State v. Cox

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NOT DESIGNATED FOR PUBLICATION

No. 116,256

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JOHN ERIC COX, JR.,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed September 1,
2017. Affirmed.

Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellant.

Sam S. Kepfield, of Hutchinson, for appellee.

Before BRUNS, P.J., MCANANY and BUSER, JJ.

BUSER, J.: The State of Kansas appeals the suppression of evidence seized during
a search of John Eric Cox, Jr. A law enforcement officer stopped Cox as he was walking
along the side of a street in Hutchinson. Although the area was dark, Cox did not give
any indication that he needed assistance from the officer. However, the officer turned his
vehicle around and parked in front of Cox. After obtaining Cox's name, the officer
transmitted the information to dispatch and discovered an outstanding warrant. As a
result, the officer placed Cox under arrest and found that he had a small bag of marijuana,
a metal grinder, and a smoking pipe in his possession. Prior to trial, the district court
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granted a motion to suppress the evidence, finding that the officer's encounter with Cox
was not voluntary and that the stop was not for public safety. Because we find that the
factual determinations made by the district court are supported by substantial evidence
and support the legal conclusion reached, we affirm the suppression of the evidence
seized following Cox's arrest.

FACTS

On the night of October 24, 2015, Officer Truan of the Hutchinson Police
Department was on patrol. At approximately 11:20 p.m., he saw a man walking alone on
the side of the street. Although Officer Truan did not suspect the man of committing any
crime, he turned his patrol vehicle around and drove back toward the man. Officer Truan,
who was in a marked patrol vehicle, stopped in front of the man and activated his
warning or wig wag lights.

Officer Truan, who was wearing his police uniform, stepped out of his patrol
vehicle and started asking the man questions. The man told the officer that he was
walking to a friend's house. Officer Truan then asked the man his name, and he identified
himself as John Cox. After obtaining this information, the officer immediately called
dispatch to check for outstanding warrants. The dispatcher reported that there was a
possible warrant for Cox. Evidently, because Cox was putting his hands in his pockets,
Officer Truan placed him in handcuffs while the dispatcher was attempting to confirm the
warrant.

The dispatcher confirmed that Cox had an outstanding municipal court warrant.
Officer Truan then placed Cox under arrest and patted him down. In doing so, the officer
found a small amount of marijuana and a smoking pipe in Cox's pocket. Officer Truan
also found a small metal grinder in Cox's backpack with what he believed to be marijuana
residue in it.
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The State charged Cox with possession of marijuana in violation of K.S.A. 2015
Supp. 21-5706(b)(3) and possession of drug paraphernalia in violation of K.S.A. 2015
Supp. 21-5709(b)(2). Prior to trial, Cox filed a motion to suppress, arguing that Officer
Truan had illegally seized him. The district court held an evidentiary hearing at which it
viewed a video of the encounter on the night of October 24, 2015. At the conclusion of
the hearing, the district court granted the motion to suppress.

In determining that the encounter was not voluntary and that Cox was improperly
detained, the district court relied on the video of the encounter. Unfortunately, we do not
have that opportunity because the video is not included in the record on appeal. We note
that the party bringing the appeal, in this case the State, has the obligation to furnish a
record sufficient to demonstrate any claimed error. Kelly v. VinZant, 287 Kan. 509, 526,
197 P.3d 803 (2008).

After reviewing the video, the district court found:

"[Officer Truan] stopped the [patrol] car and the way he stopped it no reasonable person
would think they were free to leave. The court viewed the video. The overhead lights
may not be on but there clearly are flashing lights occurring and under the circumstances
and what I saw including testimony, no reasonable person would think that they [would
be] free to leave.

"The officer appears to ask for the name and then immediately, almost
immediately shines the flashlight in [Cox's] pocket and then takes out his clipboard and is
writing down information, which the evidence to this court indicates that in fact we had
no concerns about safety or welfare at that time. We were, in fact, making an
investigatory stop."

Thereafter, the State timely filed this appeal.


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ANALYSIS

On appeal, the State first contends that Officer Truan's encounter with Cox was
voluntary and, as such, he was not improperly detained. We apply a bifurcated standard
when reviewing a district court's decision on a motion to suppress. We first review the
factual underpinnings of the district court's ruling to determine whether there was
substantial competent evidence. We then review the legal conclusions reached by the
district court under a de novo standard. In reviewing the factual findings, we do not
reweigh the evidence or assess the credibility of witnesses. State v. Patterson, 304 Kan.
272, 274, 371 P.3d 893 (2016). Because this case comes before us following a ruling on a
motion to suppress evidence, the State bears the burden of proving the lawfulness of its
search and seizure. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014).

The Fourth Amendment to the United States Constitution—made applicable to the
states through the Fourteenth Amendment—and Section 15 of the Kansas Constitution
Bill of Rights prohibit unreasonable searches and seizures. A warrantless search is per se
unreasonable unless it falls within a recognized exception. State v. Ryce, 303 Kan. 899,
913, 368 P.3d 342 (2016); see State v. Baker, 306 Kan. ___, 395 P.3d 422, 427 (2017).
The exclusionary rule is a judicially created remedy that prohibits the introduction of
evidence obtained in an unreasonable search and seizure in order to deter future
violations. See Davis v. United States, 564 U.S. 229, 236-38, 131 S. Ct. 2419, 180 L. Ed.
2d 285 (2011); State v. Powell, 299 Kan. 690, 694-95, 325 P.3d 1162 (2014).

We turn first to the nature of Officer Truan's initial contact with Cox. Encounters
with law enforcement officers generally fall into four categories: (1) voluntary or
consensual encounters; (2) investigatory detentions; (3) public safety stops; and (4)
arrests. State v. Cleverly, 305 Kan. 598, 605, 385 P.3d 512 (2016). Voluntary encounters
are not considered seizures and do not trigger the protections of the Fourth Amendment.
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On the other hand, investigatory stops require reasonable suspicion of criminal activity.
State v. Kermoade, 33 Kan. App. 2d 573, 579, 105 P.3d 730 (2005).

An encounter between law enforcement and an individual will be deemed
consensual if under the totality of the circumstances the officer's conduct conveys to a
reasonable person that the person is free to terminate the encounter. Reiss, 299 Kan. at
298-99. This analysis depends on the voluntary nature of the stop and search. If a court
finds that a seizure has occurred, it must then determine whether that seizure was
reasonable. 299 Kan. at 297. When making this determination, courts "balanc[e] 'the
public interest and the individual's right to personal security free from arbitrary
interference by law enforcement officers.' [Citations omitted.]" 299 Kan. at 297.

As indicated above, the district court reviewed a video of the encounter between
Officer Truan and Cox. Moreover, the district court heard Officer Truan's testimony.
After weighing the evidence, the district court concluded that the encounter was not
voluntary. In particular, the district court found that from "the way [Officer Truan]
stopped [Cox] no reasonable person would think they were free to leave." Referring to
the video, the district court noted that "there clearly are flashing lights occurring" and the
officer "almost immediately shines [his] flashlight in [Cox's] pocket and then takes out
his clipboard and is writing down information, which the evidence to this court indicates
that in fact we had no concerns about safety or welfare at that time." Thus, the district
court determined that Officer Truan was "in fact, making an investigatory stop."

Although the State disagrees with the district court's conclusion, we are not to
reweigh the evidence or to determine credibility. Based on our review of the record, we
find substantial evidence to support the district court's finding that Cox was not free to
leave and that there was no reasonable suspicion for Officer Truan to detain him.
Obviously, the district court did not find the officer's testimony that he was performing a
public safety stop to be credible after comparing it with the video. Thus, we will not
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replace our judgment for that of the district court regarding the factual determination that
this was an investigatory stop without reasonable suspicion of criminal activity.

The State also contends that even if the district court did not err in concluding that
this was an investigatory stop, the evidence found by Officer Truan should still be
admitted because it would have been discovered anyway. An exception to the
exclusionary rule is the inevitable discovery doctrine, which permits the admission of
evidence that would have been discovered legally even if obtained illegally. See Utah v.
Strieff, 579 U.S.___, 136 S. Ct. 2056, 2059, 195 L. Ed. 2d 400 (2016). The State must
prove by a preponderance of the evidence that "'the unlawfully obtained evidence would
have ultimately or inevitably been discovered by lawful means.'" Baker, 395 P.3d at 427
(quoting State v. Walker, 283 Kan. 587, Syl. ¶ 8, 153 P.3d 1257 [2007]).

Specifically, the State argues that, under Strieff, the discovery of an outstanding
warrant for Cox was an intervening circumstance sufficient to attenuate the connection
between Officer Truan's unlawful stop and the discovery of marijuana on Cox's person.
However, at the suppression hearing, the district court found that the inevitable discovery
doctrine set forth in Strieff did not apply to the facts of this case, stating:

"[I]f I consider the three factors in the Strieff opinion I find the initial stop was not
justified, that the defendant was in custody. A reasonable person would think they were
in custody. And certainly the temporal proximity counts against the state and the purpose
of the officer's misconduct was solely for that purpose, in the court's view, was to be able
to run the defendant and run a record check and see what possible illegal activities . . . he
could find when there's absolutely no indication of anything improperly happening."

In Strieff, the United States Supreme Court found an outstanding arrest warrant
was "a critical intervening circumstance that . . . broke the causal chain between [an]
unconstitutional stop and the discovery of [incriminating] evidence." 136 S. Ct. at 2063.
In that case, a law enforcement officer conducting surveillance on a suspected drug house
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noticed the defendant exit the house and walk away. The officer followed and eventually
confronted the defendant in a nearby parking lot. Thereafter, the officer asked for, and
received, the defendant's identification card and conveyed the information to the police
dispatcher. A warrant check revealed the defendant had an outstanding warrant and he
was placed under arrest. During a search incident to arrest, the officer discovered drugs
and drug paraphernalia on the defendant's person.

Here, the district court found that the first Strieff factor—proximity in time
weighed in favor of the defendant. However, the district court found that the second
Strieff factor—intervening circumstances—weighed in the State's favor. The deciding
factor, according to the district court, was the fact that Officer Truan's conduct was far
more flagrant than the officer's conduct in the Strieff case. Specifically, based on a review
of the video of the encounter and on Officer Truan's testimony, the district court found
that the officer improperly stopped Cox "to be able to run the defendant and run a record
check and see what possible illegal activities . . . he could find when there's absolutely no
indication of anything improperly happening."

Kansas courts often examine "'an officer's regular practices and routines, an
officer's reason for initiating the encounter, the clarity of the law forbidding the illegal
conduct, and the objective appearance of consent.'" State v. Moralez, 297 Kan. 397, 416,
300 P.3d 1090 (2013). Here, the district court did not find Officer Truan's testimony for
the stated purpose of the stop—for Cox's safety—to be credible. Moreover, the district
court noted that based on its review of the video of the encounter, Officer Truan's
conduct throughout the stop showed that he was conducting an investigatory stop from
the outset and that he almost immediately began to ask questions. In addition, Officer
Truan had no reason to believe that Cox needed help or that he was involved in criminal
activity. Finally, as indicated above, the nature of the stop gave Cox no reason to believe
that he was free to leave. Thus, we find substantial evidence in the record to support the
district court's conclusion that Officer Truan's conduct toward Cox was flagrant.
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Therefore, despite the presence of an outstanding warrant, we conclude that this case is
distinguishable from the factual scenario presented in Strieff.

Affirmed.