Opinion
No. 106,217.
2012-08-10
STATE of Kansas, Appellee, v. Milo BROWN, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., STANDRIDGE and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Milo Brown was convicted of possession of marijuana and criminal possession of a firearm. On appeal, Brown argues that the police discovered that he had marijuana and a gun in his possession only after they had illegally detained him. As such, Brown argues that the district court should have granted his motion to suppress the marijuana and the gun as the fruits of an unconstitutional seizure. Because we find from the totality of the circumstances—with deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious behavior—that the police had reasonable suspicion to perform an investigatory detention of Brown, we affirm.
Facts
At approximately 11 p.m. on July 12, 2010, Officers Mike Russell and Matthew Little of the Wichita Police Department were riding together in a patrol vehicle when they received a report from dispatch of a man pointing a gun at a woman's face. According to Officer Russell, dispatch stated that the suspect was a 19– to 20–year–old black male who was 5'8'' to 5'9'' tall, had short hair, and was wearing a blue shirt and blue jeans. Although Officer Little's recollection of the dispatcher's description of the suspect was slightly different, both officers testified that the dispatcher described the suspect as a young black male with short or no hair, who was wearing a blue shirt and dark pants. Moreover, both officers testified that dispatch informed them that the suspect was running northbound behind a Mars Mart located at the intersection of 13th and Minneapolis Streets.
Because Officer Russell and Officer Little were already in the area, they quickly arrived at the intersection. Once there, they saw a young black male running northbound between some apartment buildings behind the Mars Mart. Although it was dark outside, Officer Russell could see that the man had short hair, appeared to be in his 20's, and was wearing a dark-colored shirt and jean shorts that hung past his knees. Both officers believed that the person they saw running was the suspect the dispatcher had described. So Officer Little started chasing the man on foot while Officer Russell drove the patrol vehicle down a street parallel to the path the man was running.
As he drove north, Officer Russell could see the man running between buildings. But he could no longer see the man running when he came to the intersection of 15th and Kansas. Ten to fifteen seconds later, however, Officer Russell spotted a black male sitting with a female on a porch at a nearby residence. Officer Russell then drove up to the residence and shined a spotlight at the man. In doing so, Officer Russell noted that the man appeared to be in his 20s, was approximately 5'9'' tall, had short hair, and was wearing a black t-shirt and black jean shorts which hung close to his the ankles.
When Officer Russell got out of the patrol car and walked up to the residence, he noticed that the man, later identified as Brown, was sweating profusely. As Officer Russell came up to the porch, the female who had been sitting near Brown ran away. Although Officer Russell ordered him to place his hands on top of his head, Brown refused to do so. So Officer Russell drew his weapon and again ordered Brown to put his hands on top of his head. Eventually, Officer Russell was able to holster his weapon, and he grabbed Brown's hands. Because Brown was resisting, Officer Russell held Brown's arms behind his back until Officer Little arrived to assist with handcuffing him.
After handcuffing Brown, the officers patted him down for safety purposes. During the pat-down, the officers found a gun and six baggies of marijuana in Brown's possession. Shortly thereafter, another officer arrived and informed Officer Russell that Brown may not be the man they were looking for because he did not match a recently revised description of the suspect received from dispatch. Evidently, the revised description indicated that the suspect was wearing a baby blue or light blue shirt—not a dark blue or black shirt.
The officers then transported Brown to the scene of the alleged aggravated assault so the victim could determine whether he was the person who had pointed a gun at her. Although the victim identified Brown as someone she knew, she told police that he was not the person who had pointed a gun at her. Accordingly, Brown was only charged with possessing the marijuana and the firearm that the officers found during the pat-down following his initial detention.
Brown subsequently filed a motion to suppress, arguing that the officers did not have reasonable suspicion to detain him. As such, Brown argued that the gun and marijuana found in his possession should be suppressed because of an illegal search and seizure. After hearing the testimony of the officers and considering the argument of counsel, the district court denied the motion to suppress. In doing so, the district court found that the officers were justified in detaining Brown because they had reasonable suspicion to believe that he was the person who had pointed a gun in the woman's face.
Brown ultimately waived his right to a jury trial, and the case proceeded to a bench trial based in part on stipulated facts. The issue of the district court's denial of Brown's suppression motion, however, was preserved for appeal. The district court found Brown guilty of both charges and sentenced him to a controlling term of 28 months in prison. Thereafter, Brown filed a timely notice of appeal.
Analysis
Brown contends on appeal that the district court erred in denying his motion to suppress. He argues that his encounter with Officer Russell was not supported by reasonable suspicion that he had committed a crime. Brown further argues that all the evidence obtained as a result of his detention must be suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).. In response, the State contends that the detention and pat-down were appropriate because they were based on the officers' reasonable suspicion that Brown was the person who had pointed a gun in the face of a woman and then fled the scene of the crime on foot.
We review the district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, we first review the district court's factual findings to determine whether substantial competent evidence supports them. We then review the ultimate legal conclusion regarding the suppression of evidence under a de novo standard. See State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678 (2011).
The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Section 15 of the Kansas Constitution Bill of Rights contains similar language and “provides protections identical to that provided under the Fourth Amendment to the United States Constitution.” State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003).
In order to conduct an investigatory detention, a law enforcement officer must have reasonable suspicion that the person is committing, has committed, or is about to commit a crime. See K.SA. 22–2402(1); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998). Moreover, following a lawful detention, an officer may conduct a pat-down of a suspect without consent if the officer “reasonably suspects that [his or her] personal safety requires it.” K.S.A. 22–2402(2); see also State v. Golston, 41 Kan.App.2d 444,. 455,203 P.3d 10 (2009).
In State v. Walker, 292 Kan. 1, Syl. ¶ 6, 251 P.3d 618 (2011), the Kansas Supreme Court held:
“In reviewing an officer's belief of reasonable suspicion, an appellate court determines whether the totality of the circumstances justifies the detention. The court makes its determination with deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances, remembering that reasonable suspicion represents a minimum level of objective justification which is considerably less than proof of wrongdoing by a preponderance of the evidence. However, the officer must be able to articulate more than an inchoate and unparticularized suspicion or hunch of criminal activity.”
See also State v. Thomas, 291 Kan. 676, 688, 246 P.3d 678 (2011) (Reasonable suspicion is a less demanding standard than probable cause and requires a showing that is considerably less than the standard of preponderance of the evidence.).
Here, the officers both testified at the suppression hearing about the initial description dispatch gave of the man who reportedly pointed a gun at a woman and then ran away from the scene. Although their recollections of the description were slightly different, both officers testified that the dispatcher described the suspect as a young black male with short or no hair, who was wearing a blue shirt and dark pants. Furthermore, both officers testified that dispatch informed them that the man had been seen running northbound behind a Mars Mart located at the intersection of 13th and Minneapolis Streets. The officers also testified that they quickly arrived at the intersection, because they were already in the area, and saw a young black male running northbound between some apartment buildings behind the Mars Mart.
Though it was dark outside, Officer Russell testified that he could see that the man was black, had short hair, and was wearing a dark-colored shirt and jean shorts that hung past his knees. Because the officers believed the man running fit the dispatcher's initial description of the suspect, Officer Little chased the man on foot while Officer Russell drove down a street parallel to the man's path so he could keep track of him. When Officer Russell came to the intersection of 15th and Kansas, he could no longer see the man running. But within a few seconds, Officer Russell spotted a young black male sitting with a female on the porch of a nearby residence who he believed to be the man he had seen running. Importantly, this man fit the dispatcher's initial description of the suspect.
Officer Russell testified that as he got closer, he noticed that the man—who was later identified as Brown—was sweating profusely. Because of Brown's race, sex, age, hair, clothes, and the fact that he was sweating profusely, we find that it was reasonable for Officer Russell to suspect that Brown was the person he and Officer Little had been chasing. In addition, we find that it was reasonable for Officer Russell to suspect that Brown was the person who had pointed a gun at a woman's face shortly before the encounter.
Based on our review of the record, we conclude that Officer Russell articulated more than an inchoate or unparticularized hunch of criminal activity. Rather, we conclude that Officer Russell had a reasonable suspicion that Brown had committed a particular crime—aggravated assault with a deadly weapon—which occurred only minutes before. Thus, we hold that the officers were objectively justified in performing an investigatory detention of Brown and in patting him down due to safety concerns.
The result reached here is similar to the result reached by the Kansas Supreme Court in State v. Walker, 292 Kan. 1, 251 P.3d 618 (2011). In Walker, a burglary victim told a police officer that “a black male wearing a black shirt and black shorts” broke out the side window of his truck and removed a CD case, then walked eastbound from the scene of the incident. 292 Kan. at 3. In less than 5 minutes and within 2 blocks from the crime scene, the officer came into contact with the defendant, a black male who was wearing a midnight blue t-shirt and black shorts. In concluding that the officer possessed reasonable suspicion to detain the defendant, the Walker court noted that (1) the officer received information from an identified citizen; (2) the defendant was within 2 blocks of the crime scene; (3) as the victim indicated, the defendant was east of the crime scene and was found within 5 minutes; (4) the defendant matched the race and gender of the suspect; and (5) the defendant was wearing a dark shirt and dark shorts. 292 Kan. at 3, 11–12.
Similarly, in the present case, Brown matched the general description of the suspect that the dispatcher initially gave to the officers. Brown was the same race, gender, and approximate age of the suspect. Likewise, Brown wore clothes which were substantially similar to the clothes the dispatcher initially described the suspect to be wearing. Furthermore, the officers—who were close to the Mars Mart when they received the report of the aggravated assault from the dispatcher—saw a man who they believed matched the description of the suspect running at the location and in the same direction as that given by the dispatcher. Finally, after losing track of the running man, they found Brown sitting on the front porch of a nearby residence sweating profusely.
We, therefore, conclude—based on a totality of the circumstances presented—that the officers adequately articulated a particular and reasonable suspicion justifying their detention and frisking of Brown. As such, we hold that the district court did not err when it denied Brown's motion to suppress.
Affirmed.