State v. Follman

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NOT DESIGNATED FOR PUBLICATION

No. 121,308

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

PARIS A. FOLLMAN,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed November 22,
2019. Affirmed.

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

Jennifer Lautz, of StrongPoint law, of South Hutchinson, for appellee.

Before MALONE, P.J., STANDRIDGE and WARNER, JJ.

PER CURIAM: During a routine traffic stop, a sheriff's deputy developed
reasonable suspicion that Paris Follman's truck contained drugs. The deputy employed
various investigatory tactics he had learned at a training seminar in an effort to prolong
the stop and gain Follman's consent to search the truck. But after 30 minutes, Follman
refused consent, and the deputy requested a drug dog. Because the dog was in another
county, this request extended the stop by another 50 minutes. The district court ruled that
the stop's duration—which lasted more than 80 minutes—combined with the dilatory
tactics the deputy used before requesting the dog's assistance rendered Follman's
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detention unreasonable, violating the Fourth Amendment to the United States
Constitution and Section 15 of the Kansas Constitution Bill of Rights. The court thus
suppressed the evidence seized after the drug dog's eventual alert. We affirm.

FACTUAL BACKGROUND

At 1:11 a.m. on May 19, 2018, Deputy Mikel Bohringer of the Reno County
Sheriff's Department pulled over a truck for speeding. The deputy asked the driver, Paris
Follman, for her license and vehicle registration. Follman, who identified herself as
Kayla Martin, could not provide a driver's license; instead, she gave the deputy a credit
card bearing the name Kayla Martin and a U-Haul rental agreement. The deputy—
employing tactics he learned at a two-day highway interdiction seminar—asked Follman
to come to his patrol car (where he said he had left his pen) while he filled out a traffic
warning. At the suppression hearing, the deputy stated he asked Follman to come to his
patrol car as part of a strategy to prolong the stop for a drug investigation.

During the encounter, the deputy noticed several indications that Follman might be
transporting drugs. First, the car had an Arizona license plate. This indicated drug activity
because western states are considered drug source states. Second, the car contained very
little luggage, which appeared inconsistent with his professional observations and
personal use of U-Hauls. Third, the rental agreement was suspicious: The agreement was
for a rental to be picked up in Rosemead, California, on May 14 and returned four hours
later. The vehicle was more than four days overdue and halfway across the country.
Finally, the car contained several open food containers; this was counter to his experience
with the cleanliness of rental vehicles and indicated they were not stopping often. The
deputy also noticed Follman appeared nervous throughout the encounter.

In his patrol car, the deputy obtained information from Follman needed to fill out a
traffic warning, but instead of writing this information on the warning form, he wrote her
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answers in a notebook. While transferring the information from the notebook to the
warning, he began asking questions unrelated to the traffic violation, questions Follman
was slow to answer. At 1:26 a.m.—15 minutes into the stop—the deputy ran Follman's
given pseudonym and date of birth for warrants. At the suppression hearing, the deputy
admitted he delayed calling dispatch with the name Follman had given so he could ask
her about her travel plans while filling out the warning. Under the guise of checking the
year of the rental car, he left his patrol car, opened the rental car's passenger door, and
used his flashlight to look inside. He also briefly questioned the passenger, Shane Britton.

At 1:30 a.m., the deputy advised Follman she was free to leave. But as Follman
was leaving the patrol car, Deputy Bohringer asked if she would answer additional
questions. She agreed and reentered the car. He asked whether she had any drugs and if
she would consent to a search of the rental car; Follman denied possessing drugs and did
not consent to a search. Bohringer then went to the rental car and questioned Britton; his
answers were inconsistent with answers Follman had given. At 1:38 a.m., the deputy
returned to the patrol car and informed Follman of Britton's answers and the deputy's
suspicions. He again asked for her consent to search the car, and she again refused.

At 1:41 a.m.—30 minutes into the stop—the deputy requested the assistance of a
drug dog. He advised Follman she was being detained and provided Miranda warnings.

Deputy Colt Pfautz, a canine handler with the Harvey County Sheriff's Office,
received Bohringer's request. Pfautz made the 60-mile trip to Bohringer's location in
approximately 45 minutes, arriving at 2:31 a.m.—now 80 minutes after the initial stop.
Three minutes later, Pfautz's dog, Odie, indicated the presence of drugs inside the rental
car. Upon searching the car, Bohringer discovered methamphetamine, marijuana, and
Follman's actual identification.

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The State charged Follman and Britton with various drug offenses. Follman
subsequently moved to suppress the drugs as evidence. The district court granted the
motion, finding the stop was unreasonable. Relying on Deputy Bohringer's dashcam
footage, the court found the deputy had reasonable suspicion to extend the initial traffic
stop based on the rental agreement, Follman's inability to provide a driver's license, and
her hesitant answers which conflicted with Britton's responses. But the court found the
detention to be unreasonable due to its duration and several actions by the deputy that the
court found to be unnecessary and dilatory. The court therefore suppressed the evidence
seized as a result of the search. 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, such a stop 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
Follman's detention violated her 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 Follman's
motion to suppress.

Affirmed.