Review of the judgment of the Court of Appeals in an unpublished opinion filed May 26, 2006. Appeal from Saline district court; Daniel L. Hebert, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.
1. An appellate court reviews a motion to suppress evidence using a bifurcated standard. First, we review the factual underpinnings using a substantial competent evidence standard. Next, we consider the ultimate legal conclusion drawn from the facts as a question of law subject to unlimited review.
2. A voluntary or consensual encounter is the only type of encounter between citizens and law enforcement officers that does not implicate the protection of the Fourth Amendment.
3. To distinguish consensual encounters from investigatory detentions, courts must determine whether a reasonable person would feel free to go about his or her business and disregard the law enforcement officer.
4. In police-citizen encounters, when distinguishing a consensual encounter from an investigatory detention, there are several objective factors that may be considered to determine whether there was a coercive show of authority such that the person would not feel free to disregard the officer. Those factors include the presence of more than one officer, the display of a weapon, physical contact by the officer, or the use of a commanding tone of voice.
5. Depending on the facts of the case, an individual may consent to a police request for a pat-down search for weapons without transforming a voluntary encounter into an investigatory detention.
6. The requirements for the plain feel exception to the requirement for a search warrant are consistent with the requirements for the plain view exception: (1) The initial intrusion which afforded the authorities the plain view is lawful; (2) the discovery of the evidence is inadvertent; and (3) the incriminating character of the article is immediately apparent to searching authorities.
The opinion of the court was delivered by: Rosen, J.
This matter comes before us on Daniel Lee's petition for review. The district court granted Lee's motion to suppress evidence, and the State appealed. The Court of Appeals reversed the district court's decision, concluding that the evidence was not seized in violation of Lee's Fourth Amendment rights.
The events leading to Lee's arrest began at approximately 10:30 p.m. on July 30, 2005. Two Salina police officers were dispatched to a public park in response to a report that a suspicious man was walking through the park, looking at the ground, and hitting the ground with a stick. The report indicated only that the man's behavior was odd but did not indicate that the man was threatening anyone with the stick or committing a crime.
As the uniformed officers approached the man, who was later identified as Daniel Lee, they observed him looking at the ground and poking it with a stick. One of the officers asked Lee if they could speak with him. Lee continued to look at the ground as if searching for something but agreed to speak with the officers. The officer then asked Lee for identification, and Lee handed the officer his drivers license. The officer then asked Lee why he was in the park. Lee responded that he was looking for a wallet that he had lost the previous week. Although skeptical that the wallet would still be in the park, the officer searched the ground in the immediate area with his flashlight to help Lee look for the wallet.
Lee remained focused on his search for the missing wallet as the officers questioned him. Although Lee's behavior was not threatening, one of the officers asked Lee if he had any weapons. Lee responded affirmatively and removed two legal knives from his pocket, placing them on a nearby picnic table. While Lee continued to search the ground for the wallet, one of the officers asked for permission to conduct a pat-down search for weapons. The officer did not ask Lee to empty his pockets. Without hesitating, Lee consented to the pat-down search for weapons.
During the pat-down, the officer discovered a bulge in Lee's coin pocket. The officer reached into Lee's coin pocket and removed a rolled-up baggie containing a crystalline powder, which resembled methamphetamine. The officer then arrested Lee and placed him in handcuffs. The officers also took custody of Lee's duffel bag and searched it. Inside a ...