State v. Johnson

1
IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 98,812

STATE OF KANSAS,
Appellee,

v.

ROBERT JOHNSON,
Appellant.


SYLLABUS BY THE COURT

1.
Whether reasonable suspicion exists by a law enforcement officer that a person is
involved in criminal activity is a question of law. An appellate court applies a mixed
question standard of review: whether substantial competent evidence supports the district
court findings, while the legal conclusion is reviewed de novo.

2.
The State bears the burden to demonstrate that a challenged search or seizure was
lawful.

3.
An appellate court does not reweigh the evidence, assess the credibility of the
witnesses, or resolve conflicting evidence.

4.
In reviewing an officer's possession of reasonable suspicion of criminal activity,
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
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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.

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 3, 2009.
Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed September 2, 2011.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed.

Ryan Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

David H. Matthews, assistant district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by:

SCHMISSEUR, J.: Robert L. Johnson was charged with one felony count of
possession of cocaine in violation of K.S.A. 65-4160(a), one misdemeanor count of
possession of marijuana in violation of K.S.A. 65-4162(a), and one felony count of
possession of a controlled substance without a tax stamp affixed in violation of K.S.A.
79-5204 and K.S.A. 79-5208. A jury returned a guilty verdict on the possession counts
and acquitted on the tax stamp charge. The district court sentenced Johnson to 18 months'
probation, with underlying concurrent sentences of 15 months' imprisonment for the
cocaine possession and 12 months in county jail for the marijuana conviction. Johnson
appealed his convictions to the Court of Appeals, which affirmed the district court. We
granted Johnson's petition for review under K.S.A. 20-3018(b), obtaining jurisdiction
under K.S.A. 60-2101(b).
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Johnson contends that Federal Bureau of Investigation (FBI) task-force officers
lacked reasonable suspicion to detain him. We agree. Accordingly, we reverse the district
court and the Court of Appeals and vacate the defendant's sentences.

FACTS

Officers assigned to an FBI violent crimes task force were looking to execute an
arrest warrant for Shane Thompson. In order to find Thompson, the task-force officers
relied on a "face sheet," which is a document issued by the Department of Corrections
that contains a picture of Thompson as well as his physical description. According to the
face sheet, Thompson was a black male with short hair and facial hair, who weighed
about 160 pounds and was 5'2" tall. None of the task-force officers was familiar with
Thompson.

The task force received a tip that Thompson was staying with his mother in
Kansas City, Kansas. The task-force officers drove to the location. According to their
testimony, the task-force members spoke with Thompson's mother, who informed them
that Thompson was not at the residence. The task-force officers then left. An officer
testified that a resident of the house stated that Thompson slept there. The State presented
no evidence that Thompson slept there the previous night, nor was there any evidence
that he recently left the house.

Approximately 5 blocks away from Thompson's mother's residence, Robert
Johnson and Eugene Brown were walking on a sidewalk. Johnson is approximately 5'11"
tall, and Brown stands around 5'9". Both men are black and have facial hair. The officers,
in multiple unmarked squad cars with emergency lights activated, exited their cars, drew
their weapons, and approached Johnson and Brown and requested identification. Officer
Michael Blegen of the Missouri Department of Corrections and a member of the FBI task
force later searched Johnson and discovered marijuana and crack cocaine. Johnson was
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arrested and later charged with possession of marijuana, possession of cocaine, and
possession of a controlled substance without a tax stamp.

The officers testified that they stopped Johnson and Brown because of Johnson's
and Brown's proximity to Thompson's mother's house and their similar appearance to
Thompson, i.e., they were black males with short hair and facial hair. The officers stated
that there was nothing suspicious about Johnson's and Brown's actions. Furthermore, the
officers testified that Johnson looked less like Thompson than Brown. Finally, the
officers did not consider the physical differences between Thompson and Johnson
relevant. Officer Blegen dismissed the differences in height by stating, "[S]ometimes on
our face sheets and the information we receive are not always accurate." To the extent
Johnson did not look like Thompson, Officer Blegen testified, "[T]here are times when
the people don't actually look like the photos."

Johnson filed a motion to suppress arguing there was a lack of reasonable
suspicion to detain him. At the suppression hearing, the district court denied the motion
after listening to Officer Blegen's testimony. Shortly before trial, Johnson renewed his
motion to suppress, and the district court granted Johnson a continuing objection during
trial. The jury found Johnson guilty on the possession charges but acquitted on the tax
stamp charge. After trial, Johnson filed a motion for a new trial, essentially renewing the
motion to suppress. The district court granted Johnson 18 months' probation, suspending
his underlying 15-month prison sentence for the cocaine possession and his 12-month jail
time for the marijuana possession. Johnson appealed to the Court of Appeals, which
affirmed his convictions in an unpublished opinion. State v. Johnson, No. 98,812, 2009
WL 929062, at *4 (2009).

Additional facts will be added as necessary for the discussion below.

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DISCUSSION

In his brief, Johnson presents multiple arguments stemming from his detention,
search, and subsequent arrest. Because we conclude that Johnson was illegally seized, we
address only his first issue: whether the officer possessed reasonable suspicion to detain
him.
Standard of Review

"An appellate court reviews the factual underpinnings of a motion to suppress by a
substantial competent evidence standard and the ultimate legal conclusion by a de novo
standard with independent judgment. [Citations omitted.]" State v. Ernesti, 291 Kan. 54,
64, 239 P.3d 40 (2010). "Substantial competent evidence refers to legal and relevant
evidence that a reasonable person could accept as being adequate to support a
conclusion." State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009).

The State bears the burden to demonstrate that a challenged search or seizure was
lawful. State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010). The appellate court
does not reweigh the evidence, assess the credibility of the witnesses, or resolve
conflicting evidence. State v. McMullen, 290 Kan. 1, 4, 221 P.3d 92 (2009).

However, because the parties do not dispute the material facts, our suppression
question is solely one of law. See State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678
(2011). Consequently, we exercise unlimited review in determining whether Johnson's
encounter was consensual or, if it was an investigatory detention, whether it was
supported by reasonable suspicion.

Analysis

Johnson argues that the district court erred in denying his motion to suppress. He
contends that the encounter with the FBI task force was an investigatory detention
unsupported by reasonable suspicion of criminal activity. As a result, Johnson demands
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that all evidence obtained be excluded 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
does not deny that the encounter was an investigatory detention but contends that it was
supported by reasonable suspicion.

The Fourth Amendment to the United States Constitution guarantees "[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." Section 15 of the Kansas Constitution Bill of Rights
provides lockstep protection to the Fourth Amendment. State v. Moore, 283 Kan. 344,
349, 154 P.3d 1 (2007).

"The United States Supreme Court has developed a 'totality of the circumstances'
test to determine if there is a seizure, or instead a consensual encounter. [Citation
omitted.] '[U]nder the test, law enforcement interaction with a person is consensual, not a
seizure if, under the totality of the circumstances, the law enforcement officer's conduct
conveys to a reasonable person that he or she was free to refuse the requests or otherwise
end the encounter.' [Citations omitted.]" McGinnis, 290 Kan. at 552.

Johnson was seized the moment the officers exited their unmarked squad cars. The
task-force officers were wearing FBI insignia on their clothes; their emergency lights
were activated on their squad cars; and some of the officers had drawn their guns. Under
the totality of the circumstances test, the officers seized Johnson because a reasonable
person would not feel free to refuse an officer's request or otherwise end the encounter
when surrounded by an FBI task force with weapons drawn. See McGinnis, 290 Kan. at
552.

Thus we must analyze whether there was a reasonable articulable suspicion of
criminal involvement at the moment Johnson was seized. See State v. DeMarco, 263
Kan. 727, 734, 952 P.2d 1276 (1998). Seizures are generally permissible if "'an objective
officer would have a reasonable and articulable suspicion that the detainee committed, is
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about to commit, or is committing a crime.'" Thomas, 291 Kan. at 687 (quoting State v.
Pollman, 286 Kan. 881, 889, 190 P.3d 234 [2008]). We recently discussed considerations
for how "reasonable suspicion" are evaluated in Thomas, 291 Kan. at 687-88, where we
stated:

"'"'What is reasonable is based on the totality of the circumstances and is viewed in terms
as understood by those versed in the field of law enforcement.' [Quoting State v. Toney,
253 Kan. 651, 656, 862 P.2d 350 (1993).] . . .
"'[W]e judge the officer's conduct in light of common sense and ordinary human
experience. [Citation omitted.] "Our task . . . is not to pigeonhole each purported fact as
either consistent with innocen[ce] . . . or manifestly suspicious," [citation omitted], but to
determine whether the totality of the circumstances justify the detention. [Citation
omitted.] We make our 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."'" 263 Kan. at 734-35 (quoting United States v. Mendez,
118 F.3d 1426, 1431 [10th Cir. 1997]; citing United States v. Sokolow, 490 U.S. 1, 7, 109
S. Ct. 1581, 104 L. Ed. 2d 1 [1989]).'
"Similarly, the United States Supreme Court has stated:
"'"While 'reasonable suspicion' is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the evidence, the Fourth
Amendment requires at least a minimal level of objective justification. . . . [Citation
omitted.] The officer must be able to articulate more than an 'inchoate and
unparticularized suspicion or "hunch" ' of criminal activity. [Citation omitted.]" Illinois v.
Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000).' Moore, 283 Kan.
at 354-55.
"Whether reasonable suspicion exists is a question of law. We use a mixed
question standard of review, determining whether substantial competent evidence
supports the district court's findings, while the legal conclusion is reviewed de novo.
Moore, 283 Kan. at 350 (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct.
1657, 134 L. Ed. 2d 911 [1996])."

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The State contends the task force possessed reasonable suspicion to seize Johnson
because of Johnson's and Brown's similar appearance to Thompson, combined with their
proximity to Thompson's mother's residence. We disagree. The officers in this case
lacked reasonable suspicion because: (1) Johnson's location was not related to criminal
activity; (2) there is no evidence that the officers used reliable information; and (3) the
physical description of "black man with facial hair" was too broad to be of any assistance
in formulating reasonable suspicion.

First, Johnson's location was not related to criminal activity. In State v. Baker, 239
Kan. 403, 720 P.2d 1112 (1986), police officers were approximately 16 blocks from the
scene of the armed robbery in a familiar area when the robbery report came over the
radio. The initial broadcast stated the robbery was committed by two black men dressed
in black jackets and blue jeans. The officers proceeded to the scene in routes they
believed the robbers may have used to flee the scene. En route to the scene, the officers
encountered a white Chevy containing three black men dressed in black. The officer
followed the car and eventually arrested its occupants.

The Baker court concluded that even though dispatch's report stated there were
only two robbers and provided no information how the robbers made their getaway, it
was not unreasonable for the officers to anticipate the robbers fleeing in a waiting vehicle
with a third person acting as the wheelman. In light of all the information available to the
officers, when coupled with the officers' background, training, and experience, we
determined that they possessed reasonable suspicion to make the stop. 239 Kan. at 408-
09.

Similarly, in State v. Glass, 40 Kan. App. 2d 379, 192 P.3d 651 (2008), rev.
denied 288 Kan. 834 (2009), police dispatch described two suspects, within 30 seconds of
a reported liquor store robbery, as "black males wearing white t-shirts and black hooded
zip-up jackets, who left westbound on foot around the building." 40 Kan. App. 2d at 380.
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Within 1 minute of receiving the dispatch, an officer who was just a few blocks away
from the liquor store noticed a singular vehicle driving away from the crime scene. The
officer drove past the vehicle, shone a light inside, and noticed "two black males in the
front seat." 40 Kan. App. 2d at 380. One occupant was wearing a white t-shirt and the
other was wearing a black outfit. The officer stopped the car and eventually arrested the
occupants after finding one was stuffing something between seat and console and another
had a large sum of money fall out of his lap. The court concluded the officer had
reasonable suspicion to lawfully stop the vehicle. 40 Kan. App. 2d at 385-88.

Finally, in State v. Walker, 292 Kan. 1, 251 P.3d 618 (2011), we concluded that
the officer possessed reasonable suspicion to detain the defendant who semi-fit the
description of the wanted individual and was within 2 blocks of a current crime scene. In
Walker, a burglary victim told the officer that "a black male wearing a black shirt and
black shorts" stole his CD case and vandalized his truck. 292 Kan. at 3. The victim told
the officer that the individual set off eastbound on foot. The officer drove in the direction
of the suspect's direction of travel. In less than 5 minutes and within 2 blocks from the
crime scene, the officer came into contact with Walker, who matched the victim's
description of the perpetrator.

The officer detained Walker and eventually arrested him. In concluding that the
officer possessed reasonable suspicion to seize Walker, we noted that (1) the officer
received information from an identified citizen, (2) Walker was within 2 blocks of the
crime scene; (3) as indicated by the victim, Walker was east of the crime scene and was
found within 5 minutes; (4) Walker matched the race, gender, and number of suspects;
and (5) Walker was wearing a dark shirt and dark shorts. Walker, 292 Kan. at 11-12.

Unlike the situations in Walker, Baker, and Glass, there was no relationship
between Johnson's location and criminal activity. Officer Blegen testified at the
suppression hearing that there was nothing suspicious about the neighborhood or the
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behavior of Johnson and Brown. There was no evidence that Thompson’s mother told the
task-force officers anything about Thompson's current location. Instead, the officers
assumed that Thompson (1) slept at his mother's house the previous night; (2) left
recently; (3) left on foot; (4) headed southbound; and (5) left with an acquaintance.

Second, the officers either lacked reliable information or chose to ignore the
available information. The officers possessed a face sheet issued from the Department of
Corrections that contained a photograph of Thompson as well as provided his physical
characteristics. According to the face sheet, Johnson is 9 inches taller than Thompson.
Yet officers ignored the differences in appearances, including the significant disparity in
height.

Officer Blegen dismissed this variance simply by stating, "[S]ometimes on our
face sheets and the information we receive are not always accurate." At the suppression
hearing, Officer Blegen acknowledged that Johnson was not a perfect match and stated
that "there are times when the people don't actually look like the photo." Later at trial
when asked if the face sheets are wrong a lot of the time or a small amount of times,
Blegen replied, "Several times it's been wrong."

The State bears the burden to prove a lawful seizure. See Moore, 283 Kan. at 349.
Ironically, however, the State attempts to justify the seizure solely based upon the face
sheet by impeaching its veracity and application. The State presented no evidence that it
was reliable for the officers to rely on the warrant or the face sheet. See DeMarco, 263
Kan. at 735. In fact, the only testimony the State presented was just the opposite: The
face sheet was unreliable.

While reasonable suspicion can arise from information that is less reliable than
what is required to show probable cause, the task-force officer's own testimony indicates
either the face sheet was unreliable or the officers chose to simply ignore it. See
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DeMarco, 263 Kan. at 735. Either is unreasonable. First, if the officers chose to ignore
the information, the stop was the result of nothing more than a hunch because, as the
officers stated, there was nothing suspicious about the behavior of Johnson. See Illinois v.
Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). Second, the State
may not justify the seizure based solely on a face sheet by presenting testimony that the
face sheet was unreliable. The State has failed to meet its burden to show that it was
reasonable for the officers to rely on the face sheet. See State v. Marx, 289 Kan. 657, 675,
215 P.3d 601 (2009).

Finally, the task force indicated that Johnson was detained because he shared
common features with Thompson, mainly he was a black male with facial hair. Without
more, however, such a "description is so nonspecific or generic in nature as to defy
reasonable suspicion of criminal activity." State v. Anguiano, 37 Kan. App. 2d 202, 207,
151 P.3d 857 (2007); see also United States v. Hudson, 405 F.3d 425, 438 n.9 (6th Cir.
2005) ("The existence of an arrest warrant is of no moment on the question whether a
particular person police officers come across is in fact the subject of the warrant. The
warrant supplies the officers with probable cause to arrest the person it names and
describes, not a license to duck the reasonable suspicion requirement and stop someone
they only have a subjective hunch is that person."); Dennis v. State, 927 So. 2d 173, 175
(Fla. Dist. App. 2006) (stating officers lacked reasonable suspicion to stop an individual
because similarities in race, gender, hairstyle, and forehead were insufficient to give the
officers "well-founded suspicion" that the defendant was the individual named in the
arrest warrant).

We conclude that under the totality of the circumstances the task-force officers
lacked reasonable suspicion as a matter of law. We reverse the Court of Appeals and the
district court and vacate the sentences.
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ROBERT J. SCHMISSEUR, District Judge, assigned.
1

1
REPORTER'S NOTE: Pursuant to the authority vested in the Supreme Court
by art. 3, § 6(f) of the Kansas Constitution, Judge Schmisseur was appointed to hear case
No. 98,812 to fill the vacancy on the court created by the retirement of Chief Justice
Robert E. Davis.