Appeal from Harvey District Court, JOE DICKINSON, judge.
1. When the material facts to a district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress the evidence is a question of law over which an appellate court has unlimited review.
2. The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures of persons. Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution.
3. There are four types of police-citizen encounters: voluntary encounters, investigatory detentions or Terry stops, public safety stops, and arrests.
4. A voluntary encounter is not considered a seizure under the Fourth Amendment. An encounter between a citizen and a law enforcement officer in a public place is considered voluntary as long as a reasonable person would feel free to decline the officer's requests for information or otherwise terminate the encounter. This determination must be made by examining the totality of the circumstances.
5. A law enforcement officer is not required to inform a citizen that he or she is free to go before an encounter can be considered voluntary, but this is one factor to be considered under the totality of the circumstances.
6. A seizure of a person occurs if there is the application of physical force or if there is a show of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority.
7. Under the facts of this case, the defendant's contact with the police officer was a voluntary encounter and the defendant's Fourth Amendment rights were not implicated.
The opinion of the court was delivered by: Malone, J.
Before PIERRON, P.J., MALONE and BUSER, JJ.
Tracey A. Young appeals his convictions of one count of possession of methamphetamine and one count of possession of drug paraphernalia. Young claims the district court erred in denying his motion to suppress evidence. Young had been approached by a police officer in a city park, and he consented to a search of his person, which led to his arrest. This case raises a single issue: Was Young's contact with the police officer a voluntary encounter or an investigatory detention?
The facts are undisputed. While on routine patrol in the evening of February 25, 2005, Officer Brian Rousseau saw Young and Richard Beatty in a city park in Newton, Kansas. From his patrol vehicle, Rousseau observed Beatty hand something to Young, and the two men parted ways. Rousseau had prior contacts with Beatty and knew that he was involved with illegal drugs. Based on his observation of the exchange, Rousseau believed he may have witnessed a drug transaction.
Rousseau continued to observe Young as he walked through the park. Prior to Young leaving the park, Rousseau exited his vehicle and approached him on foot. According to Rousseau's testimony, the following exchange took place:
"Q: [By the State] Officer Rousseau, when you made contact with Mr. Young, what happened then?
"A: I asked him what was up, what was going on, where he was headed. He told me his girlfriend's house. I asked where he was coming from, he said his apartment complex on Boyd.
"Q: Okay. Did you--during your conversation with Mr. Young did you ob-- did anything catch your attention?
"A: While speaking with him I smelled a pretty strong odor of marijuana emitting from his person.
"Q: What did that prompt you to do?
"A: Based on what I observed between him and the--the subject who was later identified as Richard Beatty, I asked him if he had anything illegal on his person.
"Q: What did you ask him after that?
"A: I asked him if he minded if I could search him.
"Q: And what were you searching for, did you tell him that?
"A: I just asked him if I could search him for illegal contraband.
"Q: And what was his response to that?
"A: He said I could search him.
"Q: Okay. What did you do after you received permission to search his person?
"A: Um, I felt on the outside of his right front pocket and, uh, while searching or feeling that pocket I felt a long tube in ...