State v. Britton

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NOT DESIGNATED FOR PUBLICATION

No. 121,306

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

SHANE M. BRITTON,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed January 31, 2020.
Affirmed.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellant.

Shannon S. Crane, of Hutchinson, for appellee.

Before WARNER, P.J., POWELL, J., and LAHEY, S.J.

PER CURIAM: In State v. Follman, No. 121,308, 2019 WL 6223120 (Kan. App.
2019) (unpublished opinion), this court affirmed the Reno County District Court's order
suppressing evidence obtained from Paris Follman's truck following an unreasonable
seizure. This case involves a suppression order from the same traffic stop involving
Follman's passenger, Shane Britton. For the reasons stated in Follman, we affirm.

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FACTUAL BACKGROUND

This court discussed the circumstances giving rise to the suppression motion at
issue here in Follman. In the early hours of May 19, 2018, Follman and Britton were
driving a rented truck on Highway 50 in rural Reno County. Deputy Mikel Bohringer of
the Reno County Sheriff's Department pulled the truck over for speeding. Using tactics
he had learned at a two-day highway interdiction seminar, the deputy asked Follman to
come to his patrol car while he filled out a traffic warning.

Early in the stop, Deputy Bohringer developed reasonable suspicion the truck
might contain drugs. The truck had an Arizona license plate, contained several open food
containers but little luggage, and—according to the rental agreement—had been rented
for a four-hour period on May 14 (almost five days before) in Rosemead, California. And
Follman appeared nervous throughout the encounter.

Deputy Bohringer wrote Follman's information in a notebook and asked her travel
questions while transferring her information to the citation form. Fifteen minutes into the
stop, he requested a records check, which revealed no outstanding warrants. A few
minutes later, the deputy told Follman she could leave, but then asked if she would
answer additional questions. The deputy asked if the truck contained drugs and asked if
he could search the truck; Follman stated the truck did not contain drugs, and she did not
consent to the search. Deputy Bohringer then left to question Britton, who provided
answers about his and Follman's travel plans that were inconsistent to Follman's previous
answers. The deputy returned and again requested Follman's consent for a search; again,
Follman declined.

Thirty minutes into the traffic stop, Deputy Bohringer told Follman she was not
free to leave and requested a drug dog. Deputy Colt Pfautz, a canine handler with the
Harvey County Sheriff's Office, received Bohringer's request. Deputy Pfautz made the
60-mile trip in 45 minutes, arriving 80 minutes after Deputy Bohringer first stopped
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Follman's truck. A few minutes later, Pfautz's dog, Odie, indicated the presence of drugs
inside the truck. A subsequent search revealed marijuana and methamphetamine.

The State charged Follman and Britton with various drug offenses. The district
court granted Britton's motion to suppress the drugs, finding the stop unreasonable. The
court found the deputy had reasonable suspicion to extend the initial traffic stop based on,
among other things, the rental agreement and Follman's hesitant answers (which
conflicted with Britton's responses). But the duration of the detention—as well as several
actions by the deputy the court found to be unnecessary and dilatory—rendered the stop
and subsequent search unreasonable. The State then filed this interlocutory appeal.

DISCUSSION

The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment's Due Process Clause, protects "[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 "the
same protection from unlawful government searches and seizures as the Fourth
Amendment." State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010).

Because a routine traffic stop constitutes a seizure, it must be reasonable. State v.
Smith, 286 Kan. 402, 406, 184 P.3d 890 (2008). Courts gauge the reasonableness of a
traffic stop on its scope and duration. State v. Thompson, 284 Kan. 763, 774, 166 P.3d
1015 (2007). Traffic stops are generally limited to "(i) checking the driver's license; (ii)
determining whether there are outstanding warrants against the driver; and (iii) inspecting
the automobile's registration and proof of insurance." State v. Jimenez, 308 Kan. 315, Syl.
¶ 3, 420 P.3d 464 (2018).

An officer may inquire about subjects unrelated to the purpose of a traffic stop if
doing so does not measurably extend the stop's duration. State v. Morlock, 289 Kan. 980,
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Syl. ¶ 4, 218 P.3d 801 (2009). But if an officer obtains reasonable suspicion of another
crime during the course of a traffic stop, the officer may extend the stop for a reasonable
period of time in order to investigate that suspicion. State v. Anderson, 281 Kan. 896,
902, 136 P.3d 406 (2006). Reasonable suspicion requires "'"a particularized and objective
basis" for suspecting the person stopped of criminal activity.'" State v. DeMarco, 263
Kan. 727, 735, 952 P.2d 1276 (1998) (quoting Ornelas v. United States, 517 U.S. 690,
696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 [1996]).

A seizure "'should be the least intrusive means reasonably available to verify or
dispel the officer's suspicion in a short period of time.'" United States v. Sharpe, 470 U.S.
675, 693-94, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985) (Marshall, J., concurring) (quoting
Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed. 2d 229 [1983]). Courts
assess reasonableness based on the totality of the circumstances. While the duration of a
detention is an important factor in the reasonableness analysis, Sharpe, 470 U.S. at 685,
reasonableness also turns on whether officers "diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly, during which
time it was necessary to detain the defendant." 470 U.S. at 686. The diligence inquiry "is
not simply whether some other alternative was available, but whether the police acted
unreasonably in failing to recognize or to pursue it." 470 U.S. at 687.

To deter violations of the Fourth Amendment by law enforcement, courts hearing
criminal cases exclude—or suppress—evidence found as a result of an unlawful search or
seizure. Utah v. Strieff, 579 U.S. __, 136 S. Ct. 2056, 2061, 195 L. Ed. 2d 400 (2016).
This exclusion applies both to "'primary evidence obtained as a direct result of an illegal
search or seizure'" and to "'evidence later discovered and found to be derivative of an
illegality.'" 136 S. Ct. at 2061 (quoting Segura v. United States, 468 U.S. 796, 804, 104 S.
Ct. 3380, 82 L. Ed. 2d 599 [1984]). Although courts generally refer to this practice as the
exclusionary "rule," the Supreme Court has recently emphasized that it is a judicially
created remedy and only applies when "'its deterrence benefits outweigh its substantial
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social costs.'" Strieff, 136 S. Ct. at 2061 (quoting Hudson v. Michigan, 547 U.S. 586, 591,
126 S. Ct. 2159, 165 L. Ed. 2d 56 [2006]). In other words, "police conduct must be
sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable
that such deterrence is worth the price paid by the justice system." Herring v. United
States, 555 U.S. 135, 144, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009).

We review the factual underpinnings of a district court's decision on a motion to
suppress evidence for substantial competent evidence and its ultimate legal conclusion de
novo. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). When the material facts are
not in dispute—as here—whether evidence should be suppressed is a question of law
over which our review is unlimited. State v. Stevenson, 299 Kan. 53, 57-58, 321 P.3d 754
(2014). Although a defendant initiates a constitutional challenge to a search or seizure by
filing a motion to suppress the evidence in question, the State has the burden to prove any
challenged police conduct was permissible. State v. Cleverly, 305 Kan. 598, 605, 385
P.3d 512 (2016).

Here, the district court found that Deputy Bohringer had reasonable suspicion to
extend the stop for investigatory purposes beyond the scope of the initial traffic stop. But
the court ruled that the investigatory detention was nevertheless unreasonable in violation
of the Fourth Amendment. In particular, the duration of the stop—over 80 minutes,
including a 50-minute wait between the request for a drug dog and the dog's arrival from
another county—coupled with the deputy's stalling strategies rendered the detention
unconstitutional. Based on our review of the circumstances in this case, we agree.

The United States Supreme Court has explained that reasonableness in the Fourth
Amendment context depends, among other things, on whether officers "diligently
pursued a means of investigation that was likely to confirm or dispel their suspicions
quickly, during which time it was necessary to detain the defendant." Sharpe, 470 U.S. at
686. That inquiry "is not simply whether some other alternative was available, but
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whether the police acted unreasonably in failing to recognize or to pursue it." 470 U.S. at
687. Individually, none of the deputy's actions appear unreasonable. But the combination
of his tactics, compounded by the 50-minute delay before the drug dog's arrival, rendered
the stop unconstitutional.

The deputy here testified that, almost from the outset of the stop, he suspected the
U-Haul truck contained drugs. He developed this suspicion based on his various
observations of the vehicle and the rental agreement; his suspicion increased after
Follman and Britton provided divergent explanations of their travel plans. Yet—even
though his jurisdiction apparently relied on a drug dog assigned to several counties in
central Kansas—the deputy did not request the drug dog from the outset. Instead, he used
various stalling tactics to see if he could obtain Follman's consent to search the truck.
And even when Follman initially refused consent, he did not request Canine Odie's
assistance; he only did so after several more minutes when Follman again refused to
consent to a search. As a result of this strategy, the deputy did not request the drug dog's
assistance until 30 minutes into the stop. And then, based on Odie's location, it took
another 50 minutes before the dog could arrive to investigate the deputy's suspicion. The
combination of these factors, which significantly prolonged the already extended duration
of the stop, rendered the detention in this case unreasonable.

Based on these circumstances, we agree with the district court's conclusion that
Britton's detention violated his rights under the Fourth Amendment to the United States
Constitution and Section 15 of the Kansas Constitution Bill of Rights. The State does not
argue any exception to the exclusionary rule that would allow the evidence obtained from
this unlawful detention to be admitted. Thus, the district court properly granted Britton's
motion to suppress.

Affirmed.