State v. Garcia

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NOT DESIGNATED FOR PUBLICATION

No. 117,476

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TOMAS GARCIA JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed April 6, 2018.
Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before LEBEN, P.J., GARDNER, J., and BURGESS, S.J.

PER CURIAM: Tomas Garcia Jr. challenges the district court's denial of his motion
to suppress, contending that law enforcement officers did not have reasonable suspicion
to stop his vehicle. We affirm the district court.

Factual and procedural background

The facts underlying this case were established at the evidentiary hearing on
Garcia's motion to suppress by Master Deputy Brad Clover from the Douglas County
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Sheriff's Office. He testified that he responded to a report of a suspicious vehicle outside
of Lawrence, Kansas, in the early morning hours on January 2, 2016. At about 3 a.m., an
identified caller reported that a sedan had pulled into her driveway, backed out, parked on
the street for a while, and then headed east. The caller stated she was concerned because
there had been previous burglaries in the area, and her property had a second entrance
east of the main drive. A little over a month before this call, Clover had investigated a
burglary of a lawn care business less than 1/8 of a mile from the caller's residence.

While on the way to the location, Clover noticed a sedan turning around in a dead-
end road close to a landscaping business and within a mile of the caller's location.
Although he did not witness any traffic violations, various factors made him suspicious of
potential criminal activity: the previous burglary, the fact that the area was not well
traveled, the early hour, the proximity to another landscaping business, and the recent call
from an identified caller about a suspicious sedan. Accordingly, Clover stopped the
vehicle.

As Clover spoke with Garcia, he noticed an open container of alcohol in the back
seat and that Garcia displayed signs of intoxication. These included watery and bloodshot
eyes, slurred speech, difficulties communicating, and a strong smell of alcohol. When
Clover asked Garcia if he had been drinking Garcia responded affirmatively. Garcia then
took and failed field sobriety tests and was arrested. Clover searched the vehicle and
found a partially empty 750 milliliter bottle of liquor in the glove compartment. Garcia
was charged with driving under the influence, tampering with an ignition interlock
device, and transporting an open container.

The district court ruled that Clover had reasonable suspicion to initiate the traffic
stop. Accordingly, the district court denied Garcia's motion to suppress as well as
Garcia's subsequent motion for reconsideration.

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At his bench trial, Garcia stipulated to the facts presented at the preliminary
hearing and in the affidavit of probable cause but renewed his objection to the evidence
obtained from the traffic stop. The district court overruled that objection, convicted
Garcia of all three offenses, and sentenced him to 12 months' imprisonment with release
after 90 days and a $2,500 fine.

Garcia timely appeals, arguing solely that Clover lacked reasonable suspicion to
stop his vehicle.

Standard of review

When reviewing a district court's ruling on a motion to suppress evidence, we
review the factual underpinnings of that decision for substantial competent evidence and
the ultimate legal conclusion de novo. State v. Cleverly, 305 Kan. 598, 604, 385 P.3d 512
(2016). Substantial competent evidence is evidence that is factually and legally relevant
and sufficient for a reasonable person to rely upon it to support a conclusion. State v.
Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015). The State bears the burden to
demonstrate the lawfulness of the traffic stop. K.S.A. 22-3216(2); State v. Estrada-Vital,
302 Kan. 549, 556, 356 P.3d 1058 (2015).

Analysis

The Fourth Amendment to the United States Constitution and Section 15 of the
Kansas Constitution Bill of Rights protect individuals against unreasonable searches and
seizures. Cleverly, 305 Kan. at 604. A search or seizure performed without a warrant is
presumptively unreasonable unless an exception to the warrant requirement applies. 305
Kan. at 604. One such exception is an investigatory detention based on reasonable
suspicion. K.S.A. 22-2402; Terry v. Ohio, 392 U.S. 1, 18-19, 88 S. Ct. 1868, 20 L. Ed. 2d
889 (1968); State v. Bannon, 306 Kan. 886, 892-93, 398 P.3d 846 (2017). This Terry
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exception, which applies here, requires the officer conducting the stop to know of
"specific and articulable facts that create a reasonable suspicion the seized individual is
committing, has committed, or is about to commit a crime or traffic infraction." State v.
Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014).

To satisfy that reasonable suspicion test, an officer must have a minimum level of
objective justification for the stop. United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct.
1581, 104 L. Ed. 2d 1 (1989). That minimum level is considerably less than proof of
wrongdoing by a preponderance of the evidence. Bannon, 306 Kan. at 897. An appellate
court must not pigeonhole each factor as to innocent or suspicious appearances, but
instead determines whether the totality of the circumstances justifies the detention. State
v. Coleman, 292 Kan. 813, 817-18, 257 P.3d 320 (2011); State v. DeMarco, 263 Kan.
727, 734-35, 952 P.2d 1276 (1998). When evaluating the totality of the circumstances,
this court "should employ common sense and the ordinary human experience and should
accord reasonable deference to a law enforcement officer's ability to distinguish between
innocent and suspicious actions." Coleman, 292 Kan. at 818.

Reasonable suspicion "depends on the totality of circumstances in the view of a
trained law enforcement officer." State v. Martinez, 296 Kan. 482, 487, 293 P.3d 718
(2013). Looking at the totality of the circumstances while also taking into consideration
the experiences of a trained law enforcement officer "allows officers to draw on their
own experience and specialized training to make inferences from and deductions about
the cumulative information available to them that 'might well elude an untrained person.'
[Citations omitted.]" United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L.
Ed. 2d 740 (2002). But reasonable suspicion requires an officer to be able to articulate
more than an inchoate and unparticularized suspicion or hunch of criminal activity. State
v. Thomas, 291 Kan. 676, 688, 246 P.3d 678 (2011).

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Garcia challenges both the district court's factual findings and its legal
conclusions. He first contends the district court erred in finding that the events occurred
"in the country," because the evidence shows the call came from a location directly north
of Clinton Lake, less than five miles from the city limits of Lawrence, Kansas.

To support this claim, Garcia attaches to his appellate brief a screenshot from
Google Maps with three locations labeled: the location of the identified caller, the
location of Garcia's car when Clover first saw it, and the location of the stop. But this
map was not offered as evidence below and is not included in the record on appeal. We
do not usually admit evidence on appeal; we are generally limited to reviewing the
evidence offered below and included in the record on appeal. Cross v. Kansas Dept. of
Revenue, 279 Kan. 501, 513, 110 P.3d 438 (2005).

Garcia invited us during oral arguments to take judicial notice of the map. But
Garcia makes no argument about this issue and fails to show that the map is a matter
specified in K.S.A. 60-409. See K.S.A. 60-412(c) ("The reviewing court in its discretion
may take judicial notice of any matter specified in K.S.A. 60-409 whether or not
judicially noticed by the judge.") And the judicial notice issue was not briefed. An issue
not briefed by the appellant is deemed waived or abandoned. Superior Boiler Works, Inc.
v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).

Even if we took judicial notice of the map, however, the map fails to undermine
the district court's factual finding that the events—the call and the stop—occurred in the
country. As Garcia notes, the location is approximately five miles outside of the western
city limit of Lawrence and is north of a state park. Clover's testimony shows that the area
is not well traveled and that he saw no other vehicles off the highway. Further, the district
court judge sits in Douglas County so has the knowledge to make that statement. The
evidence before the district court supports the court's statement, and the map does not
contradict it.
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Garcia next argues that the district court erred in finding that his vehicle turned
"repeatedly." But the uncontradicted evidence of record shows that Garcia was seen
turning around or backing out at least twice—once by the identified caller in her
driveway and once by Clover in the dead-end road. The evidence thus supports the
district court's statement.

We find these two statements, as well as the district court's other factual findings,
to be supported by substantial competent evidence, that is "'evidence which possesses
both relevance and substance and which furnishes a substantial basis of fact from which
the issues can reasonably be resolved.' [Citation omitted.]" Wiles v. American Family Life
Assurance Co., 302 Kan. 66, 73, 350 P.3d 1071 (2015).

Garcia also attacks the district court's legal conclusion that reasonable suspicion
supported Clover's vehicle stop. Garcia argues that the conclusion is legally incorrect
because the caller's tip lacked sufficient reliability and Clover's stop was not based on
specific, articulable facts.

A traffic stop based on a tip is lawful when the tip is reliable. State v. Slater, 267
Kan. 694, 699-700, 986 P.2d 1038 (1999). Courts generally consider three factors in
determining whether a tip is reliable. First, a tip from an identified caller is considered
more reliable than one from an unidentified or anonymous caller. Here, the caller gave
her name and address to the dispatcher, and stated officers could contact her if necessary.
The tip came from an identified caller and is thus "high on the reliability scale." 267 Kan.
at 700.

Second, a tip may be considered more reliable when sufficient detail is given and
when the caller personally observed the activity at issue. Slater, 267 Kan. at 702-03.
Here, the caller personally observed the activity, called to report it, and sufficiently
described the event—a "sedan" pulled into the caller's driveway, backed out, then parked
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for a few minutes before heading east. Although such acts are not illegal, the caller's
information helped provide Clover, a trained and experienced law enforcement officer,
with reasonable suspicion that something more may be going on. See State v. Moore, 283
Kan. 344, 354-55, 154 P.3d 1 (2007) (finding innocent activity can provide reasonable
suspicion to trained law enforcement officers).

Third, corroborating information and observations from a law enforcement officer
raise the reliability level of a tip. Slater, 267 Kan. at 703. "An officer may corroborate the
tip by observing illegal activity or by finding the person and vehicle and the location as
substantially described by the informant." 267 Kan. at 703. The caller described the
vehicle's movements and described it as a sedan heading east. When Clover responded to
the area approximately 12 minutes later, the only car he saw was a sedan less than a mile
from the caller's address. According to the map Garcia provided on appeal, Clover
stopped Garcia's car east and north of the caller's location. The description of the vehicle,
the location, and the actions of the car were sufficiently corroborated, further adding to
the tip's reliability. Based on our consideration of all three factors, we find the tip was
highly reliable.

A tip of suspicious, but not criminal, activity alone is not enough to support
reasonable suspicion. State v. Chapman, 305 Kan. 365, 372, 381 P.3d 458 (2016); State v.
McKeown, 249 Kan. 506, 514-15, 819 P.2d 644 (1991). But "the location, time of day,
previous reports of crime in the area, and furtive actions of the suspects may well justify
a stop." State v. Kirby, 12 Kan. App. 2d 346, 353, 744 P.2d 146 (1987), disapproved of
on other grounds in State v. Jefferson, 297 Kan. 1151, 310 P.3d 331 (2013).

Many of those factors are present here—the reliable tip regarding a suspicious
vehicle, the officer's swift corroboration of details from the call, the recent burglary at a
nearby location, the early hour, the meandering path of the vehicle (turning around at the
caller's residence and turning around again at the nearby dead-end road), and the fact that
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the area generally is rural or not well traveled. We find it particularly significant that the
caller related she was concerned about the sedan because of previous burglaries in the
area, that Clover had recently investigated a burglary of a lawn care business less than 1/8
of a mile from the caller's residence, and that Clover saw Garcia's sedan turning around
on a dead-end road near a landscaping business.

Based on the totality of the circumstances, we find the stop was based on specific,
articulable facts that gave rise to reasonable suspicion of a crime. The district court
properly found that Clover had a sufficient basis to conduct a Terry stop and thus
properly denied Garcia's motion to suppress.

Affirmed.