State v. Walker, 99,457.
| Decision Date | 27 February 2009 |
| Docket Number | No. 99,457.,99,457. |
| Citation | 202 P.3d 685 |
| Parties | STATE of Kansas, Appellee, v. Maurice J. WALKER, Appellant. |
| Court | Kansas Court of Appeals |
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant.
Robbin L. Wasson, assistant district attorney, Jerome Gorman, district attorney, and Stephen N. Six, attorney general, for appellee.
Before ELLIOTT, P.J., GREEN and MARQUARDT, JJ.
Maurice J. Walker appeals his convictions of possession of cocaine and possession of marijuana. We affirm.
On September 16, 2006, Kansas City Police Officer Jason Pittman responded to a report of an automobile burglary. The victim did not speak English; however, two children translated the victim's description of the suspect as "a black male wearing a black shirt and black shorts" last seen walking east on Central Avenue.
Traveling east on Central Avenue, Officer Pittman began searching for an individual who matched the suspect's description. Within blocks of the reported burglary, Officer Pittman saw Walker, a black male wearing a black shirt and black shorts, sitting next to a bus stop.
Officer Pittman approached Walker, informed him that he matched the description of a burglary suspect, and requested identification. Walker provided Officer Pittman with a Missouri identification card. Officer Pittman contacted dispatch and requested a records check. Dispatch reported that Walker had an outstanding arrest warrant. Officer Pittman handcuffed Walker and placed him under arrest.
In searching Walker, Officer Pittman discovered a plastic bag with suspected marijuana in it and a plastic bag containing suspected cocaine. Another officer conducted a field test of the two substances and confirmed that the substances were marijuana and cocaine. The automobile burglary victim could not identify Walker as the suspect.
Walker filed a motion to suppress the evidence of the drugs based on the lack of a warrant and the lack of probable cause to search. Walker argued that Officer Pittman contacted dispatch and learned of Walker's outstanding warrant after illegally searching and finding marijuana and cocaine. Walker also claimed that the victim's description of the burglar was "grossly inadequate [for Officer Pittman] to go start talking to people," Walker's counsel argued that Walker did not match the suspect's description because Walker's shirt was actually dark blue, not black, and had a picture of Mickey Mouse on the front.
In overruling Walker's motion, the district court found that Officer Pittman approached an individual who matched the burglary suspect's description, ascertained Walker's identity, and subsequently made a legal arrest based on an outstanding warrant. The district court also found that the search and arrest were constitutional.
At trial, Walker testified that while walking through an alley to get to his cousin's house, a young child placed cocaine in his hand and ran away. Walker decided to continue to his cousin's house where he planned to flush the cocaine down the toilet.
Walker also testified that while waiting at a bus stop, Officer Pittman approached him, asked for identification, then placed him in handcuffs. Officer Pittman began searching Walker's backpack for his identification.
Walker also testified that the automobile burglary victim told a different officer that Walker was not the suspect and the officer told Officer Pittman to release Walker. According to Walker, Officer Pittman told the other officer that he would not release Walker and radioed dispatch for a records check. After being informed of the outstanding warrant, Officer Pittman searched Walker and found the marijuana and cocaine.
A jury convicted Walker of possession of cocaine and possession of marijuana. The district court sentenced Walker to a presumptive sentence of 17 months in prison for his cocaine possession and 12 months' incarceration for his marijuana possession, then converted the sentence to 12 months' probation with 12 months of postrelease supervision.
Walker did not file a motion for a new trial; however, he appeals the district court's denial of his motion to suppress, claiming: (1) Officer Pittman lacked reasonable suspicion to detain him; (2) the search exceeded the investigatory nature of the stop; and (3) the subsequent discovery of his outstanding warrant did not purge the taint of the illegal detention.
When reviewing a district court's decision on a motion to suppress evidence, this court first determines whether substantial competent evidence supports the district court's findings; however, the appellate court does not reweigh the evidence. Next, we review the district court's ultimate legal conclusion respecting the suppression of evidence using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).
Walker argues that Officer Pittman lacked reasonable suspicion to seize him based on an "extremely deficient" physical description. Walker cites K.S.A. 22-2402(1) and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to suggest that absent specific articulable facts, Officer Pittman did not have reasonable suspicion to stop Walker.
K.S.A. 22-2402(1) provides that a law enforcement officer, without making an arrest, "may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect's actions." This provision is a codification of Terry, 392 U.S. at 21, 88 S.Ct. 1868. See City of Topeka v. Grabauskas, 33 Kan.App.2d 210, 220, 99 P.3d 1125 (2004).
There are four types of police-citizen encounters. See State v. Gonzales, 36 Kan. App.2d 446, 451, 141 P.3d 501 (2006). The first is a voluntary encounter, which is not considered a seizure under the United States Constitution's Fourth Amendment. Nickelson v. Kansas Dept. of Revenue, 33 Kan. App.2d 359, 363, 102 P.3d 490 (2004). The second is an investigatory detention or Terry stop, in which an officer may detain any person in a public place if the officer reasonably suspects that the person is committing, has committed, or is about to commit a crime. See Terry, 392 U.S. at 24, 30-31, 88 S.Ct. 1868. During a Terry stop, the officer is allowed to frisk the person seized for weapons if necessary for the officer's personal safety. K.S.A. 22-2402(2). The third type is a public safety stop in which an officer may approach a person to check on his or her welfare when the officer can articulate specific facts indicating a concern for the public's safety. State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992), disapproved in part on other grounds State v. Field, 252 Kan. 657, Syl. ¶ 6, 847 P.2d 1280 (1993). The fourth type of encounter is an arrest. State v. Hill, 281 Kan. 136, 142, 130 P.3d 1 (2006).
An investigatory detention requires that an officer have a reasonable suspicion, based on objective facts, that the suspect is involved in criminal activity. State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985). Reasonable suspicion requires a minimal level of objective justification. State v. Moore, 283 Kan. 344, 354, 154 P.3d 1 (2007) (quoting State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 [1998]). Something more than an unparticularized suspicion or hunch must be articulated. DeMarco, 263 Kan. 727 Syl. ¶ 4, 952 P.2d 1276.
At the suppression hearing, Officer Pittman testified that the victim described the suspect as "a black male wearing a black shirt and black shorts." Within minutes after the crime, Officer Pittman checked the area and found Walker, a black male wearing a midnight blue shirt and black shorts, 2 blocks from the crime scene. The district court concluded that Walker matched the general description of the automobile burglary suspect. Given Walker's proximity in time and location to the crime and that Walker matched the general description of the burglary suspect, the district court's decision is supported by substantial competent evidence.
This court in State v. Anguiano, 37 Kan. App.2d 202, 151 P.3d 857 (2007), discussed reasonable suspicion with regard to a suspect's "semifit" description. In Anguiano, an arrest warrant was issued for a Hispanic suspect who "wore a coat and `dark-type green' colored pants." On St. Patrick's Day 2005, police officers apprehended Anguiano, a Hispanic man who wore grayish-green pants, not dark green pants. In reversing the district court's denial of his motion to suppress, this court stated that "merely being Hispanic and wearing a coat with green pants may have described much of the population of Seward County on St. Patrick's Day, March 17, 2005." 37 Kan.App.2d at 207, 151 P.3d 857. This court determined that the warrant's description was "so nonspecific or generic in nature as to defy reasonable suspicion of criminal activity." 37 Kan.App.2d at 207, 151 P.3d 857.
Although the facts in Anguiano are similar to the instant case, Anguiano is distinguishable. In Anguiano, the sole basis for his detention was a "semifit" general description. Here, the victim gave Officer Pittman the direction the suspect was last seen traveling. The crime occurred only a few minutes prior to Officer Pittman's arrival. And unlike in Anguiano, September 16 is not traditionally a day when individuals dress similarly by wearing dark-colored clothes.
Under the totality of the facts and circumstances in this case, Officer Pittman had a reasonable suspicion based on articulable facts that Walker had just committed the automobile burglary, which allowed him to lawfully request Walker's identification during the investigatory detention. The district court did not err in denying Walker's motion to suppress evidence.
Walker argues that even if Officer Pittman had reasonable suspicion to detain him, Office Pittman lacked...
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