State v. Wray
| Decision Date | 22 June 2012 |
| Docket Number | No. 105,877.,105,877. |
| Citation | 279 P.3d 739 |
| Parties | STATE of Kansas, Appellee, v. Jerry J. WRAY, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Rooks District Court; Thomas L. Toepfer, Judge.
Michael S. Holland II, of Holland and Holland, of Russell, for appellant.
Edward C. Hageman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
Jerry J. Wray appeals the denial of his motion to suppress drug evidence seized during a traffic stop. We affirm.
The State of Kansas charged Wray with possession of hydrocodone, possession of marijuana, possession of drug paraphernalia (“Zig-zag” rolling papers, a pipe, and a seed remover), and failure to use a seat belt. Trooper Steven C. Harvey, a 31–year veteran of the Kansas Highway Patrol, testified at the preliminary hearing and provided the evidence the district court considered in deciding the suppression motion.
On July 28, 2008, Trooper Harvey was using radar to detect speeders. A Ford Explorer traveling at 69 miles-per-hour passed by in a 65 mile-per-hour zone. The vehicle also had a loud exhaust, so Trooper Harvey decided to stop the vehicle.
When the trooper activated his emergency lights, he noticed the driver light a cigarette. He testified that this indicated “an alcohol involvement or some other illegal substance because they light up so you can't smell it on their breath.” Trooper Harvey said his opinion was based on his training and 31 years of experience.
As the Explorer came to a stop, Trooper Harvey noticed the passenger “moving things around in the front of the vehicle.” It appeared to the trooper that the passenger “was hiding something or putting something away.” Believing “the threat was probably on my right front side,” Trooper Harvey approached the passenger side window.
Trooper Harvey next noticed that “[b]oth occupants seemed awfully nervous ... for just a traffic violation.” The trooper asked the driver, Jason Winters, who owned the Explorer, for his driver's license and registration. Winters visibly shook as he handed over the documents. Realizing that neither occupant was wearing a seat belt, the trooper also asked the passenger, Wray, for identification. Wray did not have identification but told the trooper his name.
The occupants' nervousness reinforced Trooper's Harvey's suspicion that they were using alcohol or drugs. The trooper asked Winters if there was alcohol in the Explorer, and he indicated there was. The trooper walked around to Winter's side of the vehicle and asked if he could look at the alcohol. Winters gave permission and also agreed when Trooper Harvey asked to open the rear driver's side door.
In the backseat Trooper Harvey found a six-pack container with three unopened bottles of beer. The bottles were “cold and sweating,” and because there was no cooler present, the trooper suspected they were recently purchased. This suggested in turn that “there were three [bottles] missing,” and the trooper was interested in finding them in the vehicle.
Trooper Harvey, however, noticed Winters and Wray looking at each other like they were “trying to tell each other something.” The trooper also noticed that the “nervousness had increased in them.” Based once again on his training and experience, Trooper Harvey testified, “[W]hat occurs after that point, sometimes there's an officer attack or there's a weapon involved.” The trooper decided to “make sure I didn't have any weapons on the occupants before I went any further.”
Trooper Harvey asked Winters if he had a weapon, and Winters said he did. Trooper Harvey removed Winters from the Explorer and took a “lock-blade knife” from his pocket. The trooper then asked Wray if he had a weapon, and Wray said he did.
Trooper Harvey had Winters return to the driver's seat, and as he walked to the passenger side, Wray now said he did not have a weapon. Trooper Harvey decided to frisk Wray because he “had already indicated he did have a weapon” and because Wray's movements earlier in the stop were consistent with hiding a weapon. Trooper Harvey removed Wray from the Explorer, conducted a pat-down search, and took a knife from Wray's front pants pocket.
During the pat-down search, Trooper Harvey also felt what he thought was a pipe in the same pocket as the knife. The trooper described the discovery of the pipe:
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Later on the trooper elaborated, In fact, Trooper Harvey testified that, because of its length, he believed the pipe was one typically used to smoke illegal substances.
Trooper Harvey searched Wray's pocket and removed what he thought was the item, but was actually two items: a rolled up bag of marijuana and a plastic container with two pills inside. The trooper testified the items “felt like a pipe” because they “just happened to be placed” side-by-side. Trooper Harvey then looked in the Explorer and saw “the rest of the stuff on the right front seat where [Wray] was sitting and identified what appeared to be marijuana and the purple pipe ... and the orange rolling papers.” As a result, Trooper Harvey arrested Wray. Forensic testing later revealed the pills in the plastic container were hydrocodone, the bags contained marijuana, and the pipe and seed remover had traces of marijuana.
After the preliminary hearing, Wray moved to suppress the evidence seized from his person and from the Explorer. The suppression motion was decided by a different judge, Thomas L. Toepfer, based on the transcript of the preliminary hearing. The district court filed an order denying the motion to suppress.
The district court found Trooper Harvey had reasonable suspicion to stop the Explorer, reasonable suspicion to ask Winters if there was alcohol in the Explorer, and that Winters “consented to a search of the vehicle for the alcohol.” Noting that “[n]one of this appeared to have taken very much time,” the district court concluded “the detention to that point was reasonable under the circumstances, if not consented to by the driver, who owned the [Explorer].”
The district court then analyzed the pat-down search of Wray. The court found the “ ‘pipe’ ... had all the earmarks of a pipe, which is commonly used for both legitimate and illegitimate purposes .” Based on this and the other evidence, the district court concluded Trooper Harvey had “reasonable suspicion—more than a hunch—that the second object in the pocket was a drug pipe subject to further examination and confiscation.”
Following the suppression ruling, the parties next submitted the matter for trial on stipulated facts. Wray preserved an objection “to any and all evidence contained in the following stipulation of fact which would have been suppressed had the ... motion to suppress been granted.” Among the facts to which Wray stipulated was “Trooper Harvey asked for consent to search and Winter consented.” The parties also stipulated to the following:
The district court found Wray guilty as charged, and Wray appeals.
Citing the Fourth Amendment to the United States Constitution, Wray contends Trooper Harvey impermissibly “continued” his detention past the point where “the initial justification for the traffic stop had been satisfied and completed.” Wray denies Trooper Harvey “possessed objective facts which established reasonable suspicion” justifying the allegedly continued detention. The State responds that Trooper Harvey could question Winters and Wray on matters unrelated to the traffic stop.
Generally,
State v. Morlock, 289 Kan. 980, Syl. ¶ 1, 218 P.3d 801 (2009).
In the present case, because the district court decided the suppression motion based on the transcript of the preliminary hearing at which the facts were...
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