State v. Hockmuth-Powell

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NOT DESIGNATED FOR PUBLICATION

Nos. 118,247
118,280

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

AMANDA SUE HOCKMUTH,
Appellee.


STATE OF KANSAS,
Appellant,

v.

AMBER RENEE CLINE,
Appellee.


MEMORANDUM OPINION

Appeal from Barton District Court; RON SVATY, judge. Opinion filed April 13, 2018. Vacated
and remanded with directions.

Douglas A. Matthews, assistant county attorney, Näna N. Brammer, assistant county attorney,
Amy J. Mellor, county attorney, and Derek Schmidt, attorney general, for appellant.

Joel B. Jackson, of Great Bend, for appellee Amanda Sue Hockmuth.

Donald E. Anderson II, of Law Office of Donald E. Anderson II, LLC, of Ellinwood, for appellee
Amber Renee Cline.

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Before BRUNS, P.J., PIERRON and POWELL, JJ.

POWELL, J.: In this consolidated appeal, the State of Kansas seeks interlocutory
review of two separate district court orders suppressing evidence seized following two
separate vehicle searches of cars driven by Amanda Sue Hockmuth and Amber Renee
Cline. In Hockmuth's case, the district court granted the motion to suppress because it
found that the officers lacked a reasonable and articulable suspicion to conduct a dog
sniff during the traffic stop. In Cline's case, the district court granted the motion to
suppress without making any findings at all. The State argues the district court should not
have suppressed the evidence because the dog sniffs did not unreasonably prolong the
traffic stops. Unfortunately, because the district court failed to make sufficient factual and
legal findings to allow for meaningful appellate review of the propriety of its suppression
orders, we vacate its orders and remand both cases for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

A. State v. Hockmuth

In January 2017, the State charged Hockmuth with one count of misdemeanor
possession of marijuana and one count of driving without headlamps when required.
Prior to trial, Hockmuth filed a motion to suppress with the district court, arguing the
officers unreasonably extended the scope and duration of the traffic stop by requesting a
K-9 unit to perform a dog sniff on her vehicle without any reasonable suspicion of illegal
criminal activity. Instead of requesting an evidentiary hearing, the parties stipulated to the
admission of the videotape of the stop, the police reports of the officers involved, what
appears to be the arrest or charging affidavit, and the following facts:

"1. Sergeant James Bachar and Corporal Shane Becker are employed by the
Great Bend Police Department.
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"2. Bachar and Becker are properly trained and certified as law enforcement
officers.

"3. On October 1, 2015, Bachar was patrolling the 1200 Block of Main
Street in Great Bend, Kansas, 67530, which is located in Barton County.

"4. At approximately 11:55 p.m., Bachar observed a vehicle operating with
no headlights or taillights illuminated.

"5. The defendant was the driver and only occupant of the vehicle.

"6. At 11:58 p.m., Bachar initiated a stop of the vehicle.

"7. Bachar request[ed] and received the defendant's driver's license and
proof of insurance.

"8. Bachar requested that Dispatch run a computer check on the defendant
and her driver's license.

"9. Bachar began writing a citation for the defendant's traffic violation.

"10. Bachar knew the defendant was a user of illegal narcotics.

"11. Bachar also had reliable information that the defendant was involved
with persons who distribute methamphetamine.

"12. At the time of the stop, no other facts were known to the officer that
would give rise to the belief that the defendant had illegal narcotics in her car at that time.

"13. At 11:58 p.m., Bachar requested via radio for Becker and his Police
Service Dog, Lazar, to respond to his location.

"14. Becker and Lazar arrived at 12:00 a.m.

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"15. Bachar had not yet completed the citation at this time.

"16. Becker requested that the defendant exit the vehicle for safety reasons,
while Bachar continued to fill out the citation.

"17. Becker and Lazar[] are properly trained and certified to perform drug
detection sniffs.

"18. At 12:03 a.m., Becker walked Lazar around the vehicle for a sniff.

"19. At 12:03 a.m., Lazar alerted to the odor of a controlled substance inside
the vehicle.

"20. According to officer body camera footage, the dog sniff lasted
approximately 35 seconds.

"21. At the time that Lazar alerted, Bachar had just finished discussing with
the defendant, at her [initiation], the lights on the vehicle and her reason for not realizing
that they were off.

"22. Bachar also informed the defendant that her driver's side mirror needed
to be fixed because it was not in compliance with the law.

"23. At the time that Lazar alerted, Bachar had not yet explained or had the
defendant sign the citation.

"24. The officers searched the vehicle."

The district court granted Hockmuth's motion to suppress in a very brief written
order, finding

"that Great Bend Police Department Officers involved in this matter did not have
sufficient articulable suspicion to justify calling for the involvement of a drug sniffing
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dog. The Court finds that mere knowledge that [Hockmuth] had been in the past into
illegal narcotics and that the officers believed they had reliable information that she was
involved with other persons who distributed methamphetamine was insufficient."

The district court made no other factual or legal findings in its order.

B. State v. Cline

In February 2017, the State charged Cline with two misdemeanor counts of
possession of controlled substances, one count of possession of drug paraphernalia, and
one count of operating her vehicle with a defective registration lamp. Prior to trial, Cline
filed a motion to suppress, arguing that the traffic stop—conducted by the same two
officers who stopped/searched Hockmuth's vehicle—was merely a pretext to instead
conduct a drug investigation of Cline.

At the evidentiary hearing on Cline's motion, Becker testified that at 10:23 p.m. on
August 23, 2016, he saw a vehicle driving without a working tag light in Barton County,
Kansas. Becker pulled over the vehicle several blocks later and recognized the driver as
Cline. Becker testified that he had had past dealings with Cline that indicated she was a
user of marijuana or illegal narcotics. However, Becker admitted that he had no idea
whether Cline had illegal narcotics in her vehicle that night.

After initiating the traffic stop, Becker informed Cline of his reason for stopping
her and requested her identification and proof of insurance. Becker testified that while he
was talking with Cline, Bachar arrived at the scene a few minutes later. Although Becker
stated that he had not requested Bachar to come to the scene, officers tended to back up
each other during night-time traffic stops for officer safety. Becker asked Bachar to
complete a check on Cline's driver's license and to begin filling out a warning citation for
the tag light violation.

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Bachar testified that he had not completed the driver's license check on Cline and
had not finished writing the citation when Becker conducted the dog sniff of Cline's car.
The first video of the traffic stop included in the record on appeal does not show Becker's
initial interaction with Cline. Rather, it appears to show Bachar arriving at the scene and
does not contain any audio until one minute into the recording. Between 1:07 and 1:30
minutes from the beginning of the recording, the audio recorded Bachar requesting from
dispatch a driver's license check on Cline. The camera is then moved to show Cline's
stopped car. Around 1:52 to 2:30 minutes, the video shows Becker walking Lazar, the
drug dog, around Cline's car. Becker testified that Lazar alerted to the presence of a
controlled substance at the driver's side door. Bachar testified that he had not completed
the citation when Lazar indicated. Between 2:54 to 3:15 minutes, the audio of the video
recording reveals that dispatch contacted Bachar with the results of the driver's license
check.

Becker testified that he then asked Cline to exit her car so that he could conduct a
search. Becker testified that the subsequent vehicle search uncovered a small pipe with a
green leafy vegetation on it and two green pills. Becker stated that the green leafy
vegetation field tested positive for marijuana and that a later test confirmed the green pills
were a controlled substance.

Cline submitted a supplemental memorandum of law in support of her motion to
suppress, arguing that the district court should suppress the evidence and find that "the
officer must have some reasonable suspicion to run the drug dog during a routine traffic
stop," regardless of whether it measurably prolongs the traffic stop. In a very brief written
order, the district court granted Cline's motion to suppress without making any findings
of fact or conclusions of law. The order read:

"WHEREUPON, the Court after taking the matter under advisement in order to
review video of the traffic stop and allow for both parties to submit written closing finds
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that the defendant's motion shall be granted and all evidence obtained from the seizure of
the defendant shall be suppressed."

The State timely seeks interlocutory review of these suppression orders.

DID THE DISTRICT COURT ERR BY GRANTING THE MOTIONS TO SUPPRESS?

The State argues that the district court erred in suppressing the evidence in both
cases because the Fourth Amendment to the United States Constitution does not require
officers to have a reasonable suspicion to conduct a dog sniff during a lawful traffic stop.

"'When reviewing a district court's decision on a motion to suppress, we bifurcate
our analysis, first assessing whether the factual findings below are supported by
substantial competent evidence and then applying a de novo standard to the ultimate legal
conclusion to be drawn from those facts.' The defendant carries the burden of establishing
the facts necessary to support his or her suppression motion in the district court.
However, the State bears the burden of proving the lawfulness of a search and seizure.
[Citations omitted.]" State v. Keenan, 304 Kan. 986, 993, 377 P.3d 439 (2016).

When the material facts are not in dispute, "the suppression issue simply presents a
question of law subject to de novo review." State v. Cleverly, 305 Kan. 598, 604, 385
P.3d 512 (2016).

The Fourth Amendment protects the "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 protections from unlawful
searches and seizures as the Fourth Amendment. State v. Neighbors, 299 Kan. 234, 239,
328 P.3d 1081 (2014). A traffic stop is a seizure under the Fourth Amendment "when a
law enforcement officer displays authority and restrains an individual's liberty by
stopping a vehicle on a public roadway." State v. Jones, 300 Kan. 630, 637, 333 P.3d 886
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(2014). "[F]or a law enforcement officer's seizure of a citizen to be constitutionally
reasonable, the officer must 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." 300 Kan. at 637. However, an officer's stop of an individual is
not invalid simply because it was a pretext for a drug search so long as a traffic violation
actually occurred. Jones, 300 Kan. at 638.

A seizure justified on the basis of a traffic infraction should "'resemble, in duration
and atmosphere, the kind of brief detention authorized in Terry.' [Citations omitted.]" 300
Kan. at 639. In fact, "'[a] seizure that is justified solely by the interest in issuing a
warning [or traffic] ticket to the driver can become unlawful if it is prolonged beyond the
time reasonably required to complete that mission.' Illinois v. Caballes, 543 U.S. 405,
407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005)." Jones, 300 Kan. at 639-40.

The permissible duration of a traffic stop includes the time it takes for the officer
to complete the ordinary inquiries incident to a traffic stop and to address related officer
safety concerns. The "reasonableness of a [traffic stop] seizure . . . depends on what the
police in fact do." Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609, 1616, 191
L. Ed. 2d 492 (2015). "If an officer can complete traffic-based inquiries expeditiously,
then that is the amount of 'time reasonably required to complete [the stop's] mission.'
Caballes, 543 U.S. at 407." 135 S. Ct. at 1616. Moreover, "[b]ecause addressing the
infraction is the purpose of the stop, it may 'last no longer than is necessary to effectuate
th[at] purpose.' Authority for the seizure thus ends when tasks tied to the traffic infraction
are—or reasonably should have been—completed. [Citations omitted.]" 135 S. Ct. at
1614.

In Rodriguez, the United States Supreme Court expressly stated that the ordinary
inquiries incident to a traffic stop include "checking the driver's license, determining
whether there are outstanding warrants against the driver, and inspecting the automobile's
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registration and proof of insurance." 135 S. Ct. at 1615. Similarly, our Supreme Court has
stated that:

"[T]he legitimacy of the duration of a traffic stop is measured by the time it takes for an
officer to ask for, obtain, and record the driver's license, proof of insurance, and vehicle
registration; run a computer check; and issue a citation. As a general principle, once the
officer determines that the driver has a valid license and the purpose for the traffic stop
has ended, the driver must be allowed to leave without further delay. [Citations omitted.]"
Jones, 300 Kan. at 640.

But, "[a]n officer's inquiries into matters unrelated to the justification for the
traffic stop . . . do not convert the encounter into something other than a lawful seizure,
so long as those inquiries do not measurably extend the duration of the stop." Arizona v.
Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009); Jones, 300 Kan. at
640.

With regard to dog sniffs, the Rodriguez Court held that "a dog sniff conducted
during a lawful traffic stop does not violate the Fourth Amendment's proscription of
unreasonable seizures." 135 S. Ct. at 1612; Caballes, 543 U.S. at 408-09. In Caballes, the
United States Supreme Court explained that because a person has no legitimate privacy
interest in searches which only reveal the location of contraband, the officers do not need
reasonable suspicion to conduct an exterior dog sniff of a vehicle during a lawful traffic
stop. See 543 U.S. at 408-10; see also State v. Barker, 252 Kan. 949, 957, 850 P.2d 885
(1993) ("[A] drug dog's sniff of the exterior of a vehicle is not a search for the purposes
of the Fourth Amendment."). A dog sniff is not an ordinary inquiry incident to a traffic
stop but "a measure aimed at 'detect[ing] evidence of ordinary criminal wrongdoing.'"
Rodriguez, 135 S. Ct. at 1615. "The critical question . . . is not whether the dog sniff
occurs before or after the officer issues a ticket, . . . but whether conducting the sniff
'prolongs'—i.e., adds time to—'the stop.'" (Emphasis added.) 135 S. Ct. at 1616; see State
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v. Lewis, 54 Kan. App. 2d 263, 271, 399 P.3d 250 (2017), rev. denied 307 Kan. ___
(December 22, 2017).

Relying upon our court's decision in State v. Wilson, No. 117,125, 2017 WL
3948450 (Kan. App. 2017) (unpublished opinion), the State argues we should find that
the officers did not unreasonably prolong the traffic stops, reverse the district court's
suppression orders, and remand both cases for trial.

Unlike in the present cases, however, while the district court in Wilson expressly
found that the traffic stop was not unreasonably prolonged, the district court suppressed
the evidence anyway after concluding that the officers lacked a reasonable suspicion to
justify conducting the dog sniff during the traffic stop. The key finding missing from the
district court's suppression orders in both cases here is whether the traffic stops were
unreasonably prolonged.

The State asks us to validate the searches as lawful, but our Supreme Court has
declared that "the absence of factual findings in the district court proceeding interferes
with [the appellate court's] analytical model, because appellate courts do not make their
own factual findings. Rather, appellate courts only review those factual findings which
have been made by the district courts." State v. Estrada-Vital, 302 Kan. 549, 555, 356
P.3d 1058 (2015). Appellate courts are limited to reviewing a district court's factual
findings on a motion to suppress for substantial evidence, normally, giving "great
deference to the factual findings of the district court." State v. Talkington, 301 Kan. 453,
461, 345 P.3d 258 (2015). But "[w]hen the record on review does not support a
presumption that the district court found all the facts necessary to support the judgment,
this court will remand the case for additional findings and conclusions." State v. Vaughn,
288 Kan. 140, 143, 200 P.3d 446 (2009).

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A. Hockmuth

Generally, "if the material facts are not in dispute, the suppression issue simply
presents a question of law subject to de novo review." Cleverly, 305 Kan. at 604.
"Nevertheless, an appellate court's de novo review can only be based on factual findings
made by the district judge. An appellate court cannot resolve disputed facts." Jones, 300
Kan. at 643.

In Hockmuth's case, the parties stipulated that Bachar stopped Hockmuth's vehicle
because she did not have her headlights turned on. Although the lawfulness of the stop is
not at issue, the reason for the stop is relevant to the question of how much time was
necessary to complete the mission of issuing a citation or ticket for the violation. See
Rodriguez, 135 S. Ct. at 1614 (the "tolerable duration of police inquiries in the traffic-
stop context is determined by the seizure's 'mission'"). The State argues we should find
the seizure lawful on appeal because the dog sniff did not unreasonably prolong the
traffic stop as Lazar alerted only five minutes into the traffic stop and Bachar had not
completed issuing the citation. But Hockmuth argues the officers prolonged the traffic
stop by taking the time to request the K-9 unit.

As stated above, our determination of whether a traffic stop seizure is reasonable
depends on what the officers actually did during the stop. The time it takes for the
officers to complete the traffic stop in relation to the dog sniff is not necessarily
dispositive. In fact, the United States Supreme Court rejected the government's argument
in Rodriguez that officers may buy more time to conduct unrelated tasks

"so long as the officer is reasonably diligent in pursuing the traffic-related purpose of the
stop, and the overall duration of the stop remains reasonable in relation to the duration of
other traffic stops involving similar circumstances. . . . The critical question . . . is not
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whether the dog sniff occurs before or after the officer issues a ticket, . . . but whether
conducting the sniff 'prolongs'—i.e., adds time to—'the stop.'" 135 S. Ct. at 1616.

Given the district court's limited findings and failure to determine whether the
officers unreasonably prolonged the traffic stop to conduct the dog sniff, we find it
impossible to determine the propriety of the dog sniff of Hockmuth's car based upon the
record before us. Although the parties stipulated to the facts here, the parties did not
stipulate to, and the district court did not make, a factual finding on when dispatch
returned the results of Bachar's requested computer and driver's license check on
Hockmuth. The district court also did not make any factual findings on whether Bachar
had completed, or reasonably should have completed, the traffic investigation before or
after Bachar's request for the K-9 unit and when the K-9 unit performed the dog sniff on
Hockmuth's car.

While it may be true that the officers lacked reasonable suspicion to conduct the
dog sniff of Hockmuth's car, the district court erred in suppressing the evidence based on
this legal conclusion because reasonable suspicion was not required to justify a dog sniff
during a lawful traffic stop. Because the record on appeal does not support the
presumption that the district court found all the facts necessary to support an implicit
legal conclusion that the officers prolonged the traffic stop, we vacate the district court's
order suppressing the evidence obtained against Hockmuth and remand the case to the
district court for further findings and the taking of further evidence, if necessary. See
Vaughn, 288 Kan. at 143. Specifically, the district court needs to make factual findings
and conclusions of law regarding the overall duration and reasonableness of the stop,
including—as outlined above—determining when dispatch returned the results of the
computer and driver's license check on Hockmuth. Additionally, the district court must
determine whether the traffic stop was, or reasonably should have been, completed when
Bachar requested the K-9 unit and when the K-9 unit performed the dog sniff.

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B. Cline

In Cline's motion to suppress, the parties did not stipulate to the facts. Rather, the
district court held a hearing on the motion and admitted videos and audio recordings of
the traffic stop. But, in its very brief written order granting Cline's motion to suppress, the
district court failed to make any findings whatsoever, including whether the dog sniff
may have unreasonably prolonged the duration of the traffic stop.

Cline argued before the district court that it should suppress the evidence because
the officers needed but lacked a reasonable, articulable suspicion to justify a dog sniff
even if the dog sniff did not unreasonably prolong the traffic stop. Before us, Cline
concedes that the officers did not unreasonably prolong the traffic stop to conduct the dog
sniff, and the State seizes upon this concession to argue that we should reverse the district
court's suppression order and remand the case for trial.

As already explained, the law does not require reasonable suspicion to justify a
dog sniff. While law enforcement may conduct a drug dog sniff during a lawful traffic
stop so long as it does not unreasonably prolong the stop, central to determining whether
the dog sniff prolonged the traffic stop is whether the officer had completed the ordinary
inquiries incident to the traffic stop. See Rodriguez, 135 S. Ct. at 1614-16.

Here, the district court made no factual findings whatsoever regarding the parties'
presentation of the evidence. Although the record on appeal contains the transcript of the
hearing and the video and audio recordings of the traffic stop, the record on appeal does
not support the presumption that the district court found all the facts necessary to support
its judgment that the officers prolonged the traffic stop. We therefore vacate the district
court's order suppressing the evidence obtained against Cline and remand the case to the
district court for further findings and the taking of further evidence, if necessary. See
Vaughn, 288 Kan. at 143. Specifically, the district court needs to make factual findings
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and conclusions of law regarding the overall duration and reasonableness of the stop and
determine when the officers requested—and when dispatch returned—Cline's driver's
license check in relation to when Becker conducted the dog sniff on her vehicle.

The district court's suppression orders are vacated, and the cases are remanded for
further proceedings consistent with this opinion.