State v. Lutz

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NOT DESIGNATED FOR PUBLICATION

No. 117,496

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRIAN JOSHUA LUTZ,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed June 15, 2018.
Affirmed.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., HILL and BUSER, JJ.

PER CURIAM: The United States Supreme Court has held a dog sniff of a vehicle
during a traffic stop is constitutional as long as the duration of the stop does not exceed
the time it takes to complete the ordinary objectives of the traffic stop. Rodriguez v.
United States, 575 U.S. ___, 135 S. Ct. 1609, 1615-16, 191 L. Ed. 2d 492 (2015). Here,
Topeka police officers observed a vehicle commit a traffic infraction and initiated a
traffic stop. The driver was slow to respond. Backup officers were called in, including a
canine unit. While one officer completed writing the warning citation for the driver, the
other officers began removing the vehicle occupants for a dog sniff of the vehicle. When
an officer opened Brian Joshua Lutz' door he observed a marijuana grinder in the door
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pocket. The dog sniff was called off, the vehicle searched, and drugs and drug
paraphernalia were located.

Brian moved to suppress the evidence, arguing that officers unlawfully extended
the duration of the traffic stop to initiate the dog sniff. The district court denied the
motion finding that one officer was still working on completing the warning citation
while the other officers began the process for the dog sniff. As a result, the duration of
the traffic stop was not extended when the marijuana grinder was located. We agree and
affirm.

FACTUAL AND PROCEDURAL HISTORY

Topeka Police Officers Brandon Austin and Scott Sinsel were surveilling a home
because of complaints of drug activity. Austin was also acting as a field training officer
for Sinsel. The officers saw a vehicle approach the house and leave shortly thereafter.
Austin decided to follow the vehicle.

After following the vehicle, Austin observed the vehicle fail to signal a lane
change. Austin activated his emergency lights to stop it. The vehicle slowed to a stop,
then continued for a short distance, and then fully stopped. Austin requested backup
because of the way the driver of the vehicle acted after the emergency lights were
activated, and because there were three individuals in the vehicle. Austin met with the
driver of the vehicle, Robin Lutz, informed her of the reason for the stop, and requested
her driver's license. Austin instructed Sinsel to retrieve the front passenger's driver's
license because he noticed he did not have a seatbelt on. The front passenger was Robin's
brother, Brian Lutz.

The officers ran a warrant check on Brian and Robin. After the warrant checks
came back negative, Austin called for a canine officer to search the vehicle. The canine
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officer was about a block away. Before the canine officer arrived, backup officers
arrived. Within just over eight minutes of the initial stop the canine officer arrived.
Sometime after 8 minutes, but before 12 minutes, had elapsed Austin instructed Sinsel to
write a warning citation for Robin. There was no discussion regarding whether he would
also be required to write a citation for her brother's seat belt violation.

While Sinsel was writing the warning citation, Austin and the other officers at the
scene began to remove the individuals from the vehicle so that the dog sniff could occur.
Officer Lee Trout approached the front passenger side of the vehicle and asked Brian to
step out of the vehicle. When Brian's door opened, Trout noticed a marijuana grinder in
the pocket of the door. At that point, Trout informed the other officers of what he had
found and conveyed to his colleagues that a dog sniff would no longer be necessary. At
this point the warning ticket for Robin had not been issued.

Trout searched the vehicle and located the grinder, methamphetamine, and
marijuana in the area where Brian was sitting. Trout also searched Brian's person and
found several cigars filled with marijuana.

Brian was charged with several drug offenses, as well as a traffic infraction for
failure to wear a seatbelt. He moved to suppress the evidence, arguing, in part, that the
officers unreasonably extended the duration of the stop in an attempt to allow a dog sniff.
The district court held that there was not reasonable suspicion to extend the initial traffic
stop to investigate suspected drug activity. However, the court went on to hold that the
activity that led to the discovery of the grinder occurred during the initial traffic stop and
that the officers did not impermissibly extend the stop. Therefore, the court denied
Brian's motion to suppress.

Brian was found guilty by a jury, and later sentenced, on the drug charges. Brian
timely appeals the denial of the suppression order.
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ANALYSIS

The district court did not err by denying Brian's motion to suppress.

On appeal, Brian argues that the district court erred in holding that the officers did
not unreasonably prolong the traffic stop because the officers requested and began the
process for a dog sniff. In response, the State argues that drug evidence was discovered in
the vehicle prior to the warning citation being issued, and that the issuing of the warning
citation was not unreasonably prolonged.

Standard of Review

The standard of review of a district court's decision on a motion to suppress
applies a bifurcated standard. The appellate court reviews the district court's factual
findings to determine whether they are supported by substantial competent evidence. We
review the ultimate legal conclusion using a de novo standard. In reviewing the factual
findings, the appellate court does not reweigh the evidence or assess the credibility of
witnesses. State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014).

Discussion

When law enforcement performs a traffic stop constitutional issues arise because a
seizure occurs within the meaning of the Fourth Amendment to the United States
Constitution and § 15 of the Kansas Constitution Bill of Rights. State v. Jones, 300 Kan.
630, 637, 333 P.3d 886 (2014). For a seizure to be constitutional, the officer must have
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. Yet "[a] traffic stop is not rendered invalid by the fact that it is a mere pretext for
a search for illegal substances." 300 Kan. 630, Syl. ¶ 4.
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Brian mainly relies on Rodriguez, 135 S. Ct. 1609, to support his argument that the
traffic stop here was prolonged beyond permissible limits. In Rodriguez, the defendant
was pulled over after he drove on the shoulder of a highway for a short time. The officer
asked for Rodriguez' information and ran a warrants check. The officer then went back to
Rodriguez' vehicle and requested the passenger's information. Again, the officer ran a
warrants check. After more than 20 minutes elapsed, the officer issued a written warning
to Rodriguez, but the officer did not consider Rodriguez free to leave. The officer asked
for permission to have his dog perform a sniff of the vehicle, which Rodriguez denied.
The officer told Rodriguez to exit the vehicle, and a few minutes later the officer
completed a dog sniff which resulted in methamphetamine being located.

On appeal, the Court noted that when an officer conducts a traffic stop "addressing
the infraction is the purpose of the stop" and that the stop may not last longer than
necessary to fulfill that purpose. 135 S. Ct. at 1614. Authority for the traffic stop ends
when the tasks tied to the stop are—or reasonably should have been—completed. 135 S.
Ct. at 1614. That said, the Court also noted that some investigations that are unrelated to
the initial traffic stop are permissible if those investigations do not lengthen the traffic
stop. 135 S. Ct. at 1614-15 (citing Illinois v. Caballes, 543 U.S. 405, 408, 125 S. Ct. 834,
160 L. Ed. 2d 842 [2005]). The Court was clear to state that the "seizure remains lawful
only 'so long as [unrelated] inquiries do not measurably extend the duration of the stop.'"
Rodriguez, 135 S. Ct. at 1615 (quoting Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct.
781, 172 L. Ed. 2d 694 [2009]). During a traffic stop an officer can ordinarily check the
driver's license, determine whether there are outstanding warrants, inspect registration
and insurance, and issue a citation. Rodriguez, 135 S. Ct. at 1615. A dog sniff is
permissible if the duration of the stop is not prolonged beyond the time it takes to
complete the ordinary objectives of the traffic stop. 135 S. Ct. at 1615-16.

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The question then is whether the traffic stop here was unreasonably extended by
requesting a dog sniff. The district court found that the stop was not unreasonably
extended:

"The evidence indicates that Officer [S]ins[e]l was still in the process of writing
the citations during the time the request was made for a canine officer, during the arrival
of Officer Ahlstedt, at the time Ms. Lutz and [Brian] were requested to exit the
vehicle. . . . The actions of the officers, including Officer Ahlstedt and Officer Trout, to
this point, did not prolong or extend the duration of the original traffic stop any further
than what was necessary to complete the investigation for the traffic violations and issue
citations for the traffic violations."

Substantial competent evidence supports this holding.

Brian's assertion that Sinsel took time off from writing the citation to discuss the
pending dog sniff is not supported by the record. Austin said that he discussed with Trout
and Officer Kelsey Krogman the plan to have a dog sniff the vehicle. As for Sinsel,
Austin testified that he "told [Sinsel] at that time to go ahead and write a warning citation
to Robin for the violation." Sinsel's testimony also does not suggest that he discussed the
dog sniff with the other officers, instead he "was tasked with writing the warning
citation."

Because the traffic stop was not prolonged due to the dog sniff, the officers did not
violate Brian's constitutional rights by beginning the dog sniff process—removing him
from the car. See Rodriguez, 135 S. Ct. at 1616; Caballes, 543 U.S. at 409 (holding dog
sniff of exterior of car during lawful seizure does not implicate legitimate privacy
interests); Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S. Ct. 882, 137 L. Ed. 2d 41
(1997) (holding officers can remove vehicle occupants from car pending completion of
traffic stop). The subsequent search of the vehicle was lawful based on Trout viewing the
marijuana grinder. See State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012)
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(noting plain view is a recognized exception to warrant requirement); State v. Harrington,
2 Kan. App. 2d 592, 593-94, 585 P.2d 618 (1978) (plain view of marijuana justified
warrantless search).

Brian abandoned any argument concerning the opening of the passenger door by Trout.

Brian also briefly argues that his rights were infringed when Trout opened the
passenger door, which allowed Trout to view the marijuana grinder that was not visible
before. In response, the State argues that this court should not address the issue because it
was not raised below. The State is correct that Brian did not raise the issue below. Issues
not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan.
965, 971, 318 P.3d 987 (2014). Moreover, Brian makes does not explain why this court
should consider his argument for the first time on appeal as required by Kansas Supreme
Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34).

Our Supreme Court continues to reiterate that Rule 6.02(a)(5) means what it says
and is ignored at a litigant's own peril. See State v. Godfrey, 301 Kan. 1041, 1043, 350
P.3d 1068 (2015); State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). That
peril includes a ruling that an issue improperly briefed will be deemed waived or
abandoned. 298 Kan. at 1085. The direction of the Supreme Court could not be any
clearer. "[L]itigants have no excuse for noncompliance with Rule 6.02(a)(5)." Godfrey,
301 Kan. at 1044.

Because Brian failed to explain why this issue is properly before the court for the
first time on appeal, we deem the argument to be abandoned.

Affirmed.