State v. Robertson

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NOT DESIGNATED FOR PUBLICATION

No. 112,852

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

LOGAN ROBERTSON,
Appellee.

MEMORANDUM OPINION


Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed month November 6,
2015. Reversed and remanded with directions.

Nathan L. Dickey, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellant.

James D. Sweet, of Allen, Sweet & Carter, LLC, of Minneapolis, for appellee.

Before HILL, P.J., PIERRON and ARNOLD-BURGER, JJ.

Per Curiam: In this interlocutory appeal, the State appeals the district court's
granting of Logan Robertson's motion to suppress. The court found that Logan had been
arrested when the police officer handcuffed her and that the officer's "misconduct" was
"flagrant." The State argues the police officers could briefly detain and frisk Logan for
officer safety while they determined what was going on. Because the record reveals the
officer was not acting unreasonably when she briefly detained Logan for officer safety,
the district court's order granting Logan's motion is reversed.

Robertson was a passenger in a car that Officer Aaron Carswell stopped in the
spring of 2014. He had stopped the car at around 1:20 a.m. after dispatch informed him
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the tags had come back to a different vehicle. As Officer Carswell exited his patrol car,
the vehicle Robertson was riding in rolled backwards and struck the front of the patrol
car. Officer Carswell could not tell whether the driver had backed into the patrol car by
accident or intentionally. He testified it was "not typical for people to back into my patrol
vehicle" during routine traffic stops. He did not recognize occupants of the car. Officer
Carswell was not sure what the driver's intentions were and did not know what was going
on. He did not know if the people in the car had committed a crime. He ordered the driver
out of the car at gunpoint and called for backup.

Backup officers arrived on the scene. Officer Carswell had not had any contact
with Robertson. Officer Rachel Larson had responded to the request for assistance. All
she knew was that a traffic accident had occurred and the officer had not determined
whether it was an intentional act or an accidental act.

When Officer Larson arrived, Officer Carswell and another officer had their guns
pointed at the occupants of the vehicle. The driver exited the vehicle. Officer Larson
could not see into the car. She could not see any potential weapons that Robertson or the
driver may have had inside of the vehicle. Officer Larson removed Robertson from the
car and performed a pat-down search. She did not locate any weapons on Robertson. She
handcuffed Robertson until the officers "were able to determine exactly what was going
on, and if there [were] any officer safety issues."

Officer Larson asked Robertson her name and date of birth. Robertson gave her
name and said she was 18 years old. Officer Larson smelled a strong odor of alcoholic
beverage coming from Robertson's mouth. She asked Robertson about the odor.
Robertson indicated she had drunk four shots of Jagermeister at a party. Officer Larson
then read Robertson her Miranda rights and placed her under arrest. Officer Larson asked
Robertson if there was anything illegal inside the car. Robertson stated there was a
marijuana smoking pipe in her purse, which was in the car. The Officers found her purse,
searched it, and found a glass smoking pipe with what appeared to be marijuana residue.
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On May 20, 2014, the State charged Robertson with possession and/or
consumption of alcohol by a minor in violation of K.S.A. 2013 Supp. 41-727, possession
of marijuana in violation of K.S.A. 2013 Supp. 21-5706(b)(7), and possession of drug
paraphernalia in violation of K.S.A. 2013 Supp. 21-5709(b)(2).

On August 4, 2014, Robertson filed a motion to suppress. She argued that Officer
Larson inappropriately, and without probable cause, had asked her if there was anything
illegal in the vehicle. Robertson also alleged that Officer Larson had searched her purse
without probable cause, a search warrant, or permission. Robertson argued the search,
detention, and arrest were made without reasonable suspicion or probable cause. She
argued the officers only obtained evidence of the marijuana pipe based on the unlawful
detention and arrest.

On October 3, 2014, the district court held a hearing on Robertson's motion to
suppress. Officers Carswell and Larson testified for the State. On October 24, 2014, the
court announced its decision on Robertson's motion to suppress and found that Officer
Carswell had stopped the car after dispatch informed him the tag did not match the
vehicle. "After conducting a traffic stop, the [car] slowly rolled back into Officer
Carswell's vehicle." Officer Carswell called for backup, and he and another officer
approached the car with their guns drawn. The driver told officers the car had slipped out
of park. When Officer Larson arrived, the officers had not determined if the incident was
intentional or accidental. She removed Robertson from the front passenger seat while
another officer had his weapon pointed at Robertson. Officer Larson immediately
handcuffed Robertson to determine what was going on and for officer safety. She then
conducted a pat-down search of Robertson. While asking Robertson questions to obtain
her identifying information, Officer Larson smelled a strong odor of alcohol emanating
from Robertson's breath. Robertson told Officer Larson she had drunk four shots of
Jagermeister at a party and was 18-years-old. Officer Larson then arrested Robertson and
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advised her of her Miranda rights. She asked Robertson if there was anything in the car
and Robertson told her she had a marijuana pipe in her purse in the car.

The district court then found that "Officer Carswell conducted a traffic stop of the
vehicle [Robertson] was a passenger in . . . . As a passenger in a lawfully stopped vehicle,
the Court finds [Robertson] was lawfully seized in connection with a traffic stop." The
court recognized Robertson's challenge that she was unlawfully detained and arrested
under K.S.A. 22-2402(4) and K.S.A. 22-2405(1), which "provide that a person is
considered to be under arrest when he or she is physically restrained or when he or she
submits to the officer's custody." The court then found Robertson "was arrested by law
enforcement when she was removed at gunpoint from the vehicle, handcuffed, and
ordered to sit on the curb. She was clearly . . . physically restrained by law enforcement
at that point."

The district court then considered whether the officers had probable cause to arrest
Robertson. The court found:

"The vehicle [Robertson] was a passenger in was stopped for an illegal tag. Following the
stop, the vehicle slowly rolled back into Officer Carswell's vehicle. No evidence was
presented that any damage was done to the patrol vehicle when the car slowly backed
into it.
"[Robertson] was not the driver of the vehicle. No evidence was presented at the
hearing that [Robertson] was suspected of committing any crime prior to her arrest. No
evidence was presented that the officers had reasonable suspicion to believe she was
armed or dangerous. In fact, no evidence was presented that [Robertson] did anything
other than being a passenger in the vehicle.
"The Court, after considering the totality of the circumstances, finds that
[Robertson] was arrested by Officer Larson without probable cause to believe that a
crime had been committed, was being committed, or was going to be committed by the
defendant."

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The district court then considered attenuation. The court relied on State v. Hill,
281 Kan. 136, 130 P.3d 1 (2006) when determining whether Robertson's confession,
given after being arrested without probable cause, should be admissible. The court found
Officer Larson had given Robertson Miranda warnings after being removed from the car
at gunpoint and then handcuffed. Robertson's "statements made . . . in response to
questioning by Officer Larson occurred shortly after the illegal arrest." The court found
the officers' "misconduct in . . . removing her from the vehicle at gunpoint and
handcuffing her was flagrant." The court found no evidence had been presented of any
intervening factors.

The district court concluded: "[T]he connection between the illegal arrest and
[Robertson's] subsequent statements regarding her consumption of alcohol and a
marijuana pipe in her purse, which led to the search of the purse, cannot be deemed to be
so attenuated as to dissipate the taint and the illegal arrest." The court granted Robertson's
motion to suppress and held that "[a]ll evidence seized and statements made following
[Robertson's] illegal arrest are suppressed."

The State brings this appeal.

When reviewing a district court's decision on a motion to suppress, an appellate
court applies a two-part standard. Without reweighing the evidence, we examine the
district court's factual findings to determine whether they are supported by substantial
evidence. State v. Gibson, 299 Kan. 207, 215-16, 322 P.3d 389 (2014). When the material
facts are not in dispute, the only remaining question is a legal one—whether the
suppression was proper. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014). We
review the district court's legal conclusion independently, without any required deference
to its conclusion. Gibson, 299 Kan. at 216.

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Kansas appellate courts apply the same two-part standard on a State's appeal of a
district court's grant of a motion to suppress. State v. Bruce, 295 Kan. 1036, 1039, 287
P.3d 919 (2012).

Because the district court's findings of facts are not in dispute, the only remaining
question is the legal question: Was suppression of the evidence proper? See Stevenson,
299 Kan. at 57.

The parties do not challenge the district court's finding that Robertson, as a
passenger in a vehicle stopped in a lawfully conducted traffic stop, was lawfully seized.
The State argues the district court erroneously determined Robertson was under arrest
when she was removed from the vehicle and handcuffed. The State argues Officer Larson
was justified when she handcuffed and frisked Robertson as an officer safety search
during an investigatory detention. Robertson in turn argues she was effectually under
arrest when Officer Larson placed handcuffs on her and "the evidentiary record is devoid
of any objective facts or circumstances which would lead any of the officers involved to
believe that [Robertson] posed a safety risk to the officers or that [she] had committed,
was about to commit or was committing a crime."

There are four types of police-citizen encounters: "consensual encounters, which
are not considered seizures; investigatory detentions, commonly known as Terry stops
(after Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968], whose
parameters are codified in K.S.A. 22-2402); public safety stops; and arrests. [Citations
omitted]." State v. Johnson, 293 Kan. 959, 965, 270 P.3d 1135 (2012).

In the present case, we must determine if the facts suggest the encounter between
Officer Larson and Robertson was an investigatory detention—a Terry stop under K.S.A.
22-2402—or an illegal arrest.

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Terry and K.S.A. 22-2402(2) permit a minimal search of a detained person for the
limited purpose of ensuring the police officer's safety, provided the officer has reasonable
suspicion that such a search is required for the officer's personal safety. The officer must
have prior knowledge of facts, observe conduct of the detained person, or receive
responses from the detained person that, in light of the officer's experience, would give
rise to reasonable suspicion that a search is necessary. State v. Johnson, 42 Kan. App. 2d
799, 803, 217 P.3d 42 (2009), aff'd 293 Kan. 959 (2012). "To perform the frisk or limited
search permitted during an investigatory detention, '[t]he officer need not be absolutely
certain that the individual is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was in
danger.' Terry, 392 U.S. at 27 (citation omitted)." Johnson, 293 Kan. at 965. Terry
recognized that a frisk for weapons constituted a "'severe, though brief, intrusion upon
cherished personal security,' but concluded that such a search was reasonable when
weighed against the 'need for law enforcement officers to protect themselves and other
prospective victims of violence in situations where they may lack probable cause for
arrest.'" Johnson, 293 Kan. at 966 (quoting Terry, 392 U.A. at 24-25). When an officer
detains a suspect for safety concerns, once those concerns have disappeared, an officer is
not justified in beginning to perform an investigatory detention. State v. Reiss, 299 Kan.
291, 303, 326 P.3d 367 (2014).

For an arrest, a law enforcement officer must have a warrant for the individual's
arrest, probable cause to believe there is a warrant for the individual's arrest, or probable
cause to believe that the individual is committing or has committed a crime. See K.S.A.
22-2401. A person is considered to be under arrest when he or she is physically restrained
or when he or she submits to the officer's custody for the purpose of answering for the
commission of a crime. K.S.A. 22-2202(4); K.S.A. 22-2405(1). For purposes of this
analysis, the critical part of this definition is that the physical restraint be effectuated in
order to answer for the commission of a crime as opposed to any other reason, including
but not limited to officer safety. See State v. Blackston, No. 109,684, 2014 WL 4995842,
at *4 (Kan. App. 2014) (unpublished opinion), rev. denied 302 Kan. ___ (August 4,
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2015); State v. Anderson, No. 99,779, 2009 WL 1591399, at *5 (Kan. App. 2009)
(unpublished opinion), rev. denied 290 Kan. 1095 (2010).

Police officers are not required to take unnecessary risks in the line of duty. They
are permitted to use precautionary measures that are reasonably necessary to safeguard
their personal safety. State v. Nugent, 15 Kan. App. 2d 554, 564, 811 P.2d 890 (citing
K.S.A. 22-2402[2]), rev. denied 249 Kan. 777 (1991). For example, the use of handcuffs
and/or frisking a detainee for weapons does not automatically convert an investigatory
detention into an arrest. State v. Hill, 281 Kan. at 142; Anderson, 2009 WL 1591399, at
*5. "[T]he test for whether a seizure and an arrest has occurred is based on what a
reasonable person would believe under the totality of the circumstances surrounding the
incident." Hill, 281 Kan. at 145.

The issue presented here is whether a reasonable person would believe the officers'
actions in pulling out their weapons and Officer Larson handcuffing and patting down
Robertson were necessary to protect the officer's safety and the safety of the other
officers.

In this case, Officer Carswell conducted a lawful traffic stop in the middle of the
night of the vehicle Robertson was riding in. As soon as Officer Carswell stopped the car,
it rolled back into his patrol car. Officer Carswell did not recognize the driver or
Robertson and could not determine whether the driver struck the patrol car on purpose or
by accident. He and another officer drew their weapons, and Officer Carswell called for
backup. Officer Larson responded. She knew officers had not been able to ascertain
whether the vehicle had struck the patrol car intentionally. She could not see into the car
to determine if Robertson or the driver had any weapons. She removed Robertson from
the car, handcuffed her, and performed a Terry frisk. The frisk revealed no weapons.
Officer Larson wanted to gather some basic information from Robertson to determine
what was going on.

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These facts provided an adequate basis for searching Robertson and performing a
brief investigatory detention. See K.S.A. 22-2402(2) (permitting a law enforcement
officer to conduct an officer safety search). In hindsight, it turned out that the vehicle
struck the patrol car after the gear slipped, and neither the driver nor Robertson posed any
real threat to the officers. But based on the facts the officers had before them as these
events played out, it was not unreasonable for them to detain and frisk Robertson for
officer safety. Under these circumstances, the valid detention of Robertson became a
legitimate investigatory detention for officer safety and not for purposes of answering for
the commission of a crime. Because it was reasonably necessary for Officer Larson to
handcuff and frisk Robertson for weapons, the physical restraint and search did not
convert the investigatory detention into an arrest under these particular circumstances
involving this sequence of events: the car Robertson was riding in was legally stopped at
1:20 a.m.; as a passenger, she was legally detained; when the car rolled back and hit the
patrol car, the officers acted reasonably by calling for backup, removing both the driver
and Robertson from the car, and handcuffing them until the officers could ascertain
whether the driver had intentionally or accidentally struck the patrol car.

Because Officer Larson was not acting unreasonably when she handcuffed and
frisked Robertson for officer safety, we conclude that Robertson was not arrested until
after Officer Larson determined that she was 18 years old and smelled the odor of alcohol
emanating from her breath. See United States v. Shareef, 100 F.3d 1491, 1502 (10th
Cir.1996) (use of firearms, handcuffs, or other forceful techniques does not necessarily
transform Terry stop into full custodial arrest when circumstances reasonably warrant
such measures); United States v. Blackman, 66 F.3d 1572, 1576 (11th Cir. 1995) (fact
that police handcuff person or draw their weapons does not, as a matter of course,
transform investigatory stop into arrest), cert. denied 517 U.S. 1126 (1996); State v.
Walker, 292 Kan. 1, 11-12, 251 P.3d 618 (2011) (pedestrian fitting description of
burglary suspect located near scene within short period of time after burglary amounted
to reasonable suspicion to support detention); Hill, 281 Kan. at 142 (use of handcuffs
and/or frisking detainee for weapons does not automatically convert investigatory
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detention into arrest); Blackston, 2014 WL 4995842, at * 4-5 (pedestrian fitting
description of burglary suspect located near scene within short period of time after
burglary amounted to reasonable suspicion to support detention); Anderson, 2009 WL
1591399, at * 5 (reasonable to detain and frisk individual when police observed
defendant in an unexplained foot chase late at night in a high crime area, defendant took
flight immediately after officer indicated his intent to investigate); but see State v. Acosta,
No. 109,031, 2014 WL 2619378, at * 2-3 (Kan. App.), rev. denied 300 Kan. 1104 (2014)
(officer's testimony, without any additional explanation, that he wanted to talk to
defendant "for my safety" insufficient to justify warrantless search).

The district court's order suppressing the evidence is reversed.

The parties do not address whether Officer Larson had probable cause to arrest
Robertson assuming the investigatory detention was proper. However, because Robertson
told Officer Larson she was 18 years old and admitted to drinking four shots of
Jagermeister, Officer Larson would have had probable cause to arrest Robertson for
being a minor in possession and/or for consumption of alcohol after Robertson told
Officer Larson her age and admitted to drinking.

The district court erred in sustaining the motion to suppress the evidence that
supported the three charges of the complaint—possession and/or consumption of alcohol
by a minor, possession of marijuana, and possession of drug paraphernalia.

We reverse and remand for further proceedings consistent with this decision.

Reversed and remanded.