Opinion
110,779.
10-03-2014
STATE of Kansas, Appellee, v. Samuel MOULIN, Appellant.
Barry A. Clark, of Clark & Platt, Chtd., of Manhattan, for appellant. Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Barry A. Clark, of Clark & Platt, Chtd., of Manhattan, for appellant.
Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN and ATCHESON, JJ.
MEMORANDUM OPINION
MALONE, C.J.
Samuel Moulin appeals his convictions of one count of possession of marijuana with intent to distribute and two counts of possession of drug paraphernalia. Moulin's only claim on appeal is that the district court erred in denying his motion to suppress the evidence. Specifically, Moulin argues that the law enforcement officer who initially detained him by ordering him back into a car lacked reasonable suspicion that a crime had been committed. We agree with the district court that under the totality of the circumstances the officer had reasonable suspicion that Moulin had committed a crime sufficient to justify an investigatory stop; thus, we affirm the district court's judgment.
At 10:20 p.m. on March 9, 2013—the day of the “Fake Patty's Day” celebration in Manhattan, Kansas—the Riley County Police Department received a call from an anonymous source. According to the evidence, Fake Patty's Day is an annual “drinking event” in Manhattan, and a lot of people come from surrounding communities to participate in the event. The anonymous caller told the police that there was a white car parked in front of a house at 2417 Hobbs Street. According to the anonymous caller, the white car was occupied by four people who were smoking with the windows rolled up, and the car had been parked at the address for “a while.”
After being informed of the call's content by dispatch, Officer Steven Fritzson headed toward the address the caller had reported. When he arrived on Hobbs Street, Fritzson noticed a white car with its windows fogged over parked where the anonymous caller said it would be. Fritzson did not use his sirens or lights as he approached the address, nor did he park directly behind the car. Instead, he drove past the car, made a U-turn, and then stopped in the street, one or two car lengths behind the car. Fritzson later testified that based on the phone call and his observations, he suspected the car's occupants were smoking marijuana because cigarette smokers usually smoke with the windows rolled down to let the smoke out, and marijuana smokers often smoke with the windows rolled up to conceal the odor of marijuana.
Fritzson testified that he got out of his car, walked over to the white car, and knocked on the window. During cross-examination, Fritzson admitted that he wasn't sure if Moulin had exited the car before Fritzson approached it, although he found the suggestion that Moulin had done so doubtful. Moulin contradicted Fritzson's testimony on this point. Moulin testified that he exited the car before Fritzson knocked on the window because he didn't want the officer to smell the odor of marijuana inside the car. Moulin testified that when he met Fritzson on the street near the car, Fritzson ordered him to “[g]et back in the fucking car” in a “loud,” “scary,” and “authoritative” tone of voice. Moulin testified that he obeyed Fritzson's command and got back in the car. Jace Francka, the only other passenger in the car when Fritzson arrived at the scene, corroborated Moulin's testimony that he exited the car and was ordered to get back in the car by Fritzson. Francka testified that he didn't feel free to leave after Fritzson ordered Moulin to return to the car.
At some point, another police vehicle arrived at the scene. Fritzson knocked on the car's window and asked Moulin to roll down the window. In response, Moulin partially opened the door because he didn't have keys to operate the electric windows. Fritzson testified that when Moulin opened the door, he smelled the “overwhelming odor of burnt marijuana.” At that point, Fritzson arrested Moulin and placed him in the squad car. Fritzson then searched the car and discovered marijuana, a scale, and baggies.
The State charged Moulin with one count of possession of marijuana with intent to distribute and two counts of possession of drug paraphernalia. Moulin moved to suppress the evidence Fritzson discovered in the car. Moulin contended that Fritzson didn't have reason to believe a crime had been or was about to be committed when he ordered Moulin to get back into the car, thereby rendering all evidence discovered during the stop inadmissible against Moulin.
The district court held a hearing on the motion to suppress. Fritzson, Moulin, and Francka testified at the hearing. Moulin and Francka testified that two young women had earlier occupied the car with them and the car belonged to one of the women. The women left before Fritzson arrived, which is why Moulin and Francka didn't have the keys when Fritzson knocked on the window. Moulin admitted that he and Francka had been drinking beer and smoking marijuana inside the car before Fritzson arrived. Francka testified that they had smoked marijuana about 20–30 minutes before Fritzson arrived.
After hearing the evidence, the district court resolved the factual dispute about whether Moulin had exited the car in Moulin's favor. Because Moulin and Francka were certain that Moulin got out of the car before Fritzson approached it, and Fritzson was unsure how the encounter began, the district court “assumed it happened as Defendant and Mr. Francka testified.” In addressing the legal issue, the district court found that the encounter was voluntary up to the point Fritzson ordered Moulin to get back into the car, at which point it became an investigatory detention. The district court found that the anonymous report of four individuals sitting for a while in a parked car, smoking with the windows up, combined with Moulin's attempt to meet the officer away from the vehicle, gave Fritzson an objectively reasonable suspicion of criminal activity to justify a brief investigatory detention. The district court further found that once Fritzson arrived at the car and smelled the odor of burnt marijuana, combined with the other circumstances, there was probable cause to search the vehicle. Accordingly, the district court denied Moulin's motion to suppress the evidence found in the car.
The case was later tried to the district court based on stipulated facts, and Moulin renewed his objection to the evidence. The district court found Moulin guilty as charged. The district court sentenced Moulin to a controlling term of 15 months' imprisonment and granted probation for 18 months. Moulin timely appealed the district court's judgment.
On appeal, Moulin argues that the district court erred by denying his motion to suppress the evidence that was collected after he was detained by Fritzson. He contends that at the point Fritzson detained him by ordering him to get back into the car, Fritzson lacked the required reasonable suspicion to perform an investigatory stop. The State responds that the district court correctly denied Moulin's motion to suppress because it found there was reasonable suspicion to justify a brief investigatory detention.
The State bears the burden of proof for a suppression motion. It must prove to the district court the lawfulness of the search and seizure. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009). An appellate court reviews the district court's denial of a motion to suppress using a two-step process. The appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. The ultimate legal conclusion is reviewed using a de novo standard. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).
Here, neither party challenges the district court's factual finding that Moulin exited the car and Fritzson ordered him to get back into the car. Whether Fritzson had reasonable suspicion of criminal activity to detain Moulin at that point is a question of law over which an appellate court has unlimited review. State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007).
We begin by setting forth the applicable constitutional provisions. The Fourth Amendment to the United States Constitution provides: “The right of 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 those provided under the Fourth Amendment to the United States Constitution. State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010).
There are four types of police-citizen encounters: (1) a voluntary or consensual encounter, which is not considered a seizure; (2) an investigatory stop or detention; (3) a public safety stop; and (4) an arrest. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). K.S.A. 22–2402(1) provides that without making an arrest, a law enforcement officer may stop any person in a public place when the officer reasonably suspects the person is committing, has committed, or is about to commit a crime. This statute is a codification of the Fourth Amendment search and seizure principles expressed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Reasonable suspicion means that the officer has a particular and objective basis for suspecting an individual is involved in criminal activity. State v. Thomas, 291 Kan. 676, Syl. ¶ 9, 246 P.3d 678 (2011). The determination of whether reasonable suspicion exists is based on the totality of the circumstances. 291 Kan. 676, Syl. ¶ 1 0. “Reasonable suspicion represents a minimum level of objective justification. It is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence.” 291 Kan. 676, Syl. ¶ 1 1.
In determining whether reasonable suspicion is satisfied, an appellate court gives deference to a law enforcement officer's ability to distinguish between innocent and suspicious circumstances. State v. Walker, 292 Kan. 1, Syl. ¶ 6, 251 P.3d 618 (2011). A mere hunch or unparticularized suspicion of criminal activity is insufficient, however, to amount to the reasonable suspicion that would justify an investigative stop under the Fourth Amendment. 292 Kan. 1, Syl. ¶ 6.
Here, the parties agree that the encounter between Fritzson and Moulin became an investigatory detention when Fritzson commanded Moulin to return to the car. It was at this point that Fritzson was required to have reasonable suspicion of criminal activity in order to justify the detention. The district court noted the following facts contributed to Fritzson's reasonable suspicion to justify the investigatory detention: (1) the anonymous tip about a white car parked in front of a house at 2417 Hobbs Street with four people inside who were smoking with the windows rolled up; (2) Fritzson's confirmation of the information in the caller's tip-namely, the location of the white car at the exact address reported by the caller; and (3) Moulin's strange behavior in exiting the car before Fritzson had a chance to approach the vehicle.
When an investigatory stop is based on information provided to an officer by an anonymous caller, the call alone is seldom sufficient to provide reasonable suspicion to justify an investigatory stop. State v. Slater, 267 Kan. 694, Syl. ¶ 5, 986 P.2d 1038 (1999). In evaluating whether an anonymous tip has provided a sufficient basis to justify an investigatory stop, an appellate court examines three factors: (1) the type of tip or informant involved; (2) the detail given about the observed criminal activity; and (3) whether the officer's personal observations corroborated the information supplied in the tip. 267 Kan. 694, Syl. ¶ 7.
The first factor—the type of tip or informant—weighs against a finding that Fritzson had reasonable suspicion of criminal activity. The type of informant here was a caller who remained truly anonymous; the caller didn't give the police a name or contact information or meet with the officer in person. Though truly anonymous informants can be found to provide reasonable suspicion when an officer is able to corroborate the information provided, they are considered the least reliable type of informant. 267 Kan. at 702.
The second factor—the detail given about the observed criminal activity—also weighs against a finding that Fritzson had reasonable suspicion that Moulin was involved in criminal activity. A tip is more reliable and therefore more likely to support a stop when it is apparent that the informant observed the details personally instead of relying on third-party information. 267 Kan. at 702. Though some details here indicate that the caller may have personally observed the vehicle—such as the caller's knowledge of its color and its exact address—those details could have been obtained at any time and didn't pertain directly to the criminal activity supposedly occurring. Further, the anonymous caller only told dispatch that the occupants of the white car were “smoking” and didn't specify what they were smoking, whether the occupants were smoking marijuana, or how the caller knew the occupants were smoking.
The third factor—whether the officer could personally corroborate the tipster's observations—weighs in favor of finding that Fritzson had reasonable suspicion of criminal activity. An officer may corroborate the tip by observing illegal activity or by finding the person and vehicle at the location as substantially described by the informant. 267 Kan. at 703. Though Fritzson couldn't see signs of the occupants smoking when he passed the car, he did find the white car in front of the exact address the caller described.
Thus, two of the three factors weigh against a finding that Fritzson had reasonable suspicion of criminal activity based on the anonymous tip alone. But the anonymous tip wasn't Fritzson's only reason for believing that Moulin had committed a crime. Here, in addition to the call, Fritzson knew he was investigating smoking in a parked car during a “drinking event” in a college town, even if he wasn't in a high crime area. It was likewise relatively late at night for a car to be parked for an extended period of time in a residential neighborhood with multiple occupants smoking inside of it. Though the time of night and the likelihood of crime in a specific area are not facts that standing alone justify stopping an individual, they are still factors an officer and this court may consider. State v. Cook, 38 Kan.App.2d 20, 22–24, 161 P.3d 779, rev. denied 285 Kan. 1175 (2007); State v. Anguiano, 37 Kan.App.2d 202, 207, 151 P.3d 857 (2007).
Further, even though Fritzson didn't see Moulin and his friends smoking, he was permitted to make reasonable inferences about whether the conduct of the car's occupants was innocent or suspicious based on his experience as an officer. See State v. Johnson, 293 Kan. 959, 966, 270 P.3d 1135 (2012). Fritzson reasonably inferred from the call that the individuals inside the white car were smoking marijuana because he knew that marijuana smokers often keep the windows of the car rolled up while they smoke.
Finally, furtive movements—or movements made by a person to avoid notice or attention, typically because of guilt—made in response to police presence can properly lead an officer to form reasonable suspicion. United States v. McGehee, 672 F.3d 860, 870 (10th Cir.2012) ; State v. Griffin, 31 Kan.App.2d 149, Syl. ¶ 5, 61 P.3d 112, rev. denied 275 Kan. 966 (2003). A person walking away from a car when a police officer approaches it is considered a furtive activity in some jurisdictions because a reasonable officer could conclude from this behavior that the occupant is seeking to avoid police contact in order to elude the investigation or to move the investigation away from the car. See, e.g., Alston v. Com., 40 Va.App. 728, 740–41, 581 S.E.2d 245 (2003) ; People v. Farmer, 267 Cal.App.2d 500, 501–02, 73 Cal.Rptr. 193 (1968).
Here, Moulin exited the car when he saw Fritzson approach the vehicle. In fact, Moulin candidly testified that he exited the car because he didn't want the officer to smell the odor of marijuana inside the car. Moulin argues, however, that the district court erred by relying on his exit from the car to support Fritzson's reasonable suspicion because Fritzson testified that he didn't remember Moulin ever exiting the car. Therefore, Moulin argues, it was unlikely that leaving his car contributed to Fritzson's suspicion. But even if Fritzson didn't remember Moulin exiting the car, it doesn't mean that fact cannot be considered in determining reasonable suspicion. Whether reasonable suspicion exists upon a given set of facts is determined by applying an objective test, and Fritzson's subjective beliefs do not matter. See Thomas, 291 Kan. 676, Syl. ¶ 9.
In summary, though an anonymous tip alone usually doesn't provide reasonable suspicion that a crime has occurred so as to justify an individual's detention, here, Fritzson had other information to support detaining Moulin: it was late at night during a “drinking event” in a college town, Fritzson's observations corroborated the tip he received, Fritzson knew that smoking with the windows up was usually a sign of marijuana use, and Moulin attempted to meet Fritzson away from the car when he saw the officer approach. We agree with the district court that at the time Fritzson ordered Moulin to return to the car, Fritzson had reasonable suspicion to believe that Moulin was involved in criminal activity to justify an investigatory detention. Thus, the district court did not err in denying Moulin's motion to suppress the evidence seized from the car.
Affirmed.