State v. Thompson, No. 94,254.

• Court: United States State Supreme Court of Kansas
• Writing for the Court: Luckert
• Citation: 166 P.3d 1015
• Parties: STATE of Kansas, Appellee, v. Dennis W. THOMPSON, Appellant.
• Decision Date: 07 September 2007
• Docket Number: No. 94,254.

166 P.3d 1015 STATE of Kansas, Appellee,
v.
Dennis W. THOMPSON, Appellant. No. 94,254. Supreme Court of Kansas. September 7, 2007.

[166 P.3d 1020]

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Ty Kaufman, county attorney, argued the cause, and Phill Kline, former attorney general, and Paul J. Morrison, attorney general, were with him on the briefs for appellee.

[166 P.3d 1021]

Colin D. Wood, special assistant attorney general, was on the brief for amicus curiae Kansas Highway Patrol.

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

Dennis W. Thompson seeks to suppress evidence seized during warrantless searches of his vehicle and garage. Thompson consented to both searches after a law enforcement officer stopped Thompson for a traffic infraction, gave Thompson a verbal warning, told Thompson to have a nice day, and then asked whether Thompson would answer a few more questions. Thompson said "yes" to that initial question and, once again, when asked if the officer could search his vehicle. When evidence of drug use was discovered in the vehicle, Thompson was Mirandized and consented to a search of his garage.

Thompson argues evidence obtained during the warrantless searches should be suppressed because he was detained beyond the permissible scope of a traffic stop and did not voluntarily consent to the searches. The State argues the traffic detention ended before a request was made to search the vehicle, a voluntary encounter ensued, and Thompson voluntarily consented to both searches.

The trial court denied Thompson's motion to suppress, finding that Thompson was not seized at the time he consented to the search of his vehicle and, therefore, his "Fourth Amendment rights do not come into play." On direct appeal in State v. Thompson, 36 Kan.App.2d 252, 260-61, 138 P.3d 398 (2006), the Court of Appeals panel reversed, holding in part "that Thompson submitted to a claim of lawful authority rather than consented to a voluntary act."

We granted the State's petition for review in which the State argues the panel's decision is in "direct conflict" with decisions of the Tenth Circuit Court of Appeals and creates "an untenable situation for the uniform administration of justice and provides confusing and inconsistent rules for law enforcement." Also, the State argues the panel's reasoning misapplies decisions of the United States Supreme Court. The amicus curiae Kansas Highway Patrol raises similar concerns.

We conclude that under the totality of circumstances test developed by the United States Supreme Court and previously applied by this court, the traffic stop terminated and Thompson consented to a continuation of the encounter and to the searches. We affirm the trial court and reverse the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

On the night of May 26, 2004, Thompson was stopped within the city limits of McPherson after Officer Weinbrenner saw that Thompson's sport utility vehicle had a faulty headlight. Thompson pulled over in an alley, and the officer pulled in 10 or 15 feet behind him. The emergency lights on the police car remained activated. Weinbrenner asked for Thompson's driver's license and insurance documentation and then ran the license through police dispatch.

Meanwhile, as part of his routine during nighttime traffic stops, Weinbrenner called for a back-up officer to come to the location. Officer Michaels arrived as backup and parked behind Officer Weinbrenner's patrol car. Officer Michaels did not approach Thompson's vehicle or have any direct contact with Thompson. Just before returning Thompson's driver's license to him, Officer Weinbrenner, while standing near the patrol cars and away from Thompson, told Officer Michaels he was going to ask Thompson for consent to search his vehicle. Weinbrenner had information that Thompson had previously been involved with illegal drugs.

Then, Officer Weinbrenner returned Thompson's driver's license, issued a verbal warning, and told Thompson to have a nice day. Weinbrenner told the trial court that he started to walk away after issuing Thompson the warning but then returned within a second or two and asked, "By the way, can I ask you a few questions?"

The trial judge found that there was "no disengagement" before the officer asked for Thompson's consent to additional questioning:

"A careful viewing of the tape reveals that [the officer] did not leave the vicinity of the

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defendant after telling him to have a good day, but rather, immediately after the defendant had stated thank you to [the officer], he asked the defendant if he could ask him some additional questions. I do not believe there can be any question but that [the officer] did not disengage the defendant before asking his follow up questions."

The subsequent questioning resulted in Thompson saying Officer Weinbrenner could search his vehicle. When that search yielded assorted drug paraphernalia and a baggie containing a powder residue, Weinbrenner Mirandized Thompson and placed him under arrest. After indicating that the items came from his garage, Thompson subsequently granted authorities written permission to search his garage where numerous items of manufacturing paraphernalia were found.

The State charged Thompson with seven counts: (1) manufacture of methamphetamine in violation of K.S.A. 65-4159, a severity level 1 drug felony; (2) possession of ephedrine or pseudoephedrine as a precursor in violation of K.S.A. 65-7006(a), a severity level 1 drug felony; (3) possession of lithium metal as a precursor in violation of K.S.A. 65-7006(a), a severity level 1 drug felony; (4) possession of methamphetamine in violation of K.S.A.2006 Supp. 65-4160, a severity level 4 drug felony; (5) possession of drug manufacture paraphernalia in violation of K.S.A. 65-4152(a)(3), a severity level 4 drug felony; (6) possession of marijuana in violation of K.S.A. 65-4162(a)(3), a class A misdemeanor; and (7) possession of drug use paraphernalia in violation of K.S.A. 65-4152(a)(2), a class A misdemeanor.

Before trial, Thompson filed a motion to suppress the evidence recovered from the search of his vehicle and garage, arguing that his consent was not voluntary. After hearing testimony, the trial court denied the motion. In reaching this conclusion, the judge examined the totality of the circumstances and found that Thompson had freely consented to the searches:

"[T]he encounter between Patrolman Weinbrenner and the defendant constituted a consensual encounter from and after the point in the stop that Patrolman Weinbrenner returned the driver[']s license to the defendant and told him to have a good day.

"In reaching this decision, I believe it is important that before asking additional questions: Patrolman Weinbrenner had returned the driver's license and other documentation to the defendant; the defendant was unaware of any other officers at the scene at the time he agreed to answer further questions; at no time during the stop did Patrolman Weinbrenner use coercive force or methods in dealing with the defendant; Patrolman Weinbrenner never displayed his weapon; never touched the defendant or his vehicle; and he never exhibited a tone of voice or attitude to the defendant that might lead a reasonable person to believe he could not leave the scene. Under these circumstances[,] I am satisfied that the defendant was not seized by Patrolman Weinbrenner at the time of the further questioning and therefore the defendant's Fourth Amendment rights do not come into play."

The jury found Thompson guilty of all seven counts as charged. The trial court sentenced him to a controlling term of 158 months' imprisonment on the primary offense of methamphetamine manufacture, a severity level 1 drug felony, and the remaining sentences were ordered to run concurrently.

Thompson appealed, raising several issues. The Court of Appeals panel agreed with Thompson's argument that the trial court erred in denying his motion to suppress evidence; the panel rejected all other arguments. Regarding the suppression issues, the panel concluded that Thompson submitted to a claim of lawful authority and determined that Thompson had no objective reason to believe that he was free to end his conversation with Officer Weinbrenner and drive away, even after the return of his driver's license. 36 Kan.App.2d at 259-61, 138 P.3d 398.

A "paramount" consideration of the Court of Appeals panel was the trial court's express finding that there was "no disengagement" between the officer and Thompson. The

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panel commented that "the undetectability of any transition to a consensual encounter weighs heavily against an objective conclusion that the driver should believe that he or she was free to end the conversation and simply drive away, which is the touchstone of the proper analysis. [Citations omitted.]" 36 Kan.App.2d at 259-60, 138 P.3d 398. In addition to the lack of "disengagement," the panel relied on the following factors in determining the encounter was not consensual: the officer expressed a prestop desire to seek consent to search Thompson's vehicle; the emergency lights of the patrol car remained activated when consent was given; and Thompson testified that he did not feel free to leave. 36 Kan.App.2d at 260, 138 P.3d 398. In conclusion, the panel noted in part:

"At the heart of the Fourth Amendment is a strong requirement of specific justification for any intrusion upon protected personal liberty and security, coupled with a highly developed system of judicial controls to enforce the commands of our Constitution upon the agents of the State. Our court has experienced ever-increasing appeals with nearly identical fact patterns, indicating that there may be a perception in the field that a `bright line rule' merely requires the return of documentation to cleanse additional questioning." 36 Kan. App.2d at 261, 138...