State v. McQueary

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NOT DESIGNATED FOR PUBLICATION

No. 115,210

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DEZAREE JO MCQUEARY,
Appellant.

MEMORANDUM OPINION


Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed June 23, 2017.
Affirmed.

Rick Kittel, of Kansas Appellant Defender Office, for appellant.

Brock R. Abbey, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellee.

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

Per Curiam: Dezaree Jo McQueary was charged with (1) possession of
methamphetamine; (2) possession of drug paraphernalia; (3) two counts of criminal use
of a weapon; and (4) possession of marijuana. She filed a motion to suppress evidence
resulting from the seizure. She argued the stop was an illegal seizure and all evidence
derived from the stop should be suppressed.

A hearing on the motion to suppress was held on March 4, 2015. Officer Jones
testified he had stopped Jesus Reyna and McQueary on April 29, 2014. Officer Jones was
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parked in a church parking lot, across the street from the Casey's, and was running tag
numbers when he ran a tag for a Cadillac at a gas pump at Casey's. The tag came back to
Reyna. Officer Jones and Officer Garcia had discussed Reyna in the past, but Officer
Jones did not know that this particular vehicle was associated with Reyna until he ran the
tag. He knew Reyna had a warrant out for his arrest. Officer Jones was also aware that
Reyna was associated with a dark gray Cadillac.

Officer Jones watched the vehicle and notified Officer Hanus that he thought
Reyna was in a vehicle at the Casey's. Officer Jones observed a female exit the passenger
side of the vehicle and go inside the Casey's. She came out with two large sodas. Officer
Jones stated it was suspicious to him that the vehicle was parked at a pump, but the driver
never got out to pump gas. Officer Jones then testified subjects with warrants often do not
want to be seen and he was plainly visible where he was parked in a patrol car. At no
point did anyone pump gas while the vehicle was parked at the pump.

The vehicle then left the Casey's and Officer Jones decided to follow it. The
vehicle immediately returned to Casey's and parked in a stall. Officer Jones found it odd
the vehicle returned to Casey's just after it left because it seemed as though their business
was done there. He pulled in behind the vehicle and initiated a traffic stop by turning on
his lights and calling in to dispatch. Office Jones positioned his patrol car behind the
vehicle on the driver's side and Officer Hanus pulled in directly behind Officer Jones.

Officer Jones asked the driver for his name. The driver identified himself as
Reyna. Officer Jones also determined the identity the passenger as McQueary. Officer
Jones opened the door to get Reyna out of the vehicle because Reyna had a warrant. After
a struggle, Reyna was handcuffed. Reyna had a glass pipe protruding from one of his
pockets. At that point, McQueary approached them and Officer Jones told her to get
back. He did not want her to get back in the vehicle, as there was paraphernalia that was
visible. Officer Jones held McQueary's arm and escorted her to the back of the vehicle
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when he heard a metallic sound as something hit the pavement. He looked down and it
was a firearm. McQueary stated the gun was concealed in the front left pocket of the
sweatshirt she was wearing.

Officer Hanus searched Reyna and found a glass methamphetamine pipe and a
plastic baggie containing 2.4 grams of methamphetamine. A search of the car revealed
baggies and more glass pipes. A broken glass pipe in a tin was found in a purse on the
right front passenger seat. McQueary admitted she had used methamphetamine from that
pipe and she knew it was in her purse.

McQueary and Reyna were arrested. On the way to the jail after McQueary had
been advised of her rights, she acknowledged that the purse in the vehicle was hers. 

The motion to suppress was denied on March 16, 2015. The district court
determined Officer Jones had reasonable suspicion to believe that Reyna was the driver
of the vehicle. The totality of the circumstances that gave rise to reasonable suspicion
included that Officer Jones had been told Reyna was associated with a gray Cadillac; the
tag for the gray Cadillac was registered to someone with the last name of Reyna; the
behavior of the driver of the gray Cadillac, that he pulled up to a gas pump but did not get
gas or exit the vehicle; and the vehicle left the gas pump and proceeded to drive and park
in an area that would not be visible to the officer after the passenger had already entered
the store and returned with soft drinks. The court believed Officer Jones had reasonable
suspicion to conduct a Terry stop and determine whether the driver of the vehicle was
Reyna.

McQueary waived her right to jury trial and the case went to a bench trial on
stipulated facts. The stipulation specifically preserved the suppression issue for appellate
review. On August 10, 2015, the district court found McQueary guilty of count 1,
unlawful possession of methamphetamine. The State dismissed the remaining counts.
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On appeal, McQueary argues the district court erred when it denied her motion to
suppress evidence resulting from the seizure because the officer lacked reasonable
suspicion. We affirm.

The standard of review of a district court's decision on a motion to suppress is a
bifurcated standard. The appellate court reviews the district court's factual findings to
determine whether they are supported by substantial competent evidence. The ultimate
legal conclusion is reviewed 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. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016).

Here, McQueary argues the officers lacked reasonable suspicion required for an
investigatory stop. She argues the evidence from the illegal seizure should be excluded.

The United States Supreme Court has developed a totality of the circumstances
test to determine whether an encounter is consensual or if there has been a seizure. See
State v. Thompson, 284 Kan. 763, 775, 166 P.3d 1015 (2007). Under this test, an
encounter with law enforcement is consensual if, under the totality of the circumstances,
a reasonable person would feel free to go about his or her business and no reasonable
suspicion is required. State v. Reason, 263 Kan. 405, 410, 951 P.2d 538 (1997).

There are several factors to help determine whether a law enforcement encounter
is voluntary or an investigatory detention. This list includes "the presence of more than
one officer, the display of a weapon, physical contact by the officer, use of a
commanding tone of voice, activation of sirens or flashers, a command to halt or to
approach, and an attempt to control the ability to flee. State v. Thomas, 291 Kan. 676,
683, 246 P.3d 678 (2011). The facts of each case are analyzed independently. 291 Kan. at
684.
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Officer Jones conducted an investigatory stop of Reyna and McQueary. He
initiated the stop by turning on his lights and calling dispatch. He also called for backup,
and Officer Hanus was soon present at the scene. Officer Jones positioned his patrol car
behind the gray Cadillac on the driver's side and Officer Hanus parked behind him. Based
on this information, a reasonable person would not feel free to leave the encounter. See
Reason, 263 Kan. at 410.

The Fourth Amendment to the United States Constitution guarantees 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 this
same protection. State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006). Generally, a
law enforcement officer may stop any person in a public place if the officer reasonably
suspects the person is committing, has committed, or is about to commit a crime. See
K.S.A. 22-2402(1); Thomas, 291 Kan. at 687. When considering whether an officer had
reasonable suspicion, courts determine "whether [the officer] articulated specific facts
which would support a reasonable suspicion" that the person violated the law. State v.
Marx, 289 Kan. 657, 674, 215 P.3d 601 (2009).

An officer's conduct is judged "'in light of common sense and ordinary human
experience.'" State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998). The
determination is made "'with deference to a trained law enforcement officer's ability to
distinguish between innocent and suspicious circumstances, [citation omitted],
remembering that reasonable suspicion represents a "minimum level of objective
justification."'" 263 Kan. at 735. Nevertheless, the Kansas Supreme Court has articulated
that courts should not give "total, or substantial, deference to law enforcement's opinion
concerning the presence of reasonable suspicion." State v. Moore, 283 Kan. 344, 359, 154
P.3d 1 (2007). Instead, the court has emphasized that because the question of whether
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reasonable suspicion exists depends on the totality of the circumstances, therefore, "a
case-by-case evaluation is required." 283 Kan. at 359.

Reasonable suspicion is a less demanding standard than probable cause and
requires a showing considerably less than a preponderance of the evidence. Illinois v.
Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). However, the
Fourth Amendment requires at least a minimal level of objective justification which an
officer must be able to articulate as more than a hunch of criminal activity. 528 U.S. at
123.

McQueary argues this case is analogous to State v. Steen, 28 Kan. App. 2d 214,
215, 13 P.3d 922 (2000). In Steen, the officer observed a black male driving and a black
female riding in a car. The officer ran a check on the car's license plate in a computerized
database. The results of the check indicated that a black male by the name of Damon
DeWayne Steen was associated with the vehicle. The officer also learned a person with
that name had an outstanding arrest warrant. The officer stopped the car and checked the
driver's license, which stated the driver's name was Steen. The officer then arrested Steen
on the outstanding warrant, searched him, and found marijuana.

The Steen court was concerned about the database because it did not know
whether Steen's name was retrieved from the database because "he happened to be a
witness from outside the car when it was involved in a collision on some previous
occasion or because he had driven it or been a passenger in it on some previous
occasion." 28 Kan. App. 2d at 216. If his name was associated with the car through the
first type of encounter, the Steen court determined that his name in the database would
not have been a meaningful predictor of his presence in the car on that day. 28 Kan. App.
2d at 216.

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The Steen court found there was no reasonable suspicion to stop the vehicle, and
on remand it required the State to present evidence that the database included only those
associated with cars because they occupied them previously as a driver or a passenger. 28
Kan. App. 2d at 218. Further, the Steen court ordered the State to show that if persons in
the database were not limited to those who had driven or been riders in the car, the officer
must receive information from the database or elsewhere to establish a link before the
stop is made. 28 Kan. App. 2d at 218.

Based on Steen, McQueary argues Officer Jones knew nothing that would support
a reasonable suspicion that the gray Cadillac he was looking at was the same gray
Cadillac associated with Reyna. Further, she argues the officer here knew less than the
officer in Steen, as here the officer could not identify the driver or the passenger of the
gray Cadillac. Based on this case, McQueary argues Officer Jones did not have
reasonable suspicion when he activated his emergency lights and made the illegal stop.

There is a great difference between this case and Steen. In Steen, the computerized
database results indicated Steen was associated with the car. The Steen court remanded
the case and required the State to establish that the officer who ran the check had specific
information regarding the link before the stop was made. 28 Kan. App. 2d at 218. Here,
Officer Jones did not know this particular vehicle was associated with Reyna until he ran
the tag number, but he did know Reyna was associated with a dark gray Cadillac. Officer
Jones and Officer Garcia had discussed Reyna previously, and Officer Jones knew Reyna
had a warrant out for his arrest. While the tag information came from a database, Officer
Jones had personal knowledge regarding the link between Reyna and the gray Cadillac.
That, in addition to the odd behavior Officer Jones observed while the vehicle was at the
Casey's, gave him reasonable suspicion to conduct an investigatory stop.

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Because Officer Jones had a reasonable suspicion to conduct the investigatory
stop, the district court was correct to deny the motion to suppress and to allow the
subsequent evidence in at trial. The district court is affirmed.

Affirmed.