Opinion
No. 108,231.
2012-12-14
STATE of Kansas, Appellant, v. Kennedy OJIAKA, Appellee.
Appeal from Johnson District Court; Stephen R. Tatum, Judge. Steven J. Obermeier and Sarah F. Hill, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant. George J. Thomas, of Phillips & Thomas LLC, of Prairie Village, for appellee.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Steven J. Obermeier and Sarah F. Hill, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant. George J. Thomas, of Phillips & Thomas LLC, of Prairie Village, for appellee.
Before PIERRON, P.J., MALONE, C.J., and BUKATY S.J.
MEMORANDUM OPINION
PER CURIAM.
The State of Kansas appeals the district court's decision granting a motion to suppress evidence of drugs found during a traffic stop involving Kennedy Ojiaka. The State argues the court erred in finding the police officer measurably extended the traffic stop to allow a drug dog sniff of Ojiaka's vehicle. We reverse and remand for further proceedings.
The facts in this case are for the most part undisputed and unchallenged by Ojiaka. On March 1, 2011, at approximately 4 p.m., Olathe police officer Travis Shoemaker stopped a vehicle for having illegal window tinting. Ojiaka was the driver and Randy Donnell was the passenger. Officer Shoemaker informed Ojiaka that he had stopped him because he believed the vehicle's tinted windows were darker than the minimum allowance of 35% and that he could not even see through any of the windows. Officer Shoemaker requested identification from both Ojiaka and Donnell and then returned to his patrol car to run a records check. Officer Shoemaker testified he returned to the patrol car approximately 1 minute and 53 seconds after the vehicle stop.
The records check noted a criminal history of drug sale activity for both Ojiaka and Donnell. Officer Shoemaker testified that he immediately called for a K–9 unit to conduct a drug dog sniff. Officer Shoemaker's window tint meter registered a 4.2% visibility which violated Olathe's ordinance of a minimum allowance of 35% visibility. Officer Shoemaker testified that Ojiaka initiated more conversation about the window tint and where the job had been performed. Shoemaker told Ojiaka he should check into getting his money back. Officer Shoemaker returned to his patrol unit approximately 7 minutes and 20 seconds after the stop.
Officer Shoemaker began writing a citation to Ojiaka for illegal window tinting. The K–9 unit arrived at approximately 10 minutes after the stop. Officer Shoemaker testified he was finishing writing the citation, but had not had the opportunity to return to the vehicle, return the identification documents, or go over the citation with Ojiaka. Officer Brian Little, the K–9 handler, testified that when he arrived at the scene, he told Officer Shoemaker that Ojiaka and Donnell needed to get out of the vehicle for the safety of both the officers and the occupants. Officer Shoemaker asked Ojiaka to get out of his vehicle at approximately 10 minutes and 11 seconds after the stop. Both Ojiaka and Donnell consented to a pat-down search.
Officer Little testified about the procedure for the drug dog sniff and how the dog alerts to a suspicious drug odor in the vehicle. On the first pass around Ojiaka's vehicle, the dog alerted to a suspicious odor. Officer Shoemaker testified that at 12 minutes and 4 seconds after the vehicle stop, Officer Little notified him that the drug dog had a “hit” on the vehicle. Once inside the vehicle, officers could smell the odor of burned marijuana. The officers found a bag of marijuana beneath the interior of the center console of the vehicle, a set of scales in the center console, numerous plastic baggies, other small amounts of marijuana, and illegal narcotic drugs in the pocket of a coat in the trunk.
The State charged Ojiaka with sale of marijuana, possession of drug paraphernalia, possession of a controlled substance, and possession of oxycodone. Ojiaka filed a motion to suppress. The district court heard testimony from Officers Shoemaker and Little and then granted Ojiaka's motion. The court found that Officer Shoemaker had no reason to order the drug dog sniff of the vehicle other than Ojiaka's and Donnell's prior drug offenses—no other possible suspicion such as drug smells, plain view, or even suspicion actions. The learned court concluded:
“Though the traffic stop lasted for a reasonable amount of time according to Montes , Officer Shoemaker clearly abandoned the purpose of the traffic stop in order to facilitate a drug dog sniff of Defendant's vehicle. Had Officer Shoemaker diligently pursued the purpose of the traffic stop, he would have given the citation to Defendant, might have explained the citation to Defendant, and let Defendant go on his way. However, by abandoning the citation, having Defendant exit his vehicle, and asking questions about Defendant's criminal history, Officer Shoemaker shifted the focus of the detention from a traffic stop for illegal window tint to a seizure for the purpose of conducting a drug dog sniff. This is not within the scope of actions a police officer may take during the course of a normal traffic stop. See Smith, 286 Kan. at 410.
“The traffic stop was measurably extended because Officer Shoemaker did not diligently pursue the purpose of the traffic stop, and instead abandoned completing the traffic citation to accommodate the drug dog sniff. Because Officer Shoemaker had no reason other than previous drug arrests to believe that a crime was being committed, he did not have the requisite reasonable suspicion to justify measurably extending the traffic stop. See Johnson, 555 U.S. at 333. As a result, Defendant was illegally seized when the drug dog alerted. For these reasons, Defendant's Motion to Suppress is granted.”
The State appeals.
The State argues the district court erred in granting the motion to suppress because Officer Shoemaker's actions were reasonable, did not measurably extend the duration of the traffic stop, and the de minimis intrusion did not violate Ojiaka's rights under the Fourth Amendment to the United States Constitution. We agree.
In reviewing an order suppressing evidence, an appellate court generally reviews the factual findings underlying the district court's suppression decision using a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by applying a de novo standard. This court does not reweigh the evidence. State v. Ransom, 289 Kan. 373, 380, 212 P .3d 203 (2009). However, when the material facts to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).
The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” A traffic violation provides an objectively valid reason for conducting a traffic stop; thus, an initial seizure of the driver is not deemed unreasonable, even if the stop is pretextual. State v. Coleman, 292 Kan. 813, 818, 257 P.3d 320 (2011); State v. Moore, 283 Kan. 344, 350, 154 P.3d 1 (2007). The State has the burden of proving that a search or seizure was lawful. State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).
A traffic stop is a seizure under the Fourth Amendment. State v. Thompson, 284 Kan. 763, 773, 166 P.3d 1015 (2007). To determine if the seizure is lawful, we examine whether the traffic stop was (1) justified at its inception and (2) reasonably related in scope to the circumstances that justified the interference in the first place. Terry v. Ohio, 392 U.S. 1, 19–20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under the first prong, in order to stop and detain a person, an officer must have a reasonable suspicion that criminal activity is taking place, or is about to take place. State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998). This prong is codified in Kansas at K.S.A. 22–2402(1). There is no dispute in this case that Officer Shoemaker was justified in stopping Ojiaka's vehicle for windows tinted beyond the legal limit, so we move on to the second prong, the permissible scope of the detention.
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. When the driver has produced a valid license and proof that he or she is entitled to operate the car, the driver must be allowed to proceed on his or her way, without being subject to further delay by the officer for additional questioning. In order to justify a temporary detention for further questioning, the officer must have either consent or reasonable suspicion of the presence of illegal drugs or of some other serious crime. See State v. Mitchell, 265 Kan. 238, Syl. ¶ 4, 960 P.2d 200 (1998). The questions of consent or reasonable suspicion are not at issue in this case. What is at issue is whether Officer Shoemaker subjected Ojiaka to “further delay” or if he “measurably extended the stop,” or whether he even extended the stop at all, beyond the permissible duration of the traffic stop.
An officer's inquiries or actions unrelated to the justification for an initial traffic stop do not convert the stop into an unlawful seizure so long as they do not measurably extend or prolong the stop. See State v. Morlock, 289 Kan. 980, 995–96, 218 P.3d 801 (2009). However, detaining a driver for even a few minutes in order to allow a drug-sniffing dog to arrive unreasonably extends the detention when the officer did not need additional time to ask exploratory questions or to write a traffic citation. See Coleman, 292 Kan. at 822;Mitchell, 265 Kan. 238, Syl. ¶ 3.
In analyzing whether a stop is excessive in duration or scope, a court considers whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions in a short period of time. State v. Smith, 286 Kan. 402, 410, 184 P.3d 890 (2008) (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 [1985] ),cert. denied555 U.S. 1062 (2008). “Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave.” Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). However, during the time it takes the officer to conduct a computer check and issue the citation, as long as it does not measurably extend the duration of the stop, an officer may inquire into matters unrelated to the justification for the stop. Morlock, 289 Kan. at 987.
The district court below found the present case fell somewhere between the facts of Morlock (reasonable suspicion existed where the officer asked three questions while the defendant looked for the vehicle rental agreement) and State v. Golston, 41 Kan.App.2d 444, 203 P.3d 101 (2009) (reasonable suspicion of illegal drug activity, police were permitted to extend the detention beyond the conclusion of the traffic stop to allow time for the drug dog sniff of the truck). The district court briefly cited State v. Wendler, 47 Kan.App.2d 182, 274 P.3d 30 (2012), but failed to contrast it to the present case.
Officer Shoemaker was not required to have reasonable suspicion before requesting the narcotics detection dog to assist him with the stop. In Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), a state trooper stopped the respondent for speeding. When the trooper radioed the dispatcher to report the stop, a second trooper overheard the transmission and drove to the scene with a narcotics-detection dog. While the first trooper was writing a warning ticket, the second trooper walked the dog around the car, and the dog alerted at the trunk. The troopers searched the trunk and found marijuana. The entire incident lasted less than 10 minutes. The Illinois Supreme Court suppressed the evidence and held, in part, that the use of the dog unjustifiably enlarged the scope of a routine traffic stop into a drug investigation.
On certiorari, the United States Supreme Court vacated and remanded. The Court noted that the initial seizure was lawful and the duration of the stop was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop. 543 U.S. at 407–08. The Caballes Court concluded:
“[T]he use of a well-trained narcotics-detection dog-one that ‘does not expose noncontraband items that otherwise would remain hidden from public view,’ [citation omitted]—during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement.” 543 U.S. at 409.
Recently, a panel of this court addressed quite similar facts in State v. Fowler, No. 105,752, 2011 WL 6311112 (Kan.App.2011) (unpublished opinion). Fowler was stopped by an Olathe police officer for a defective headlamp. After checking Fowler's criminal history, the officer called for a K–9 unit to do a drug sniff on Fowler's vehicle. Although only 11 minutes elapsed between the initial stop and the arrival of the K–9 unit at the scene, there is evidence in the record that as much as 39 minutes may have elapsed between the initial stop and the alert by the drug dog. The district court found that the drug sniff was unrelated to the purpose of the stop and “[t]hese activities took enough time to create a measurable extension of the traffic stop.” 2011 WL 6311112, at *2. Moreover, the court found that Officer Busenbark did not have reasonable suspicion of criminal activity to justify the measurable extension of the stop. Thus, the court suppressed the evidence found during the drug sniff This court affirmed the suppression on appeal finding the district court did not commit error in determining that the traffic stop was measurably extended beyond the time reasonably required to complete its initial mission.
The main difference with the present case and Fowler is that Officer Shoemaker testified that at 12 minutes and 4 seconds after the vehicle stop, Officer Little notified him that the drug dog had a “hit” on the vehicle. Here, Officer Shoemaker stopped the defendant for illegal window tinting. There is no evidence Officer Shoemaker did not “diligently pursue a means of investigating” the traffic stop. Compare Wendler, 41 Kan.App.2d at 185 (officer was “stretching out the stop as long as he could” and sat in his patrol car not doing anything after he took the defendant's license and registration.) Ojiaka was also lawfully requested to exit the stopped vehicle as a result of the stop or also officer safety. See Maryland v. Wilson, 519 U.S. 408, 419, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (an officer who lawfully makes a traffic stop may order passengers to exit the vehicle pending completion of the stop—seizure is reasonable). Lower courts have concluded that an officer also may require a passenger who has gotten out of a vehicle to get back in it based on the officer's need to control the scene of a traffic stop to keep it safe for officers and the public. See, e.g., United States v. Sanders, 510 F.3d 788, 789–91 (8th Cir.2007); United States v. Williams, 419 F.3d 1029, 1031–34 (9th Cir.2005). Similarly, Officer Shoemaker was correct to control the scene in this case due to the protective nature of a police K–9 and the safety of the occupants of the vehicle while the drug dog sniffs the vehicle. Officer Shoemaker testified that a police K–9 would attack if the slightest threat is presented by the occupants of the vehicle.
After Officer Shoemaker controlled the scene, the dog alerted to suspicious odors in Ojiaka's vehicle. The officers then had reasonable suspicion to search Ojiaka's vehicle. Drugs were found. This was not an unreasonable detention because there was no delay for the narcotics detection dog to arrive at the scene and sniff the vehicle. The State cites multiple cases from our federal counterparts for the principle that de minimis intrusions can occur after the purpose of the stop has been completed. See United States v. Patterson, 472 F.3d 767 (10th Cir.2006); United States v. Alexander, 448 F.3d 1014, 1017 (8th Cir.2006); United States v. Martin, 411 F.3d 998 (8th Cir.2005); United States v. $404, 905.00, 182 F.3d 643, 649 (8th Cir.1999); United States v. Harrison, 606 F.3d 42, 45, (2nd Cir.2010); United States v. Demerger, 337 Fed. Appx. 34, 35–36 (2nd Cir.2009); United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir.2001); United States v. Crain, 33 F.3d 480, 485 (5th Cir.1994); United States v. Suitt, 569 F.3d 867 (8th Cir.2009). The critical fact here is that at the time the drug dog conducted its sniff of Ojiaka's vehicle, the traffic stop was not yet completed. Officer Shoemaker was working diligently to complete the stop, and the dog's alert occurred within a reasonable amount of time—12 minutes—it would take an officer to issue a citation for illegal window tinting. The K–9 search did not measurably extend the stop.
Ojiaka earnestly argues that Thompson, Mitchell, and Golston are dispositive of this case. We disagree. Cases involving the Fourth Amendment are often highly dependent on the particular facts of each case. That is true here.
In Thompson, the traffic stop was over when the complained of acts by the investigating police officer occurred. However, even though the stop was over as far as the traffic offense was concerned, the Thompson court found the defendant had voluntarily submitted to the subsequent search. That is not the situation here. In Mitchell, the officer who made the traffic stop interrupted the process in issuing the ticket to convince the defendant to allow him to search the vehicle. That is not the case here. In Golston, the officers interrupted the process of issuing the ticket to call for a drug dog and required the defendant to remain until the dog arrived. That is not the case here.
Reversed and remanded for further proceedings.