State v. Spagnola (updated December 17, 2012)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,521

STATE OF KANSAS,
Appellee,

v.

SHAUN EUGENE SPAGNOLA,
Appellant.


SYLLABUS BY THE COURT

1.
When the same judge considers a motion to suppress and then conducts a bench
trial, and the defendant objects before the introduction of physical evidence that was the
subject of the motion to suppress, the issue of whether the introduction of that evidence
was proper is sufficiently preserved to allow appellate review.

2.
The detaining of a driver justified solely for the purpose of issuing a ticket to the
driver can become unlawful if it is prolonged beyond the time reasonably required to
complete that lawful objective.

3.
A police officer may extend the length of a traffic stop for questioning beyond the
initial purpose of the traffic stop if the officer has an objectively reasonable and
articulable suspicion that illegal activity has occurred or if the driver voluntarily consents
to further questioning.


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4.
A police officer may ask the driver to get out of a vehicle that has been stopped for
a traffic violation.

5.
The lawfulness of a defendant's seizure is a question different from whether an
ensuing search was voluntary.

6.
In the course of an investigatory detention, a police officer may conduct a pat-
down search of a person for weapons that might pose a danger to the officer.

7.
In order to justify a pat-down search of a person during a traffic stop, the police
officer must harbor reasonable suspicion that the person subjected to the search is armed
and dangerous.

8.
The Fourth Amendment to the United States Constitution permits a warrantless
stop under Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968),
because of the limited nature of the search and the police officer's narrow scope of
authority.

9.
For purposes of investigating a driver of a vehicle who is no more than suspected
of criminal activity, the police officer may not carry out a complete search of the person
or of the person's vehicle or other effects, and the officer may not attempt to verify
suspicions by means that approach the conditions of arrest.
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10.
The protection of the Fourth Amendment to the United States Constitution is not
diluted when legitimate law enforcement interests justify a warrantless search; the search
must still be limited in scope to whatever is justified by the exception to the constitutional
requirement of a warrant.

11.
In order for a consent to search to be valid, two conditions must be met: (1) There
must be clear and positive testimony that consent was unequivocal, specific, and freely
given; and (2) the consent must have been given without duress or coercion, express or
implied.

12.
Whether a consent was freely given is determined by the totality of the
circumstances.

13.
The Fourth and Fourteenth Amendments to the United States Constitution require
that a consent not be coerced by explicit or implicit means or by implied threat or covert
force. No matter how subtly the coercion was applied, the resulting consent would be no
more than a pretext for the unjustified police intrusion against which the Fourth
Amendment to the United States Constitution is directed.

14.
In examining all the surrounding circumstances to determine if in fact a consent to
search was coerced, account must be taken of subtly coercive police questions, as well as
the possibly vulnerable subjective state of the person who consented.
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15.
While a police officer may ask questions unrelated to the purpose of a traffic stop
so long as the interrogation does not meaningfully prolong the duration of the stop, a
search that exceeds the scope of the stop violates the Fourth Amendment to the United
States Constitution.

Review of the judgment of the Court of Appeals in an unpublished opinion filed February 12,
2010. Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed December 7, 2012.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed and remanded with directions.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, argued the cause and was on the
briefs for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Natalie Chalmers, assistant district
attorney, Chadwick J. Taylor, district attorney, Steve Six, former attorney general, and Derek Schmidt,
attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

ROSEN, J.: On review of an unpublished decision of the Court of Appeals, Shaun
Eugene Spagnola seeks reversal of a conviction of possession of methamphetamine,
arguing that the district court admitted evidence derived from an unlawful search of his
pockets following a traffic stop. We conclude that the search was not consensual under
the circumstances and violated the Fourth Amendment to the United States Constitution
protection against unreasonable searches.

On June 3, 2007, Officer Aaron Jones of the Topeka Police Department observed
a car drive through an intersection without stopping for a stop sign. Jones activated the
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lights of his patrol car and signaled the car to pull over to the side of the road. As the car
pulled over, it rolled onto the curb and into a grassy area next to the curb and then back
off of the curb before coming to a complete stop. Jones saw the driver reach down toward
his right side as he pulled over, as if reaching into a pocket or the car console. Jones
walked over to the car, and Spagnola, who was driving, presented his driver's license.

Jones returned to his patrol car and, concerned that Spagnola might be armed,
requested backup assistance. After the backup officer arrived, Jones returned to
Spagnola's car and asked him to step out of the car. As Spagnola was getting out of the
car, Jones asked him whether he had anything illegal in his possession. Spagnola replied
that he was working on a computer monitor for a friend and he thought the monitor might
have been stolen. Jones saw a small clip-on knife protruding from one of Spagnola's pant
pockets, and he removed the knife and then asked him whether he had anything illegal on
his person. Spagnola said, "Other than a knife, no." Jones informed him that the knife
was not illegal and inquired about drugs, knives, guns, needles, "or anything like that."

After Spagnola said that he did not have any illegal items on his person, Jones
asked, "Is it okay if I search your pockets?" Spagnola said, yes. Jones then asked
Spagnola to turn around, place his hands behind his back, and interlace his fingers. Jones
again asked for permission to search his pockets, and Spagnola again consented.

Spagnola was wearing cargo shorts with numerous pockets. In a zipper pocket
behind the right cargo pocket Jones found two baggies of what appeared to be
methamphetamine and a third baggie containing what appeared to be methamphetamine
residue. Jones read Spagnola his Miranda rights and put him in handcuffs. The contents
of the baggies were subsequently identified as methamphetamine.

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The State filed a complaint charging Spagnola with one count of possession of
methamphetamine and one count of failure to stop at a stop sign. Spagnola filed a motion
to suppress evidence seized from his person and all statements that he made after the
evidence was seized. The district court conducted a hearing on the motion to suppress
and denied the motion. Immediately before trial, Spagnola filed a renewed and more
extensive motion to suppress, which the district court, following oral argument, also
denied.

Following a bench trial, the judge found Spagnola guilty of both counts. The court
sentenced Spagnola to a fine of $60 for failing to stop at a stop sign and a suspended
sentence of 11 months' imprisonment with a supervised postrelease period of 12 months
for the possession of methamphetamine conviction. Spagnola timely appealed to the
Court of Appeals, which held that he had failed to preserve the suppression issue for
appellate review. The Court of Appeals went on to note in dicta that even if the issue had
been preserved, there was "ample basis" for denying the motions to suppress, State v.
Spagnola, No. 101,521, 2010 WL 597004, at *2 (Kan. App. 2010) (unpublished opinion).
This court granted review under K.S.A. 20-3018(b).

Preservation

Two witnesses testified at trial: Brad Crow, a forensic chemist for the KBI, and
Aaron Jones, the police officer who searched and arrested Spagnola. Their testimony was
presented without objection, but Spagnola objected to the introduction of Crow's lab
report and the introduction of the three plastic baggies "on the grounds of our motion to
suppress." The objections were overruled. The majority of the Court of Appeals panel
found that Spagnola asserted his objections too late in the course of the witnesses'
testimony to allow appellate review.

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The general rule is that the failure of a party to make a specific contemporaneous
objection to the admission of evidence or testimony at trial precludes review of the
admissibility of that evidence or testimony on appeal. K.S.A. 60-404; see State v. Gaona,
293 Kan. 930, 956, 270 P.3d 1165 (2012).

In State v. King, 288 Kan. 333, 204 P.3d 585 (2009), this court reiterated its
commitment to the contemporaneous objection requirement. The court noted that the
purpose of the requirement is to give the trial court the opportunity to conduct the trial
without exposure to tainted evidence, thus avoiding possible reversal, and the rule is also
necessary to ensure that litigation may be brought to a conclusion. King, 288 Kan. at 342.

In State v. Bogguess, 293 Kan. 743, 747, 268 P.3d 481 (2012), however, this court
relaxed the objection requirement in the specific context of a bench trial on stipulated
facts when the same judge presides over the hearing on the motion to suppress and
conducts the trial:

"When a bench trial consists solely of stipulated facts, there is no opportunity for
the defendant to make a contemporaneous objection at trial to the admission of specific
evidence. And when the bench trial is conducted by the same judge who presided over
the hearing on the motion to suppress, there is no reason to rehash the same arguments
when no additional evidence has been presented. The lack of a contemporaneous
objection does not bar our review under these circumstances." (Emphasis added.)

In Bogguess, 293 Kan. at 747, the court cited with approval State v. Parson, 226
Kan. 491, 493-94, 601 P.2d 680 (1979). In Parson, the court noted that the
contemporaneous objection rule is relaxed to fit particular trial situations, including trials
to the court rather than to a jury. Because the trial court and opposing counsel were
informed of the appellant's objections to the evidence in his argument on the motion for
judgment of acquittal at the close of the State's case, the court and the State had sufficient
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notice of the specific objections prior to the trial court's decision. Parson, 226 Kan. at
493-94.

The Parson court in turn cited State v. Gordon, 219 Kan. 643, 652, 549 P.2d 886
(1976), where this court held:

"Ordinarily, failure to make timely, specific objection to the admission of
evidence will bar consideration of the admissibility question on appellate review.
[Citations omitted.] Here, the appellant's objection was not 'timely' in the strict sense, but
there is no doubt the district court was apprised of the issue before it rendered its decision
. . . . What transpired is consistent with the rationale underlying the contemporaneous
objection rule—i.e.[,] objecting to admissibility and stating the grounds therefor permits
the court to preclude improper evidence from affecting the decision. This was a trial by
the court; no jurors had been swayed by the improper evidence. The court had not
rendered its decision when the issue was raised, and we think under the circumstances of
this case the spirit if not the letter of the contemporaneous objection rule was satisfied."

In the present case, the trial court explicitly stated it understood that any future
objections would be based on its ruling on the suppression issue and that the issue was
clear. Although the court directed Spagnola to make specific contemporaneous
objections, it did not repeat that requirement when it denied Spagnola's second
suppression motion immediately before trial.

The same judge twice ruled on the suppression issue and then conducted the trial.
As Judge Malone pointed out in his Court of Appeals dissenting opinion in Spagnola,
2010 WL 597004, at *2, the purpose of the contemporaneous objection rule was fulfilled
without necessitating repeated interruptions of the trial. Furthermore, Spagnola
interposed timely objections when the State sought to introduce physical evidence at the
trial. For these reasons, we deem the suppression issue adequately preserved for appellate
review.
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The Constitutionality of the Search

In appeals of suppression issues, this court reviews the factual underpinnings of a
district court's decision for substantial competent evidence and the ultimate legal
conclusion drawn from those facts de novo. The ultimate determination of the
suppression of evidence is a legal question requiring independent appellate review. The
State bears the burden to demonstrate that a challenged search or seizure was lawful.
When the parties do not dispute the material facts, the suppression question is solely one
of law. State v. Thomas, 291 Kan. 676, 682, 246 P.3d 678 (2011).

The trial court held that a chain of events, starting with Jones' traffic stop and
suspicion that Spagnola was intoxicated, led to a proper stop, the detention of Spagnola,
and the request for consent to search his pockets. The Court of Appeals agreed. Spagnola,
2010 WL 597004, at *2.

The Court of Appeals did not address, however, whether the search as carried out
was reasonable in scope and whether Spagnola's consent to the search was given freely
and voluntarily. We consider these factors and conclude that Jones exceeded the
reasonableness that the United States Constitution requires.

There is little question that Jones had a legitimate reason to make a traffic stop: he
witnessed a violation of the traffic laws. Under normal circumstances, a law enforcement
officer may request license and registration, run a computer check, and issue a citation.
Once the driver has produced a valid license and proof has been confirmed that he or she
is entitled to operate the vehicle, the driver must be allowed to proceed on his or her way
without being subject to further delay by police for additional questioning. State v.
Morlock, 289 Kan. 980, 986, 218 P.3d 801 (2009). The detaining of a driver justified
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solely for the purpose of issuing a ticket to the driver can become unlawful if it is
prolonged beyond the time reasonably required to complete that lawful objective. Illinois
v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005).

In the present case, however, Jones became aware of information that reasonably
led him to prolong the stop. He saw Spagnola drive up over the curb, suggesting possible
impairment. He saw Spagnola reach down in the direction of his right side or the car
console, suggesting the presence of a weapon and danger to law enforcement. When
asked about why he was reaching down, Spagnola said he was looking for his cigarettes;
he then changed his answer and said he was looking for his registration papers. These
factors provided Jones with a legitimate concern that Spagnola might be armed or that he
might be impaired. It was reasonable for Jones to wait for a backup officer before he
returned to the car to write a ticket because of the objectively real threat to his safety.

Once a backup officer arrived, Jones asked Spagnola to step out of the car. A
police officer may ask the driver to get out of a vehicle when the vehicle has been
stopped for a traffic violation. Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S. Ct. 330,
54 L. Ed. 2d 331 (1977). After Spagnola stepped out of the car, he told Jones and the
backup officer that stolen computer equipment might be in the car. At this point, Jones
was still involved in the original traffic stop, and he had a reasonable basis to ask further
questions relating both to possible impairment and possible stolen goods. He also had a
legitimate concern about the possibility of weapons on Spagnola's person. A police
officer may extend the length of the traffic stop for questioning beyond the initial purpose
of the traffic stop if the officer has an objectively reasonable and articulable suspicion
that illegal activity has occurred or if the driver voluntarily consents to further
questioning. State v. Coleman, 292 Kan. 813, 816-17, 257 P.3d 320 (2011); State v.
Reason, 263 Kan. 405, 410, 951 P.2d 538 (1997).

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What the police officer did next was not reasonable under the Fourth Amendment
to the United States Constitution. This is because the lawfulness of a defendant's seizure
is a question different from whether the ensuing search was voluntary. See, e.g., United
States v. Valenzuela, 494 F.3d 886, 891 (10th Cir.), cert. denied 552 U.S. 1032 (2007).

The Fourth Amendment protects "against unreasonable searches and seizures."
Reasonableness is the touchstone of the Fourth Amendment. Ohio v. Robinette, 519 U.S.
33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996). The reasonableness of a police officer's
conduct is viewed in terms as understood by those versed in the field of law enforcement.
State v. Walker, 292 Kan. 1, 8, 251 P.3d 618 (2011).

Although the initial stop was predicated on a traffic violation, the detention
continued less out of a concern about impaired driving and increasingly out of a concern
about stolen property. The possible stolen property was in the backseat of Spagnola's car,
not on his person. The only justification for the pocket search was for Jones' safety.

Under the United States Constitution, Jones was allowed to conduct a pat-down
search of Spagnola's clothing. In the course of an investigatory detention, a police officer
may conduct a pat-down search for weapons that might pose a danger to the officer.
Knowles v. Iowa, 525 U.S. 113, 118-19, 119 S. Ct. 484, 142 L. Ed. 2d 492 (1998); Terry
v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); see K.S.A. 22-2402(2).
In order to justify a pat-down search of a driver or a passenger during a traffic stop, the
police officer must harbor reasonable suspicion that the person subjected to the search is
armed and dangerous. Arizona v. Johnson, 555 U.S. 323, 327, 129 S. Ct. 781, 172 L. Ed.
2d 694 (2009). A warrantless Terry stop is permissible under the Fourth Amendment
because of its limited nature and because of the officer's narrow scope of authority.
Michigan v. Summers, 452 U.S. 692, 698, 700 n.11, 101 S. Ct. 2587, 69 L. Ed. 2d 340
(1981).
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There was no reason, however, for Jones to expand the pat-down search. Such a
search exceeds the narrowly crafted exception that Terry created for the purpose of police
protection.

During a Terry stop, a police officer may conduct a pat-down search only when
nothing in the initial stages of the encounter dispels his or her reasonable fear for his or
her own or others' safety. In such an instance, the officer may conduct a "carefully limited
search of the outer clothing" to determine whether the individual has weapons that might
be used against the officer. (Emphasis added.) Terry, 392 U.S. at 30.

"In the name of investigating a person who is no more than suspected of criminal activity,
the police may not carry out a full search of the person or of his automobile or other
effects. Nor may the police seek to verify their suspicions by means that approach the
conditions of arrest." Florida v. Royer, 460 U.S. 491, 499, 103 S. Ct. 1319, 75 L. Ed. 2d
229 (1983).

The protections of the Fourth Amendment are not diluted when legitimate law
enforcement interests justify a warrantless search; the search must still be limited in
scope to whatever is justified by the exception to the constitutional requirement of a
warrant. Royer, 460 U.S. at 500. "[T]he investigative methods employed should be the
least intrusive means reasonably available to verify or dispel the officer's suspicion in a
short period of time." (Emphasis added.) Royer, 460 U.S. at 500.

It is clear that the pocket search exceeded the scope of the constitutionally
permissible action narrowly tailored to protect law enforcement. It was not the least
intrusive means available to dispel the officer's suspicion of a threat in the short period of
time that Spagnola was detained.
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As the courts below noted, however, Spagnola, who was standing outside of his
vehicle in the authoritative presence of two armed police officers, told Jones that he had
permission to search his pockets. In order for a consent to search to be valid, two
conditions must be met: (1) There must be clear and positive testimony that consent was
unequivocal, specific, and freely given; and (2) the consent must have been given without
duress or coercion, express or implied. State v. Ransom, 289 Kan. 373, Syl. ¶ 4, 212 P.3d
203 (2009).

Whether a consent was freely given is determined by the totality of the
circumstances. United States v. Drayton, 536 U.S. 194, 207, 122 S. Ct. 2105, 153 L. Ed.
2d 242 (2002); Robinette, 519 U.S. at 39.

The appropriate inquiry here is whether a reasonable person would feel free to
decline the officer's requests or otherwise terminate the encounter. See Florida v. Bostick,
501 U.S. 429, 436, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991).

"'Consent' that is the product of official intimidation or harassment is not consent
at all. Citizens do not forfeit their constitutional rights when they are coerced to comply
with a request that they would prefer to refuse." Bostick, 501 U.S. at 438.

"[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by
explicit or implicit means, by implied threat or covert force. For, no matter how subtly
the coercion was applied, the resulting 'consent' would be no more than a pretext for the
unjustified police intrusion against which the Fourth Amendment is directed. . . .
". . . In examining all the surrounding circumstances to determine if in fact the
consent to search was coerced, account must be taken of subtly coercive police questions,
as well as the possibly vulnerable subjective state of the person who consents."
Schneckloth, 412 U.S. at 228-29.
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This court has developed a nonexclusive list of objective factors to help determine
whether a citizen's encounter with police is voluntary or an investigatory detention. This
list includes the presence of more than one police officer, the display of a weapon,
physical contact by the police officer, use of a commanding tone of voice, activation of
sirens or flashers, a command to halt or to approach, and an attempt to control the ability
to flee. Walker, 292 Kan. at 6-7 (quoting State v. McGinnis, 290 Kan. 547, 552, 233 P.3d
246 [2010]). This court has also noted that the presence of more than one police officer
may strongly suggest "a coercive atmosphere." See Thomas, 291 Kan. at 686.

The seizure resulting from a traffic stop is more akin to an investigatory detention
than an arrest. State v. Smith, 286 Kan. 402, 406, 184 P.3d 890, cert. denied 555 U.S.
1062 (2008). Once an involuntary encounter has occurred, the same factors that go into
determining whether an encounter is voluntary may reasonably apply to whether the
consent for a search was voluntary.

Spagnola was standing outside of his car in the presence of more than one police
officer, one of whom had arrived as backup support. When Spagnola gave his second
permission for the search, he was standing with his back to the officers, with his hands
behind his back and his fingers interlaced. This was not a posture or an environment in
which it can be said that consent was voluntarily given free from coercion.

The pocket search exceeded the scope of the "carefully limited" exception to the
warrant requirement set out in Terry and could serve no purpose except to open up a hunt
for evidence unrelated to the traffic stop and the detention. Spagnola's consent was given
in a highly coercive atmosphere. For these reasons, we conclude that the search violated
the constitutional protection against unreasonable searches, and the evidence obtained
from that search should have been suppressed.
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As Judge Malone noted in his dissenting opinion in the Court of Appeals, this is
not a new principle of law. This court has already held in Smith, 286 Kan. at 419, that
even though there is a consent to a search, a detention that exceeds the scope of or is
unrelated to the stop violates the Fourth Amendment.

Judgment of the Court of Appeals affirming the district court is reversed.
Judgment of the district court is reversed and remanded with directions.