Opinion
No. 107,209.
2013-10-7
STATE of Kansas, Appellee, v. Jeffrey TAYLOR, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
The State charged Jeffrey Taylor with four counts of felony possession of a controlled substance with intent to distribute, two counts of no tax stamp, and one count of criminal possession of a firearm. The district court, after a bench trial on stipulated facts, acquitted Taylor of the firearm charge and convicted him on all the others. In this direct appeal from the convictions, Taylor argues the court erred in not granting his motion to suppress the evidence seized by police officers from his vehicle after a traffic stop.
In the district court, Taylor's counsel and Taylor himself pro se filed motions to suppress. Both motions argued that the evidence in question was discovered after an unlawful detention and should have been suppressed as fruit of the poisonous tree. In his brief on appeal, Taylor argues three points: the traffic stop never became a voluntary encounter; the police lacked reasonable suspicion to detain Taylor after he refused to give consent to search his vehicle; and even if police had reasonable suspicion that Taylor was in possession of a firearm at the time of the detention, the dog sniff and vehicle search exceeded the permissible scope under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
We conclude, and it is not disputed, that the initial traffic stop of Taylor was lawful and that police officers then took a reasonable amount of time for the stop in order to check Taylor for warrants and to issue traffic citations. We further conclude that officers then lawfully extended the stop to conduct a “dog sniff” and then lawfully searched his vehicle based upon information they had previously obtained that provided a reasonable suspicion that Taylor may be in possession of illegal drugs. We affirm.
Facts
At a hearing on the suppression motion in the district court, the State presented evidence concerning circumstances leading up to the traffic stop and then the facts of the stop itself. That evidence included the following.
The traffic stop occurred on December 30, 2010. During the month before, Taylor was the subject of a police investigation for possible criminal activity. The following chronology of that investigation is significant here:
• November 27, 2010: Officer Joseph Springob of the Wichita Police Department received an anonymous tip that a person who went by the nickname of “Playboy” was selling methamphetamine out of the Elms Motel—a known location for drug activity—and he possessed a MAC–11 firearm with a silencer.
• December 3, 2010: Springob contacted Deputy Burdett with the Sedgwick County Sheriff's Department. Burdett identified Taylor as the person known by the street name of “Playboy,” confirmed the veracity of the information provided by the anonymous tipster, and told Springob that Taylor was also known to stay at a particular residence on West 54th Street South (the West 54th house).
• December 10, 2010: Springob conducted a morning trash pull at the West 54th house, during which he found evidence of possible criminal activity, including: traces of methamphetamine and marijuana; a spent .40 caliber casing; an empty box of ammunition; a box for a security camera with night vision, commonly known to be used by drug dealers; drug paraphernalia; and papers containing what appeared to be ledgers of drug sale transactions. Later that same afternoon, Deputy Gill confirmed the same information Springob had learned on December 3. Gill further advised that Taylor was known to be in possession of several stolen firearms. Possession of any firearm was prohibited given his status as a prior felon.
• December 17, 2010: While conducting surveillance of another house during an unrelated drug investigation, Springob observed a van stop by the house for only a brief period of time, which was consistent with drug activity. After seeing the van commit a traffic violation once it left the house, Springob stopped the van, Taylor was driving and a female was in the passenger seat. Taylor informed Springob he was buying the van and did not have insurance. After a records check did not reveal that Taylor had any outstanding warrants, Springob gave Taylor a warning and let him go.
• December 23, 2010: Springob was again conducting surveillance on the West 54th house, where he saw yet another vehicle stop for a brief time and leave. Springob stopped that vehicle for a traffic violation and ultimately arrested the driver for possession of methamphetamine. The driver indicated he had purchased the methamphetamine from Taylor at the West 54th house.
This takes us to the December 30, 2010, traffic stop at issue in this appeal. On that date, Springob stopped the same van, in which he had previously stopped Taylor, for violation two city ordinances. Taylor was driving and produced a valid driver's license. He told Springob that he was still trying to purchase the van and did not yet have insurance. Taylor's passenger appeared to be the same female who was with him during the stop on December 17.
Springob proceeded to check the validity of Taylor's license, run a warrants check, and prepare a citation for the ordinance violations: driving with a cracked windshield, failing to stop from the private drive, and knowingly driving while uninsured. During this time, two patrol officers arrived to provide Springob backup per department protocol: Officer Randy Williamson, who was familiar with the ongoing criminal investigation of Taylor and who remained standing by the passenger side of Springob's patrol car to allow him a clear view of Taylor and his passenger; and Officer Schuler, who stood with Springob. As Springob completed the citation, both he and Williamson saw Taylor motion toward the center console and then lean toward the passenger-side floorboard. Once Springob was finished writing the citation, he had Taylor exit the van and step to the side of the road so he could explain and serve him with the citations.
After giving the explanations for the citations and returning Taylor's license, Springob told Taylor that they “were through.” But according to Springob's testimony at the suppression hearing, this meant only that he “was through with the traffic portion of that” and “[he] was [still] following upon the investigation that Taylor was involved in for drugs.”
As Taylor and Springob walked back toward their vehicles upon completion of the traffic stop, Springob turned and asked Taylor if he could ask him more questions. Springob described this encounter as “recontacting” Taylor to “investigate the second half of that.” Taylor then walked back to Springob, who inquired whether Taylor had any illegal drugs or weapons in the vehicle and asked for his consent to search the van. Taylor replied, “No,” and told Springob he wanted to leave.
Springob would not allow Taylor to leave. He testified he then detained Taylor based on information gleaned throughout the course of the 30–day investigation. He asked the passenger to step out of the van and motioned the K–9 officer who had arrived during this time to have the dog sniff the van. Very shortly thereafter, the dog alerted to a presence of drugs in the van. An ensuing search of the van revealed the evidence Taylor wants suppressed: several bags containing substances that tested positive for narcotics (cocaine or methamphetamine, and several prescription pills, including oxycodone and Alprazolam. The search also uncovered a weapon.
During his closing arguments on his motion to suppress, Taylor argued that once he declined to give Springob consent to search the van and asked to leave, the ongoing detention that followed was illegal and everything that happened thereafter should be suppressed. The district court denied the motion.
Taylor subsequently waived his right to a jury trial and agreed to submit the case to a bench trial on stipulated facts. Those facts were derived from the affidavit of probable cause underlying the charges against him, the evidence offered during the suppression hearing, and photos of the van's cracked windshield. Taylor repeatedly preserved his suppression issue for appeal during the bench trial. The district court found Taylor guilty on all charges except for criminal possession of a firearm. Thereafter, it granted Taylor's motion for a downward dispositional departure sentence and placed him on probation for 18 months, with an underlying 94–month prison term and 24 months' postrelease supervision.
Preservation in the Trial Court of Issues for Appeal
As we stated, on appeal Taylor raises three legal issues which he argues support his position that the evidence against him should have been suppressed: (1) whether his encounter with Springob after the traffic stop had ended was voluntary; (2) whether Springob had reasonable suspicion to detain Taylor after he declined to give consent to search his vehicle; and (3) whether the dog sniff and search of his vehicle exceeded the permissible scope of a Terry stop. The State responds that we need not consider any of these arguments because Taylor did not raise them below.
It is difficult to determine from a reading of the two suppression motions whether Taylor specifically argued to the district court the first and third points he delineates on appeal. However, the motion filed by counsel clearly mentions the second point when it stated: “Therefore, without valid consent, the only way Officer Springob could continue to legally justify the further detention of Taylor would have been to articulate a reasonable suspicion that he was engaged in a criminal venture when stopped.” He then alleges there was no such venture noted in the officer's report. We also note that the district judge addressed this issue and found that the officers had reasonable suspicion to further detain Taylor after he refused consent to search his van based upon the information it had gathered during the 30–day investigation of Taylor and the furtive movement he made during the stop from the console to the floor on the passenger side of the vehicle. We will first address that issue.
Reasonable Suspicion to Further Detain Taylor Following His Refusal to Consent to a Search of His Van
Our standard of review here is well known. First, we review the factual underpinnings of the district court's decision for substantial competent evidence. We do not assess witness credibility, reweigh evidence, or resolve any conflicts in the evidence. Second, we review de novo the propriety of the court's ultimate legal conclusion drawn from those facts. Once Taylor moved to suppress, the State bore the burden of proving the lawfulness of the seizure challenged here by Taylor. See State v. Johnson, 293 Kan. 959, 963, 270 P.3d 1135 (2012).
The Fourth Amendment to the United States Constitution, made applicable to the States by way of the Fourteenth Amendment, 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, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The Kansas Constitution Bill of Rights, § 15 similarly states: “The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate.” Our Supreme Court has emphasized that these two constitutional provisions provide identical protection. See State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).
As previously noted, at issue here is the legality of Taylor's seizure after he refused to grant his consent to search the van and Springob then prohibited him from leaving. For purposes of this appeal, it is undisputed that any voluntary encounter (if there was one) between Taylor and Springob had ended and the situation had become an investigatory detention at that point.
Such investigatory detentions, also commonly referred to as Terry stops, are lawful if “the officer [has] reasonable and articulable suspicion of illegal transactions in drugs or another serious crime.” Anderson, 281 Kan. at 902, 136 P.3d 406; see also State v. Pollman, 286 Kan. 881, 888–89, 190 P.3d 234 (2008) (discussing circumstances under which voluntary encounter becomes investigatory detention). The district court found that at the point in time when the voluntary encounter ended, Springob had gained a reasonable and articulable suspicion of illegal activity sufficient to justify that investigatory detention.
Before discussing the parties' arguments for and against the district court's decision, a review of what constitutes “reasonable suspicion” is in order. “Reasonable suspicion” has been defined to mean
“ ‘a particularized and objective basis for suspecting the person stopped is involved in criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of information possessed by the detaining authority and the information's degree of reliability. Quantity and quality are considered in the totality of the circumstances—the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.’ State v. Toothman, 267 Kan. 412, Syl. ¶ 5, 985 P.2d 701 (1999).” Pollman, 286 Kan. at 890, 190 P.3d 234.
In reviewing for reasonable suspicion, courts consider the totality of the circumstances from the viewpoint of a trained law enforcement officer. 286 Kan. at 890, 190 P.3d 234. Importantly,
“ ‘ “[a court must] judge the officer's conduct in light of common sense and ordinary human experience. [Citation omitted.] ‘[A court's] task ... is not to pigeonhole each purported fact as either consistent with innocent travel or manifestly suspicious,’ [citation omitted], but to determine whether the totality of the circumstances justify the detention. [Citation omitted.] [A court will] make [this] determination with deference to a trained law enforcement officer's ability to distinguish between innocent and suspicious circumstances, [citation omitted], 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.’ “ [Citation omitted.]' “ State v. DeMarco, 263 Kan. 727, 734–35, 952 P.2d 1276 (1998) (quoting United States v. Mendez, 118 F.3d 1426, 1431 [10th Cir.1997] ).” Pollman, 286 Kan. at 890, 190 P.3d 234.
Taylor asks us to disagree with the district court's conclusion that the information police officers had obtained during the 30–day investigation about him along with the furtive movement he made during the traffic stop provided the reasonable suspicion necessary to further detain him. He acknowledges the content of the information from the investigation but argues that it was limited to drug activities out of a home or hotel room and did not support the reasonable suspicion that he was using his vehicle in his drug activities or that there were drugs in the van. Clearly, however, the evidence established that Taylor had sold drugs on numerous occasions and out of different locations prior to the traffic stop. Because Taylor was selling in more than one place, a long leap is not required before law officers have reasonable suspicion that such a person may be transporting an illegal product from place to place in a vehicle.
Also, Taylor contends Springob did not have reasonable suspicion to believe he was committing the crime of being a felon in possession of a firearm at the time of the traffic stop. In support, he points to three circumstances that might have supported such a conclusion but were not present here: (1) There was nothing to indicate that the snitch information obtained by Springob and confirmed by the deputies came from different sources; (2) the evidence did not affirmatively establish that Taylor was living in West 54th house when the trash pull was conducted; and (3) “even if the police were correct in their belief” that Taylor resided at the West 54th house, there was no evidence to indicate that there were no other residents of that house who might have been responsible for the contents of the trash.
We agree with the State that the factual circumstances at issue here are sufficiently analogous to those found by both this court and our Supreme Court to be sufficient to support a finding of reasonable suspicion of drug activity in Anderson, 281 Kan. at 903–04, 136 P.3d 406 (quoting with approval discussion and finding of reasonable suspicion for investigatory detention based on reasonable suspicions of drug activity in State v. Anderson, 34 Kan.App.2d 375, 386–87, 119 P.3d 1171 [2005],aff'd281 Kan. 896, 136 P.3d 406.). While we determine the existence of reasonable suspicion on a case-by-case basis relying on the individual facts of each case, the pertinent facts in Anderson are compelling here. They are:
“ ‘[A]t the conclusion of the traffic stop, the officers had the following information: Anderson, along with documented gang member Cobos, had been at the Amoco station where there was suspected drug activity and there had been numerous arrests of individuals leaving the station; the Amoco station's cashier was a documented Bloods gang member and had been convicted the previous year for possession of drugs; after leaving the Amoco station, Anderson went momentarily to the parking lot of an apartment complex where his truck was immediately surrounded by four Hispanic men ...; Anderson was wearing Bloods gang colors and was a documented gang member; Anderson was on parole; [one officer] had observed Anderson speeding and driving left of the center line; during a previous stop, [another officer] had learned that Anderson was carrying $4,000 on his person; and [that officer] previously received information that narcotics detectives were looking into Anderson's activities relating to narcotics trafficking.’ “ 281 Kan. at 903–04, 136 P.3d 406 (quoting Anderson, 34 Kan.App.2d at 386–87, 119 P.3d 1171).
We conclude the evidence here when viewed in the light most favorable to the State, supports the district court's factual findings by substantial and competent evidence and readily support its legal conclusion that Springob had reasonable suspicion to believe that Taylor was involved in illegal drug activity at the time of the traffic stop. That suspicion then provided the officer with justification to order the dog sniff and then search the van after the dog alerted on the vehicle. It is immaterial whether the facts supported a reasonable suspicion that Taylor possessed a weapon at the time of the traffic stop since the officer otherwise had the authority to search the vehicle based upon the suspicion of drug activity.
In light of our ruling it is unnecessary to address Taylor's issue of whether the district court erred in finding the traffic stop turned into a voluntary encounter. It is immaterial. As to his issue of whether the search exceeded the permissible scope of Terry, our opinion answers the question “No.”
Affirmed.