Opinion
No. 106,920.
2012-06-22
STATE of Kansas, Appellant, v. Joshua L. KLINGAMAN, Appellee.
Appeal from Jackson District Court; Micheal A. Ireland, Judge. Tim Liesmann, assistant court attorney, and Derek Schmidt, attorney general, for appellant. Randy M. Barker, of Topeka, for appellee.
Appeal from Jackson District Court; Micheal A. Ireland, Judge.
Tim Liesmann, assistant court attorney, and Derek Schmidt, attorney general, for appellant. Randy M. Barker, of Topeka, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State appeals the district court's decision to grant Joshua L. Klingaman's motion to suppress drug evidence found in his car after a traffic stop.
On September 3, 2011, Prairie Band Potawatomie Tribal Police Officer Steven Smith was driving in Jackson County, Kansas, on a portion of U.S. 75 Highway that runs through the Prairie Band Potawatomie Reservation. After clocking a car travelling at 88 mph in a 70 mph zone, Officer Smith effectuated a traffic stop.
At 7:09 a.m., Officer Smith contacted the vehicle's occupants, a male driver and a female passenger, and asked them for identification. After identifying Klingaman by his driver's license, Officer Smith asked him for his registration and insurance documents. Then Officer Smith returned to his patrol car with Klingaman. Klingaman sat in the passenger seat.
After running a license and warrant check, Officer Smith determined that Klingaman had a valid license and no warrants. He also reviewed the vehicle documents, which listed Klingaman as the registered owner of the vehicle. During this time, Officer Smith asked Klingaman if the address on his driver's license was current. Klingaman said it was his ex-wife's address, and he was using it for mail purposes because he had been released from prison 6 weeks earlier and was staying at a motel. Officer Smith questioned Klingaman about his vehicle and employment. Klingaman said he had obtained the vehicle a couple of weeks earlier and was unemployed, but his church was paying his living expenses. Officer Smith also questioned Klingaman about where he had been and to where he was traveling. Klingaman said he was going from Holton to Topeka.
Officer Smith left Klingaman in the patrol car and returned to the vehicle where he spoke with the passenger. She said they were travelling from Holton to Topeka and had been in Holton for about 5 minutes to collect a debt. Officer Smith verified the authenticity of Klingaman's documents by comparing the VIN from the registration to the VINs visible through the windshield and on the driver's doorjamb. The VINs matched.
Officer Smith returned to the patrol car and asked Klingaman how long they had been in Holton, and Klingaman estimated about an 1 hour. Officer Smith further questioned Klingaman about his prison term and prior offenses. He then issued Klingaman a speeding ticket, returned his documents, and told him he was free to go.
Officer Smith testified he had expanded the scope of the traffic stop because he questioned the authenticity of Klingaman's documents. He also testified about “uncommon observations” which he had noted in his report: loose food wrappers which are sometimes used to distract police dogs; a single key in the ignition, which could indicate the car was stolen; Klingaman's hand was shaking when he produced documentation; and the passenger was grinding her teeth. But Officer Smith admitted that there were reasonable explanations for his observations: the vehicle's occupants had been eating, the vehicle was relatively new, and Klingaman had just gotten out of prison and was living in a motel.
Klingaman walked back to his vehicle, opened the door, and put the documents inside, but before he could enter the vehicle, Officer Smith reinitiated contact with him. Officer Smith was at the driver's door of his patrol car when he called “Joshua” three times in a raised voice, so he could be heard over traffic.
At that time, the patrol car's rear lights were still activated; the front ones were not. Klingaman was at the driver's door of his vehicle when he acknowledged Officer Smith's final call. Officer Smith asked, “[D]o you have a few minutes [so] I can ask you some questions?” Klingaman met Officer Smith at the front passenger side of the patrol car and replied, “[T]hat's fine.” Officer Smith asked Klingaman where he had been, how long he had been there, where he was going, how he knew the passenger, and how long he had known the passenger. Officer Smith also inquired about the nature of his prison term. At that point, Officer Smith asked Klingaman to remain at the patrol car while he talked to the passenger. Officer Smith asked the passenger the same travel questions that he had asked Klingaman, to see if their stories matched.
At 7:32 a.m., Officer Smith returned to Klingaman and asked for consent to search his vehicle. Klingaman refused. Officer Smith then asked for consent to run a police dog around his vehicle. Klingaman agreed. As Officer Smith walked his dog around Klingaman's vehicle, the dog alerted on the driver's door, jumped through the open driver's window undirected, sniffed the inside of the vehicle, and gave a final indication. Officer Smith removed the dog from the vehicle, put him back in the patrol car, and returned to Klingaman. Klingaman asked if the dog was considered an officer; Officer Smith said yes. Klingaman asked why the dog could search his vehicle without consent and Officer Smith cited United States v. Stone, 866 F.2d 359, 363–64 (10th Cir.1989) (police use of drug dog to sniff car not search; warrantless car search justified where police had reasonable suspicion of drugs and dog indicated existence of drugs after jumping into car undirected).
Officer Smith searched Klingaman's vehicle. In the driver's door, he found a glass pipe with a Brillo pad inside it. Between the console and passenger seat, he found a glass vial containing white powder. Each item field-tested presumptive positive for cocaine. After being read his Miranda rights, Klingaman admitted to being addicted to cocaine and using 1 gram every other day.
Officer Smith testified that when he is on duty and in uniform, as he was on the morning he stopped Klingaman, the average person would assume he is displaying police authority. Officer Smith is 6 feet tall. Klingaman testified that he heard one of Officer Smith's calls, which was loud enough to be heard over traffic. He said he did not feel free to leave because “when an officer tries to get your attention ... you give it to them ... you don't get in a car and take off otherwise it's just going to create more problems for you.” He also said the front lights of Officer Smith's patrol car were flashing. Finally, he testified that he was not read his Miranda rights before being questioned outside the patrol car, and he did not feel free to refuse to answer Officer Smith's questions.
Officer Smith's report indicates the timing of his observations after the traffic stop. After Klingaman exited the patrol car, dispatch advised Officer Smith that the passenger had prior drug offenses. Officer Smith got Klingaman's attention and walked to the passenger side of patrol car to meet him and asked why he had driven to Holton. Klingaman responded that the passenger had needed a ride but they were not living together and he did not know her very well.
After asking Klingaman to remain outside the patrol car Officer Smith contacted the passenger again and asked about her relationship with Klingaman. She stated she did not know him very well and if the vehicle contained anything illegal, it belonged to Klingaman. She stated that she did not have anything illegal but she did not know about the vehicle.
Officer Smith told Klingaman he was suspicious and asked if his vehicle contained any guns, large quantities of cash, marijuana, methamphetamine, heroin, cocaine, or paraphernalia and Klingaman replied it did not. Klingaman did not consent to search vehicle but consented to the drug dog sniff.
After being charged with possession of cocaine, possession of drug paraphernalia, and speeding, Klingaman filed a motion to suppress the drug evidence found in his car. He claimed Officer Smith illegally expanded the traffic stop into an interrogation. The district court heard evidence on this motion at the preliminary hearing.
Following the testimonies of Officer Smith and Klingaman, the district court granted Klingaman's motion to suppress. The court found that Officer Smith “forgot about the speeding almost immediately and went into an investigation.” His second questioning of Klingaman outside the patrol car was a reseizure not a consensual encounter; and he had no reason to suspect that Klingaman had contraband in his vehicle. The State timely appeals.
The State argues that Officer Smith's contact with Klingaman involved both a “routine speeding stop” and a subsequent consensual encounter. Klingaman counters that Officer Smith “far exceed[ed] the scope of the original speeding traffic stop” and the post-traffic stop encounter was nonconsensual.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable governmental searches and seizures. A traffic stop is a seizure of the driver under the purview of the Fourth Amendment. State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007). Here, the legality of the initial stop is not contested because Officer Smith observed Klingaman commit a traffic violation, i.e., speeding. See K.S.A. 22–2402(1); Moore, 283 Kan. at 349–50 (a traffic violation provides articulable facts sufficient to constitute reasonable suspicion). Therefore, we must decide three issues: (1) Was the traffic stop unlawful? (2) Was the post-traffic-stop encounter lawful? and (3) Was the consent valid? See State v. Thompson, 284 Kan. 763, 773, 810, 812, 166 P.3d 1015 (2007). In this case, the district court suppressed the drug evidence based on the unlawfulness of the immediate post-stop actions—“[Officer Smith] forgot about the speeding almost immediately and went into an investigation”—and the post-traffic stop officer-initiated encounter—“I'm not going to say that that's a consensual encounter ... [because Officer Smith] re-seized [Klingaman] when he ... removed him from where he was, took him back [to] ... his patrol car” and “There was no reason to suspect contraband in this car, none.”
The appellate court's standard of review is well known:
“On a motion to suppress evidence, this court generally reviews the factual findings underlying the district court's suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The court does not reweigh the evidence. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). When the parties do not dispute the material facts, however, the suppression question is solely one of law. State v. Thomas, 291 Kan. 676, 682, 246 P .3d 678 (2011).” State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011).
“In Kansas, a detention may not exceed the scope or duration necessary to carry out the purpose of the traffic stop.” Thompson, 284 Kan. at 774. During a routine traffic stop, an officer may request a driver's license, vehicle registration, and proof of insurance, run a computer check, and issue a citation. Coleman, 292 Kan. at 816; see K.S.A. 22–2402 (officer may demand person's name, address, and explanation of person's actions). An officer's travel questions of a driver—how long were you in a city and why were you there—are proper because they are permissible incidents to a routine traffic stop. State v. Morlock, 289 Kan. 980, 993, 218 P.3d 801 (2009).
An officer's questions or actions unrelated to the reason for the traffic stop do not convert the stop into an unlawful seizure so long as they do not measurably extend the stop. Coleman, 292 Kan. at 816. See Morlock, 289 Kan. at 994 (questioning of passenger did not measurably extend stop because it happened during gathering of vehicle documentation); cf. State v. Mitchell, 265 Kan. 238, 245, 960 P.2d 200 (1998) (questioning of driver measurably extended stop because it happened when the officer had all necessary information and could have issued ticket or warning). But an officer can remove a driver from a vehicle in the interest of safety, even if such act extends the stop. Pennsylvania v. Mimms, 434 U.S. 106, 109–11, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).
“If no information raising a reasonable and articulable suspicion of illegal activity is found during the time period necessary to perform ... tasks incident to a traffic stop, the motorist must be allowed to leave without further delay.” Thompson, 284 Kan. at 774; see Moore, 283 Kan. at 355 (nervousness alone not enough for, but can contribute to, reasonable suspicion); State v. DeMarco, 263 Kan. 727, 739, 952 P.2d 1276 (1998) (discrepancies in travel plans can contribute to reasonable suspicion).
The United States Supreme Court has addressed the issue of officers checking VINs during routine traffic stops. In New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), two officers stopped a vehicle for driving with a cracked windshield and speeding. The driver got out of his vehicle and approached one of the officers with his registration and insurance documents, and admitted that he did not have a driver's license. Meanwhile, the other officer opened the vehicle door to look for the VIN, which is found of the left doorjamb of earlier-model vehicles. When he did not find a doorjamb VTN, he reached inside the vehicle to move papers obscuring the area of the dashboard where the VIN is found on later-model vehicles. In doing so, the officer saw a handgun protruding out from under the driver's seat. He seized the gun, and the driver was issued traffic tickets and arrested.
The state trial court denied the driver's motion to suppress the gun as evidence, the appellate court affirmed, and the state high court reversed. The United States Supreme Court reversed, concluding that “a demand to inspect the VIN, like a demand to see license and registration papers, is within the scope of police authority pursuant to a traffic violation stop.” 475 U.S. at 115. The Court held: “In light of the danger to the officers' safety that would have been presented by returning respondent immediately to his car, we think the search to obtain the VIN was not prohibited by the Fourth Amendment.” 475 U.S. at 116. But most importantly, the Court qualified its holding:
“We note that our holding today does not authorize police officers to enter a vehicle to obtain a dashboard-mounted VIN when the VIN is visible from outside the automobile. If the VIN is in the plain view of someone outside the vehicle, there is no justification for governmental intrusion into the passenger compartment to see it.” (Emphasis added.) 475 U.S. at 119.
See United States v. Caro, 248 F.3d 1240, 1248 (10th Cir.2001) (officer viewed dashboard VIN of suspected stolen vehicle before obtaining driver's consent to search doorjamb VIN; traffic stop unlawful and consent did not purge taint).
Here, we must decide whether the scope and duration of Klingaman's detention was reasonably related to Officer Smith's investigation of a violation of K.S.A. 8–1558 (speeding). We agree with the district court's finding that the further detention was unlawful. Officer Smith may have been justified in (1) removing Klingaman from his car, for safety reasons; (2) questioning Klingaman about his car, employment status, and travel plans, because he did so while running a computer check; and (3) inspecting the vehicle's dashboard VIN. But Officer Smith was not justified in inspecting the vehicle's doorjamb VIN after having checked the windshield VIN and asking several questions of the passenger to see whether she might provide different information than Klingaman had provided also measurably extended the traffic stop.
Therefore, the further detention violated Klingaman's rights under the Fourth Amendment to the United States Constitution.
A traffic stop can be extended in two situations: (1) “the encounter between the officer and the driver ceases to be a detention, but becomes consensual, and the driver voluntarily consents to additional questioning”; or (2) “during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity.” Thompson, 284 Kan. at 775;cf. Coleman, 292 Kan. at 816. “[L]aw enforcement interaction with a person is consensual, not a seizure if, under the totality of the circumstances, the ... officer's conduct conveys to a reasonable person that he ... was free to refuse the requests or otherwise end the encounter.” Thompson, 284 Kan. at 775;Moore, 283 Kan. at 351–52 (encounter not consensual if reasonable person would not feel “free to leave”).
To determine whether a reasonable person would have felt free to leave, we can use the following factors: (1) driver's knowledge of right to refuse; (2) clear communication that driver is free to terminate encounter or refuse to answer questions; (3) the return of driver's license or other documents; (4) physical disengagement before further questioning; (5) threatening presence of several officers; (6) display of weapon by officer; (7) physical touching of driver; (8) officer's use of aggressive language or tone; (9) absence of other members of public; or (10) display of emergency lights. Thompson, 284 Kan. at 811. The driver's subjective state of mind, however, cannot be considered. 284 Kan. at 810.
We must decide whether the encounter became consensual after Officer Smith ended the traffic stop. We agree with the district court's finding that the further encounter was nonconsensual. The factors weigh in favor of the conclusion that the encounter between Officer Smith and Klingaman was consensual at the outset. Officer Smith returned Klingaman's documents and physically disengaged before asking him if he had time for more questions. The patrol car's front lights were not activated. Officer Smith was the only officer present, and he neither touched Klingaman nor used aggressive language. Moreover, as the State correctly points out, the facts of State v. Greer, No. 104,795, 2011 WL 5526554 (Kan.App.2011) (unpublished opinion), are strikingly similar to those of this case. When the officer told Greer he was “free to go,” Greer exited the patrol car, returned to his vehicle, and opened the door. Then the officer exited the patrol car, called Greer's name several times, got his attention, and asked if he could ask him a question before he left. Greer agreed, closed his door, and walked back to where the officer was standing. The Greer court found this to be a consensual encounter. 2011 WL 5526554, at *3–4.
But Greer is distinguishable based on what happened during the consensual encounter. In Greer, the officer asked the driver if he had any marijuana or other contraband in his vehicle, and when the driver said no, the officer obtained consent to search the vehicle. Whereas in this case, the first thing Officer Smith did was question Klingaman about his travel plans, relationship with the passenger, and nature of his recent prison term. Then Officer Smith ordered Klingaman to stand beside the patrol car while he questioned the passenger. Officer Smith learned little during the traffic stop: Klingaman was a nervous, unemployed ex-convict with a valid license, valid vehicle documents, and drug-related priors, who reported (after being forced to estimate) being in Holton for longer than did his passenger. Because the only new information gleaned during the consensual questioning was that Klingaman did not know his passenger very well, Officer Smith kept Klingaman beside the patrol car without reasonable suspicion of illegal activity.
Therefore, the post-traffic stop detention violated Klingaman's rights under the Fourth Amendment to the United States Constitution.
An unconstitutional seizure may taint a driver's consent to search if the nature of the seizure renders the consent involuntary. Conversely, consent to search may purge the taint if the connection between the officer's unconstitutional conduct and the discovery of the challenged evidence became so attenuated as to dissipate the taint. State v. Smith, 286 Kan. 402, 419, 184 P.3d 890 (2008). The factors we must use to determine whether the consent purged the taint are temporal proximity of the unconstitutional seizure and consent, intervening circumstances, and purpose and flagrancy of the officer's misconduct. State v. Rice, 264 Kan. 232, 242, 955 P.2d 1258 (1998); see State v. Parker, 282 Kan. 584, 596, 147 P.3d 115 (2006) (State must prove break in causal connection between illegality and evidence obtained); see also State v. Martin, 285 Kan. 994, 1004, 179 P.3d 457,cert. denied555 U.S. 880 (2008) (explaining flagrancy factor as whether “officer exploit[ed] the unlawful conduct to get to the contraband”).
Klingaman did not consent to a search of his vehicle. But he did consent to a drug dog sniff and, thereby, effectively consented to the extension of his unlawful detention. We must decide whether such consent purged the taint of Klingaman's unlawful detention. Although the district court did not conduct a taint analysis, we may do so because the record on appeal is sufficient. See Martin, 285 Kan. at 1003.
Here, after unlawfully detaining Klingaman, Officer Smith questioned the passenger but learned no suspicious information. Then he returned to Klingaman, asked him if the vehicle contained contraband, and unsuccessfully sought consent to search the vehicle. Just as the district court noted, Officer Smith had no reason to suspect that the vehicle contained contraband when he asked Klingaman for consent to a drug dog sniff. Because Klingaman consented during the unlawful detention, and Officer Smith exploited his own misconduct to get to the drug evidence, the taint of the unlawful detention was not purged.
Accordingly, the district court properly suppressed the drug evidence discovered during the search of Klingaman's vehicle.
Affirmed.