved in criminal activity.

10. The determination of a reasonable suspicion is based on the totality of the circumstances and is viewed in terms as understood by those versed in the field of law enforcement.

11. Reasonable suspicion represents a minimum level of objective justification. It is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence.

12. Whether reasonable suspicion exists is a question of law. An appellate court uses a mixed question standard of review, determining whether substantial competent evidence supports the district court findings, while the legal conclusion is reviewed de novo.

13. The question of whether the statutory right to a speedy trial has been violated is a matter of law which is reviewed de novo.

14. A party cannot object to the introduction of evidence on one ground at trial and then assert another ground on appeal.

Carl Folsom, III., of Bell Folsom, P.A., of Lawrence, argued the cause and was on the briefs for appellant.Tony Cruz, assistant county attorney, argued the cause, and Paul Morrison, attorney general, joined him on the briefs for appellee.

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

The district court denied Ruby N. Thomas' motion to suppress, convicted her of possession of cocaine, and determined that her statutory right to a speedy trial was not violated. The Court of Appeals affirmed her conviction, vacated her sentence, and remanded the case to the district court for resentencing on the probation term.

Thomas petitioned for review of three issues, not including the sentencing issue decided by the Court of Appeals. We granted her petition under K.S.A. 20–3018(b).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court err in denying Thomas' motion to suppress? Yes.

2. Was Thomas denied her statutory right to a speedy trial? No.

3. Did the district court violate Thomas' Sixth Amendment rights by admitting a KBI forensic lab report without requiring the forensic examiner to testify? Issue not preserved for appeal.

Accordingly, we reverse the defendant's conviction and remand for new trial.

Facts

On December 19, 2005, Junction City police officer Josh Brown was on patrol and spotted Ruby Thomas walking in the 1300 block of North Webster at 8:48 p.m. Officer Brown possessed a subpoena for L.N., and believing Thomas was L.N., stopped his patrol car. He did not activate his car's emergency lights. Because it was nighttime, his headlights remained illuminated, and the dashboard camera recorded the following events.

Officer Brown exited his car and approached Thomas to ask whether she was L.N. Thomas provided her name but was unable to produce identification. She answered a few basic questions and told Brown she was heading home from the house of a friend named Frank. Based on this information, Brown determined that she was not L.N. He next asked for her permission to fill out a field interview card. After assurances that she was “not in trouble,” Thomas agreed to provide the requested information.

Officer Brown was to testify later that when Thomas provided her address, he was reminded of a prior visit there when Thomas' husband, while intoxicated, had called 911 and complained that Thomas had left their house with a drug dealer. When asked, Thomas was now unable to recall her social security number. Brown spoke into his shoulder radio and later appeared to receive information about Thomas from police dispatch. While filling out the interview card, Brown advised Thomas that she was not under arrest. Twice he informed her that she was free to leave. After Brown completed the card, he and Thomas shook hands and said good-bye. The encounter lasted approximately 5 minutes. Both parties maintained a friendly tone.

Thomas turned her back to Officer Brown and walked away. When she was about 10–15 feet from Brown, he called out, “Hey, Ms. Ruby, can I ask you a couple more questions real quick?” Thomas turned around, walked back to Brown, and agreed to answer further questions.

Officer Brown started this stage by saying, “The more I talk to you, the more I was getting reminded of who you were.” When he asked, Thomas indicated that she was recently at “Frank's house.” Brown inquired whether it was the same “Frank's house” where drugs and drug paraphernalia had recently been confiscated. Thomas acknowledged it was the same house but denied involvement in that incident.

Officer Brown then asked Thomas if she had used drugs or consumed alcohol earlier that day. Thomas admitted to consuming alcohol but denied using drugs. Brown explained that he was asking because the area around Frank's house is known for drugs and because of the earlier 911 incident involving Thomas' husband. Brown continued asking about drugs and drug paraphernalia and whether Thomas and/or her friends were currently using illegal drugs. Thomas again denied that she was using drugs. She further denied that she was in possession of drugs or drug paraphernalia. According to Brown, she did not appear to be under the influence of drugs.

Brown told Thomas to “be honest with me,” and with her standing 2–3 feet away from him, spoke into his shoulder radio. He radioed, “Are you 10–6? 10–4. Can you come up here to North 1300 Webster?” After using his radio, Brown again asked Thomas if she had drugs or paraphernalia on her person. Thomas responded “no” and emptied her pockets. Brown asked to feel inside her pockets for drugs, and Thomas threw her hands into the air. After Brown again told Thomas to “be honest with me,” she admitted that she was in possession of two crack pipes, which she had found on the ground. At no time during this second stage did Brown inform Thomas that she was free to leave.

Brown again used his shoulder radio, this time to specifically inquire about the status of a female officer who could pat down Thomas. He then placed Thomas under arrest. Thomas waived her Miranda warnings and later made incriminating statements about her use of cocaine that evening and in the past.

The State charged Thomas with possession of cocaine found in the crack pipes. She filed a pretrial motion to suppress all evidence obtained during the second stage of the encounter with Officer Brown, alleging it was an investigatory detention unsupported by reasonable suspicion. After an evidentiary hearing, the district court determined that the encounter between Thomas and Brown was voluntary and denied the motion:

“This is a very close case, however, the Court finds that in this particular case and under these circumstances that discovery of the evidence does not violate the Fourth Amendment. The officer told the Defendant on several occasions she had the right to leave, that she was not under arrest. When confronted with the question as to whether or not she had anything in her pockets, she said no. The officer then asked her if he could look in her pockets at which time she threw her hands up and admitted she had two crack pipes in her pocket. ...