Opinion
No. 109,998.
2015-01-9
STATE of Kansas, Appellee, v. Carlos BRAVO–ZAMORA, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge.Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Carlos Bravo–Zamora was the passenger in a vehicle lawfully stopped for a traffic violation. We find the officer illegally extended the stop after issuing the ticket and releasing the driver when he subsequently told the driver, “Hang on one second.” The illegal detention of the driver and passenger requires the suppression of all evidence seized since the consent given in this case does not purge the taint of the officers' illegal detention. Reversed and remanded with directions.
Facts
On August 10, 2009, Detective James Waller was on patrol for the Merriam Police Department. He was notified by dispatch the Drug Enforcement Agency (DEA) had observed a gold minivan leaving a known drug house and had reason to believe methamphetamine ice was in the minivan. Waller was informed the minivan was traveling southbound on I–35 and was being followed by a DEA or Federal Bureau of Investigation (FBI) vehicle. Waller was instructed to find a traffic violation to support stopping the minivan to search it for drugs. Waller spotted a silver minivan, and because he did not see any other minivans in the area, began following it. Waller observed the minivan crossing the yellow traffic line and initiated a traffic stop.
As Waller approached the minivan, he noticed the driver and passenger were not wearing seatbelts. The driver identified herself as Amy Lawson, and her passenger was identified as Carlos Bravo–Zamora. They had their 1–year–old baby in the backseat. When Waller asked Lawson for her driver's license and proof of insurance, Lawson was only able to produce an expired insurance card. Waller also asked for Bravo–Zamora's driver's license or identification because he was not wearing a seatbelt.
Waller returned to his police vehicle to check for any wants and warrants on Lawson and Bravo–Zamora, to see if Lawson had a valid driver's license, and to call the DEA for additional information on why the DEA agent wanted the minivan pulled over. Waller was on the phone with the DEA agent for approximately 1 to 1–1/2 minutes. The DEA agent told Waller the minivan had left a known drug house in Kansas City, and the DEA wanted Waller to identify the passenger and/or build his own drug case. Waller wrote Lawson a ticket for crossing over the left lane yellow line and for a seatbelt violation. Waller also wrote Bravo–Zamora a ticket for his seatbelt violation.
While Waller was filling out the ticket, he is heard on the traffic stop video stating: “No idea how I'm gonna get a search on that. Hopefully he's got a warrant. Please have a warrant.” After determining Bravo–Zamora did not have a warrant, Waller is heard on the traffic stop video stating: “Hey, I don't have an odor. I don't have anything in the car.... He's got a little FBI record ... I'm not sure if I know how to wiggle this one out. I don't have an odor or anything. I don't see anything in plain view. I don't know how I'm going to wiggle this out.” It is unclear if Waller was talking to the DEA agent or his supervisor. Approximately 10 minutes into the traffic stop, Waller was contacted over the radio by his supervisor and asked, “Are you waiting for a phone call or something?” Waller responded, “No they want me to try to work a consent search.... Could one of you roll this way in case I get a yes.” Waller waited for the backing officer to arrive and then reapproached the minivan with the backing officer on the driver's side. At this point, the stop had been proceeding for about 15 minutes. Waller had Lawson exit the minivan, and he explained she was receiving tickets for crossing the center line, failure to wear a seatbelt, and driving with expired insurance. Waller then returned her identification and asked her to wait with the backing officer while he talked to Bravo–Zamora. Waller then leaned in the driver's side window and explained Bravo–Zamora's ticket for failure to wear a seatbelt.
After talking to Bravo–Zamora, Waller returned to Lawson and asked if she had any questions, and when she said no, Waller told Lawson to drive safe. However, before Lawson could get back into her minivan, the backing officer whispered something in Waller's ear. Waller turned to Lawson and said, “Hang on one second.” After speaking to the backing officer, Waller recontacted Lawson and asked if there was anything illegal such as drugs or weapons in the minivan. When Waller asked for consent to search the minivan, Lawson asked why and if it was because Waller thought she was drunk. Waller chuckled, said no, and again asked for consent to search the minivan. Lawson ultimately gave her consent.
A search of the minivan revealed methamphetamine in a diaper bag. While handcuffed, Bravo–Zamora admitted the methamphetamine was his and stated Lawson had no idea he had drugs in the minivan. Bravo–Zamora was charged with one count of possession of methamphetamine with intent to distribute and one count of possession of more than 1 gram of methamphetamine upon which no Kansas tax has been paid or an official stamp or other indicia affixed thereto. Bravo–Zamora was placed in handcuffs but was not informed he was under arrest. At the preliminary hearing, Waller testified that prior to obtaining Lawson's consent to search the minivan, he did not believe he had any reasonable suspicion to extend the stop.
Before trial, Bravo–Zamora moved to suppress the evidence obtained from the search and all future evidence obtained under the fruit of the poisonous tree doctrine because the officers had illegally detained him and Lawson, making the consent involuntary. The State argued the evidence should not be suppressed because Waller had reasonable suspicion to stop the minivan simply based off the tip from the DEA agent under the fellow-officer rule. The district court denied Bravo–Zamora's motion to suppress relying on Kansas' recognition of the fellow-officer rule. The court found that “the facts known to the federal officers may be imputed to Officer Waller in determining this question of reasonable suspicion or ultimately whether there is probable cause to make an arrest in the case.” Further, the court held that 20 minutes was not an unreasonable extension of the traffic stop under the circumstances to search for drugs and/or attempt to obtain consent. Finally, the court used an objective standard to determine whether a reasonable person would have felt free to leave. The court found that under the circumstances, the language and communications between Waller and Lawson were not contentious, thus, a reasonable person would have felt free to leave and free to deny permission to search the minivan. The district court held the detainment ended when Lawson gave the officers permission to search the minivan. At trial Bravo–Zamora renewed his objections to suppress the evidence obtained as a result of the minivan being searched.
On December 12, 2012, Bravo–Zamora agreed to a bench trial on stipulated facts and was found guilty on all counts. Bravo–Zamora was sentenced to 33 months' imprisonment with 24 months' postrelease supervision. The district court granted Bravo–Zamora a dispositional departure to probation for 18 months.
Analysis
Denial of Motion to Suppress
Bravo–Zamora argues the district court erred when it denied his motion to suppress. Bravo–Zamora claims Waller illegally extended the traffic stop when he told Lawson, “Hang on one second,” and the district court should have granted Bravo–Zamora's motion to suppress because the consent to search the minivan resulted from an illegally extended traffic stop.
In reviewing a district court's denial of a defendant's motion to suppress, appellate courts review the underlying factual findings using a substantial competent evidence standard but the ultimate legal conclusion drawn from those findings under a de novo standard. The appellate courts do not reweigh the evidence or reassess the credibility of the witnesses. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). Substantial evidence refers to legal and relevant evidence a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). The State has the burden of proving a search and seizure was lawful. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
When the trial court has denied a motion to suppress, the moving party must object to the introduction of that evidence at the time it was offered at trial to preserve the issue for appeal. State v. McCaslin, 291 Kan. 697, 726, 245 P.3d 1030 (2011). However, in a bench trial consisting solely of stipulated facts, the lack of contemporaneous objection does not prevent review of the suppression issue. State v. Kelly, 295 Kan. 587, 594, 285 P.3d 1026 (2012); State v. Bogguess, 293 Kan. 743, 746–47, 268 P.3d 481 (2012). “A defendant who is tried solely on stipulated facts timely interposes an objection to the admission of evidence by filing a motion under K.S.A. 22–3216(3) to suppress evidence and, in doing so, satisfies the requirements of K.S.A. 60–404, even if an objection to the evidence is not stated at trial.” Kelly, 295 Kan. 587, Syl. ¶ 1. Bravo–Zamora timely objected to the admission of the evidence at his bench trial on stipulated facts and as such, satisfied the requirements of K.S.A. 60–404.
Was the Traffic Stop Illegally Extended?
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights assures each person's right to be secure in his or her person and property against unreasonable searches and seizures. “The question of whether there is a seizure arises in the context of one of four types of encounters with law enforcement officers: consensual encounters, which are not considered seizures; investigatory detentions pursuant to Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and K.S.A. 22–2402; public safety stops; and arrests.” State v. Thompson, 284 Kan. 763, Syl. ¶ 4, 166 P.3d 1015 (2007), as modified October 17, 2007. Any warrantless search is per se unreasonable unless it falls within one of the recognized exceptions to the search warrant requirement in Kansas. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). A traffic stop is considered a seizure of the individuals in the vehicle even though the purpose of the stop is limited and the resulting detention is quite brief. See Thompson, 284 Kan. 763, Syl. ¶ 6; see also Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2008).
“When it is alleged an investigatory traffic stop has turned into a consensual encounter, potential issues arise regarding the legality of: (1) the initial stop, i.e., whether the law enforcement officer's action was justified at its inception; (2) the detention, i.e., whether the length and scope of the detention were reasonably related in scope to the circumstances which justified the interference in the first place; and (3) the continuation of the encounter beyond the point in time when the purpose of the traffic stop was fulfilled, i.e., whether the continuation was consensual or the officer gained a reasonable and articulable suspicion of illegal activity.” Thompson, 284 Kan. 763, Syl. ¶ 5.
While a traffic infraction is a legitimate basis for law enforcement to initiate a stop, the traffic stop may not exceed the scope or duration necessary to carry out the purpose of the stop. “[T]he United States Supreme Court has emphasized that the seizure must be of short duration if it occurs ‘ “in situations where” ... the stop is justified by suspicion (reasonably grounded, but short of probable cause) that criminal activity is afoot.’ Arizona v. Johnson, 555 U.S. 323, 330, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (quoting Terry, 392 U.S. at 24).” State v. Jones, ––– Kan. ––––, 333 P.3d 886, 894 (2014); Thompson, 284 Kan. 763, Syl. ¶ 7.
During a routine traffic stop, a law enforcement officer may request a driver's license, proof of insurance, and vehicle registration; run a computer check; and issue a citation. United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997). An officer's inquiries or actions unrelated to the justification for the initial traffic stop do not convert the stop into an unlawful seizure so long as they do not measurably extend or prolong the stop. Arizona, 555 U.S. at 333; Jones, 333 P.3d at 894–95.
“If no information raising a reasonable and articulable suspicion of illegal activity is found during the time period necessary to perform the computer check and other tasks incident to a traffic stop, the driver must be allowed to proceed without further delay or questioning unless (1) the encounter between a law enforcement officer and the driver ceases to be a detention, it becomes consensual, and the driver voluntarily consents to additional questioning or (2) during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity.” Thompson, 284 Kan. 763, Syl. ¶ 8.
In the absence of consent, the “officer must be able to articulate more than an ‘inchoate and unparticularized suspicion’ or ‘hunch’ of possible criminal activity.” Jones, 333 P.3d at 895. Even detaining a driver for a few minutes in order for a canine unit to arrive to perform an investigatory sniff can unreasonably extend the detention if the officer did not need additional time to ask exploratory questions or to write a traffic citation. State v. Coleman, 292 Kan. 813, 822, 257 P.3d 320 (2011). In order to find the officer had reasonable suspicion to extend the detainment, the court must be able to find by a preponderance of the evidence that the State has presented at least a minimal level of objective justification which, when examined under the totality of the circumstances, justifies a reasonable suspicion of the presence of illegal drugs or some other serious criminal activity. Jones, 333 P.3d at 896.
“The reviewing court does not ‘pigeonhole’ each factor as to innocent or suspicious appearances, but instead determines whether the totality of the circumstances justifies the detention. [Citation omitted.] The relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but whether a sufficient degree of suspicion attaches to particular types of noncriminal acts. [Citation omitted.] The totality of the circumstances standard precludes a ‘divide-and-conquer analysis' under which factors that are ‘readily susceptible to an innocent explanation [are] entitled to “no weight .’ “ [Citation omitted.] In considering the totality of the circumstances, a reviewing court should employ common sense and the ordinary human experience and should accord reasonable deference to a law enforcement officer's ability to distinguish between innocent and suspicious actions. [Citation omitted.]” Coleman, 292 Kan. at 817–18.
While an appellate court cannot conduct factfinding, it can conduct a de novo review of the totality of the circumstances to determine whether reasonable suspicion existed. Jones, 333 P.3d at 897.
The district court denied Bravo–Zamora's motion to suppress relying on Kansas' recognition of the fellow-officer rule. The court found that “the facts known to the federal officers may be imputed to Waller in determining this question of reasonable suspicion or ultimately whether there is probable cause to make an arrest in the case.” Further, the court held that 20 minutes was not an unreasonable extension of the traffic stop under the circumstances to search for drugs and/or attempt to obtain consent. From the record it is hard to know exactly what the fellow-officer rule is imputing to Waller as the DEA agent stated he thought there might be drugs in a gold minivan, not a silver minivan. The DEA agent had suspicion, or a hunch, but nothing more. Likewise, all Waller had under the fellow officer's rule is the same suspicion or hunch.
In Coleman, a case similar to this case, Deputy Sheriff Matt Tatro pulled over Coleman for a traffic violation (speeding) and determined the vehicle was rented and the rental agreement had expired 2 days earlier; however, Coleman explained he had renewed the registration over the phone which struck Tatro as odd. The record in Coleman reflects Coleman was detained by Tatro for approximately 35 minutes to 1 hour after the initial stop to allow Coleman's parole officer to arrive and search Coleman's vehicle. Cocaine was found. No speeding ticket was issued.
Coleman filed a motion to suppress all seized evidence. The district court and the Kansas Court of Appeals found the specific grounds for detaining Coleman for an investigative search were his status as a parolee, the expired rental agreement, and the reports the drug enforcement unit had “specific knowledge” Coleman was moving cocaine from Wichita to Hutchinson. Coleman, 292 Kan. at 819. The Kansas Supreme found the expired rental agreement, in combination with Coleman's parolee status and reports Coleman was engaged in drug transportation, provided Tatro with a reasonable suspicion of criminal activity, justifying a temporary detention and allowing further investigation. However, the Kansas Supreme Court determined the detention was not lawful because Tatro detained Coleman for 35 minutes to 1 hour solely to wait for the parole officer to arrive. He did not use the time for further investigation. Coleman, 292 Kan. at 820–22.
If, during the time necessary to perform the computer check and other tasks incident to the traffic stop, no information raising a reasonable and articulable suspicion of illegal activity is found, the driver must be allowed to leave unless the encounter becomes consensual. Thompson, 284 Kan. 763, Syl. ¶ 8.
In this case, the only fact Waller had to base reasonable suspicion on was that the DEA saw a gold minivan leaving a known drug house. To help him identify the minivan, Waller was told the minivan would have a DEA or FBI vehicle following it. Lawson's minivan was silver. There is nothing in the record to indicate Waller noticed Lawson's minivan being followed by a DEA or FBI vehicle. The DEA agent only thought there might be drugs; he or she did not know if drugs were actually in the minivan. Waller had no odor and did not see anything in plain view. Under the totality of the circumstances, Waller did not have a reasonable and articulable suspicion that Lawson or Bravo–Zamora were involved in illegal activity to justify an extension of the traffic stop in the absence of consent. Finally, we note Waller extended the normal amount of time to process this traffic stop by speaking with the DEA agent and waiting for the backup officer to arrive before he initially released Lawson and then asked her to “Hang on one second.” “Hang on one second.”
The district court used an objective standard to determine whether a reasonable person would have felt free to leave. The district court found that under the circumstances and given the type of conversation between Waller and Lawson, a reasonable person would have felt free to leave and deny permission to search the minivan. Thus, the district court held that Lawson's consent was voluntary when she gave Waller permission to search the minivan.
Voluntary encounters are not considered seizures and do not trigger the protections of the Fourth Amendment. “[A] voluntary encounter is not transformed into a seizure simply because an individual responds to questions or provides identification when approached and questioned by an officer.” State v. Williams, 297 Kan. 370, 376, 300 P.3d 1072 (2013). An encounter between law enforcement and an individual will be deemed consensual “ ‘ “if, under the totality of the circumstances, the law enforcement officer's conduct conveys to a reasonable person that he or she [is] free to refuse the requests or otherwise end the encounter.’ “ “ State v. Reiss, 299 Kan. 291, 297–98, 326 P.3d 367 (2014). The court may consider a number of factors in evaluating whether an encounter is voluntary; no single factor is dispositive. Reiss, 299 Kan. at 297; State v. Murphy, 296 Kan. 490, 493, 293 P.3d 703 (2013).
“Appellate review of a trial court's determination of whether a reasonable person would feel free to refuse the law enforcement 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 terminate the encounter, is reviewed under a de novo standard.” Thompson, 284 Kan. at 776.
The State has the burden of establishing the scope of the consent and that the defendant's consent to search was freely and voluntarily given. Thompson, 284 Kan. at 776; State v. Moore, 283 Kan. 344, 360, 154 P.3d 1 (2007). “[V]oluntariness of consent to search is a question of fact to be determined from all the circumstances.” Moore, 283 Kan. at 360. In Kansas, it is possible for there to be termination of the initial detention followed by a successive second voluntary encounter. Thompson, 284 Kan. at 796. This concept was used in State v. Reason, 263 Kan. 405, 951 P.2d 538 (1997). In Reason, two police officers approached two individuals sleeping inside a vehicle with open doors and parked in a public lot. After wakening Reason to assure he was not hurt or ill, the officers requested identification. The court found the initial encounter voluntary. The encounter became investigatory when Reason informed the officers he did not have any identification as his wallet had been stolen. The officers ran a check on the vehicle's identification number, which confirmed Reason was the owner. While one officer was still checking the passenger's identification, the other officer informed Reason he was free to go. The court concluded that at this point, the encounter again became consensual. The officer asked Reason for permission to search the vehicle, Reason consented, and the officers found contraband. The court found the consent was voluntary. Reason, 263 Kan. at 415.
When determining whether the traffic stop has transitioned to a voluntary encounter,
“[A] law enforcement officer's retention of a driver's documents is significant because it indicates that a reasonable person, as a general rule, would not feel free to terminate the encounter. On the other hand, the return of a driver's license is not a bright line indicating that the encounter is no longer a seizure. Even with the return of the driver's license, an encounter can remain a detention when, under the totality of the circumstances, a reasonable person would not feel free to decline law enforcement requests or end the encounter.” Thompson, 284 Kan. 763, Syl. ¶ 18.
“An unconstitutional seizure may infect or taint the consent to search as well as any fruits of the encounter if the nature of the seizure renders the consent to search involuntary. Conversely, a voluntary consent to search can purge the primary taint of an illegal seizure.” Thompson, 284 Kan. 763, Syl. ¶ 14. However, the Kansas Supreme Court held in State v. Smith, 286 Kan. 402, 419–20, 184 P.3d 890 (2008), that law enforcement officers violate the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights by expanding the scope of a traffic stop to include a search not related to the purpose of the stop, even if the officers obtain consent from the detainee for the search. In addition, in State v. Hayes, 35 Kan.App.2d 616, Syl. ¶ 12, 133 P.3d 146 (2006), the Kansas Court of Appeals held:
“A driver's consent to search did not purge the taint of an illegal detention where (1) the officer sought consent to search the driver's vehicle during an illegal detention; (2) no intervening circumstances separated the consent from the illegality; and (3) the officer requested that driver exit the vehicle and sought consent to search the vehicle based on a nonparticularized hunch of criminal activity.”
After talking to Bravo–Zamora regarding his seatbelt violation, Waller returned to Lawson and asked if she had any questions. When she said no, Waller told Lawson to drive safe, a statement authorizing her to leave. However, before Lawson could get back into her minivan, the backing officer whispered something in Waller's ear. Waller turned to Lawson and said, “Hang on one second”—a statement telling her not to leave. After speaking to the backing officer, Waller recontacted Lawson and asked if there was anything illegal such as drugs or weapons in the minivan. A reasonable person would not have felt free to get in their vehicle and leave when, while standing on the side of a busy road outside of their vehicle, an officer has asserted his authority and told her to “Hang on one second.” The continued detention of Lawson and Bravo–Zamora was not consensual. The officer failed to articulate one reason to request Lawson to “Hang on one second,” to extend the traffic stop. The traffic stop was completed and Waller had acknowledged on the recording he had nothing to justify extending the stop. The district court erred in finding a reasonable person would have felt free to terminate the encounter with the law enforcement officers by ignoring the command to “Hang on one second.”
Bravo–Zamora's Standing
For the first time on appeal, the State, relying on State v. Gilbert, 292 Kan. 428, 435–36, 254 P.3d 1271 (2011), argues that while Bravo–Zamora has a right to challenge the validity of the traffic stop, he does not have a right to contest the search of Lawson's minivan because a “defendant's Fourth Amendment rights are not implicated during the search of an automobile he or she neither owns nor claims a possessory interest in, even if the evidence obtained during the search is used against the defendant later.”
“Standing is a component of subject matter jurisdiction, which may be raised for the first time on appeal. [Citation omitted.] Whether standing exists is a question of law subject to unlimited review. [Citation omitted.]” Gilbert, 292 Kan. at 431–32.
Bravo–Zamora argues that there are three problems with the State's argument he does not have standing to challenge the continued detention. First, the State has cited no part of the record for the proposition that Bravo–Zamora did not have an ownership or possessory interest in the minivan; second, Gilbert is distinguishable from the facts in this case because the search was the fruit of Bravo–Zamora's illegally extended detention; and finally, unlike in Gilbert, Bravo–Zamora claimed ownership in the contents of the minivan—the methamphetamine.
The Kansas Supreme Court addressed a passenger's standing to challenge the validity of a vehicle search in State v. Epperson, 237 Kan. 707, 716, 703 P.2d 761 (1985). In Epperson, the Kansas Supreme Court relied on State v. Worrell, 233 Kan. 968, Syl. ¶ 1,666 P.2d 703 (1983), in which the Kansas Supreme Court held:
“An illegal search can only violate the rights of those who have a legitimate expectation of privacy in the invaded place. The basic test to determine whether or not a person present on the premises at the time of the search has standing to challenge the validity of the search is not whether that person had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.”
The Supreme Court found that one who is neither an owner, nor in possession of an automobile, lacks standing to invoke the constitutional guarantee of immunity from unreasonable search and seizure. Epperson, 237 Kan. at 716. “ ‘To establish a sufficient interest, a movant must claim either to have a proprietary or possessory interest in the premises searched, or to have owned or possessed the seized property.” ‘ (Emphasis added.) Epperson, 237 Kan. at 716.
The Kansas Supreme Court recently reaffirmed this prior caselaw in Gilbert, 292 Kan. 428. In Gilbert, Brian A. Gilbert was the passenger in a parked car he did not own when law enforcement officers saw him in the vehicle, took him into custody on an outstanding warrant for his arrest, and the car was searched incident to his arrest. Inside the car, drugs and drug paraphernalia were discovered. The State conceded the search was unconstitutional; however, the dispositive issue became whether a passenger who does not own or have a possessory interest in the vehicle may challenge the vehicle's search incident to the passenger's arrest Gilbert, 292 Kan. at 428–29. The Kansas Supreme Court found that Gilbert lacked standing to challenge the vehicle search and that the decision was controlled by Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (person aggrieved by an illegal search and seizure only through introduction of evidence obtained by search of third-person's premises has not had his or her Fourth Amendment rights infringed). Gilbert, 292 Kan. at 428–29. In Gilbert, the Kansas Supreme Court spent a significant amount of time distinguishing the case from Brendlin, 551 U.S. 249.
“Under Brendlin, a passenger's personal Fourth Amendment rights are implicated when the vehicle he or she is occupying is stopped, and this enables the passenger to challenge the constitutionality of that stop. In contrast, a defendant's Fourth Amendment rights are not implicated during the search of an automobile he or she neither owns nor claims a possessory interest in, even if the evidence obtained during the search is used against the defendant later.” Gilbert, 292 Kan. at 435.
The distinction appears to be that if a passenger is detained as a result of an illegal detention, then he or she has standing to challenge the seizure; however, he does not have standing to challenge a search of a vehicle if the passenger does not claim a possessory or property interest in the vehicle or the contents that were searched.
Bravo–Zamora did not own nor did he claim a possessory interest in the minivan; however, he did multiple times claim a possessory interest in the seized methamphetamine ice. In an unpublished opinion, the Kansas Court of Appeals looked at both Gilbert and Epperson to see whether a passenger could establish standing by claiming ownership in the item seized. State v. Hays, No. 106,374, 2012 WL 6061556 (Kan.App.2012) (unpublished opinion). In Hays, the court found that the passenger's claiming of ownership in a lockbox searched was sufficient to give him standing to challenge the vehicle's search. Hays, 2012 WL 6061556, at *4. However, the major difference between Hays and Bravo–Zamora is that Hays claimed ownership in the box before it was searched. Hays, 2012 WL 6061556, at *3. In Epperson, the Kansas Supreme Court considered whether it would have impacted Epperson's standing if Epperson had testified on the record that the cocaine was his; however, ultimately, Epperson did not testify so the court found he had failed to establish ownership of the narcotics and it did not impact his standing. Epperson, 237 Kan. at 717. This analysis implies that if Epperson had claimed the narcotics then he would have established standing to challenge the search. In this case, Bravo–Zamora did assert his ownership of the methamphetamines after the search was completed. Thus, using the analysis in Epperson, Bravo–Zamora has standing to challenge the search despite being a passenger.
Bravo–Zamora's challenge to the search is a byproduct of his illegal detention; thus, the facts in this case more closely resemble the facts in Epperson than in Gilbert. In Epperson, the Supreme Court did not end its analysis with ownership being determinative of standing. Unlike in Gilbert, where the defendant was arrested pursuant to a valid warrant for his arrest, in Epperson, our Supreme Court found the initial stop and seizure of the driver and the passenger to be illegal. Then the Supreme Court took the analysis a step further by looking at whether the evidence should be excluded by using the fruit of the poisonous tree doctrine:
“We have held, and the rule is generally, that a passenger has no standing to challenge the search of a car which does not belong to him. Here, however, the initial stop and seizure of both [the driver and the passenger] was illegal, and we have so held. The search of the car followed quickly upon the heels of that illegal seizure. It would not seem logical to permit the evidence to be used as against the former passenger and not as against the former driver....
“... [The driver] has the right to challenge the search as owner of the car. Epperson's right to challenge the search stems not from the fact that he was previously a passenger in the motor vehicle, but because he is a person who was unlawfully stopped and seized, and because the search followed as a consequence thereof.” Epperson, 237 Kan. at 717–18.
While the initial traffic stop of Lawson and Bravo–Zamora was not an illegal seizure, when the officers illegally detained Lawson and Bravo–Zamora following the conclusion of the traffic stop by having them “Hang on one second,” without any reasonable suspicion of criminal activity, Bravo–Zamora and Lawson were illegally seized. Epperson's rights to challenge the search stemmed from his illegal seizure; likewise, Bravo–Zamora's rights to challenge the search flows from his illegal seizure.
Additionally, we note our analysis is supported by another panel's decision in State v. Wilburn, ––– Kan.App.2d ––––, 332 P.3d 199 (2014), petition for rev. filed September 15, 2014, where the facts are extremely complex and unique. That panel applied our Supreme Court's analysis in Epperson and the 10th Circuit's analysis in United States v. Olivares–Rangel, 458 F.3d 1104, 1118 (10th Cir.2006). “[A] defendant's standing to challenge the search of a vehicle is not always determinative of the search's admissibility.” Wilburn, 332 P.3d at 210. The court ultimately held that the evidence seized during the search of the vehicle was fruit of defendant's illegal detention and was inadmissible, notwithstanding the defendant's lack of standing to challenge the search of the vehicle. Wilburn, 332 P.3d at 211. Thus, Bravo–Zamora has standing to challenge the search based on his illegal detention.
Evidence Suppressed
We have previously found the consent to search was obtained during an illegal detention. Therefore, all evidence obtained must be suppressed under the fruit of the poisonous tree doctrine.
“The fruit of the poisonous tree doctrine bars the admission of evidence directly seized during an illegal search as well as evidence obtained indirectly as a result of information learned or leads obtained from the illegal search. Although not all evidence is fruit of the poisonous tree simply because it would not have become known without the illegal actions of the police, the doctrine bars any evidence that becomes known through exploitation of the illegality.” State v. Poulton, 286 Kan. 1, 5–6, 179 P.3d 1145 (2008).
The State has failed to prove the seizure and subsequent search of the minivan were lawful. The district court erred when it denied Bravo–Zamora's motion to suppress.
The Exclusionary Rule
The exclusionary rule is a judicially created remedy which exists to prevent the use of unconstitutionally obtained evidence in a criminal proceeding and applies when such suppression would act to deter illegal conduct by the State. State v. Karson, 297 Kan. 634, 639, 304 P.3d 317 (2013). “An important part of the exclusionary rule is the ‘fruit of the poisonous tree’ doctrine, which ‘extend[s] the scope of the exclusionary rule to bar not only evidence directly seized, but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search.’ State v. Deffenbaugh, 216 Kan. 593, 598, 533 P.2d 1328 (1975).” Wilburn, 332 P.3d at 209. In Epperson, the court found that because “[i]t is clear that all evidence extracted from the persons of the defendants—both tangible and intangible—followed the unlawful stop. It was properly suppressed as fruit of the poisonous tree.” Epperson, 237 Kan. at 718–19.
Likewise, the search of Lawson's minivan was a result of the illegal seizure of Lawson and Bravo–Zamora. Thus, the evidence obtained as a result of the search should be excluded as fruit of the poisonous tree. See Poulton, 286 Kan. at 5–6.
Conclusion
Bravo–Zamora suffered the same illegal seizure as the driver of the minivan when the officer, after completing the traffic stop, told the driver to “Hang on one second.” Through his command, the officer illegally extended the traffic stop without any reasonable or articulate suspicion of illegal activity. We find everything that happened after that command must be suppressed as the consent to search was the result of a illegal extension of the stop. All evidence obtained from the search is suppressed. We reverse and remand for the district court to grant Bravo–Zamora's motion to suppress.
Reversed and remanded with instructions.