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STATE v. HENRY

August 29, 1990.

STATE OF KANSAS, Appellant,
v.
LEONARD HENRY, Appellee.



The State of Kansas takes an interlocutory appeal from a district court decision suppressing all the evidence obtained from a traffic stop because the stop was not premised on reasonable suspicion. Based upon the stipulation of Henry that he freely and voluntarily consented to the search of his vehicle and the glove compartment in his vehicle, we reverse.

Leonard Henry was charged with possession of methamphetamine and drug paraphernalia. Henry filed a motion to suppress the evidence which was submitted to the court on the following stipulated facts. In August 1989, a Hoisington police officer saw

[14 Kan. App. 2d 417]

      Henry driving a car. The officer recalled hearing that Henry's driver's license had been suspended and decided to stop Henry to check the status of his license. The officer contacted the dispatcher to confirm the owner of the car and the status of Henry's license but did not receive any information back before stopping Henry approximately one block from his home. The officer smelled what he thought to be marijuana. Henry produced a valid driver's license. After verifying the license, the officer asked to search the car and glove compartment. Henry authorized the search, and the officer found drugs in the glove compartment.

The trial court suppressed the evidence obtained after the stop because the stop was not based on an articulable suspicion. The trial court decided that Henry's voluntary consent to the search of the car and glove compartment did not affect the admissibility of the evidence because the initial stop was illegal and the officer suspected that drugs were in the car only after talking with Henry about the traffic offense and observing his physical demeanor. The State filed an interlocutory appeal pursuant to K.S.A. 22-3603.

  K.S.A. 22-2402(1) provides that a law enforcement officer may stop a person in a public place if the officer reasonably suspects the person is committing a crime. The Supreme Court has held that the statute requires that a police officer have a reasonable and articulable suspicion, based on objective facts, that the person stopped has committed, is committing, or is about to commit a crime. State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985). "The reasonableness of the search is determined by the trial court from the facts and circumstances of the case." State v. Kirby, 12 Kan. App. 2d 346, 352-53, 744 P.2d 146 (1987), aff'd 242 Kan. 803, 751 P.2d 1041 (1988). Reasonableness is based on the totality of the circumstances and is viewed in terms as understood by those familiar with the field of law enforcement. State v. Keene, 8 Kan. App. 2d 88, 90, 650 P.2d 716, rev. denied 232 Kan. 876 (1982).

  The State argues the trial court applied the wrong standard in determining whether the officer had a reasonable suspicion to stop Henry. We disagree. The transcript of the trial court's order reflects that the trial court stated the issue was whether the officer had an articulable suspicion to stop Henry to determine whether

[14 Kan. App. 2d 418]

      he was involved in ongoing criminal activity. The trial court then recited all of the facts it considered in ruling on the motion to suppress, which clearly demonstrate that it properly considered the totality of the circumstances.

 1. The stop.

  The trial court granted Henry's motion to suppress and held the evidence seized from the car was inadmissible. In reaching this conclusion, the court held the initial stop was unreasonable because the officer lacked a reasonable and articulable suspicion to justify the stop. The motion to suppress was submitted to the trial court on stipulated facts. In such a case, this court on appellate review has as good an opportunity to examine and consider the evidence as did the trial court; and the proper standard of appellate review is thus de novo. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, 31, 744 P.2d 840 (1987); Crestview Bowl, Inc. v. Womer Constr. Co., 225 Kan. 335, 336, 592 P.2d 74 (1979).

  In Delaware v. Prouse, 440 U.S. 648, 663, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979), the Supreme Court held that arbitrarily stopping a driver to check his license and car registration is unreasonable under the Fourth Amendment. A police officer must have reasonable articulable suspicion the driver is not licensed, the car is not registered, or the vehicle or an occupant is otherwise subject to seizure for a violation of the law. "What is reasonable is based on the totality of circumstances and is viewed in terms as understood by those versed in the field of law enforcement." State v. Keene, 8 Kan. App. 2d at 90 (citing United States v. Cortez, 449 U.S. 411, 66 L.Ed.2d 621, 101 S.Ct. 690 [1981]).

  Here, the officer recalled hearing that Henry's license was suspended or that he did not have a license. The officer's belief was not based on firsthand knowledge. The officer knew Henry and knew where he lived. For reasons not explained in the stipulated facts, the officer determined it was necessary to stop Henry before he reached his home, although the officer had not yet received a response from the dispatcher. The fact that the officer knew Henry, knew where he lived, and had seen him driving obviated the need of stopping him immediately. If warranted by the dispatcher's response, the officer could have later arrested Henry based on his earlier observations. The trial court correctly

[14 Kan. App. 2d 419]

      decided that the officer lacked reasonable articulable ...


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