Appeal from Sedgwick District Court; CLARK V. OWENS II, judge.
1. The State has the burden of establishing the lawfulness of a search and seizure. When a case is submitted on stipulated facts, the question of whether to grant or to deny a motion to suppress is a question of law subject to unlimited review.
2. During a stop under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,
The opinion of the court was delivered by: Green, J.
Reversed and remanded with directions.
Before MARQUARDT, P.J., GREEN and CAPLINGER, JJ.
Kevin Burton appeals his conviction for possession of marijuana with a previous conviction. The principal issue before us is whether the trial court erred in denying Burton's motion to suppress evidence. In his appeal, Burton raises two issues: (1) whether the police officer feared for his safety, justifying a pat-down search of Burton; and (2) whether the trial court erred in scoring Burton's criminal history. Because we determine that the officer was not justified in making a pat-down search of Burton, we reverse and remand with directions to grant Burton's motion to suppress evidence. We need not consider Burton's challenge to his criminal history based on our decision to reverse this matter.
Officer Jessie Cornwell, a narcotics and gang investigator, received a call at approximately 11:30 p.m. from dispatch concerning a disturbance at the Trail Motel in Wichita. Dispatch indicated that the disturbance involved a white woman and a black man wearing a gray sweatshirt and black vest. These two individuals were last seen walking east from the motel. Three to four minutes later, Cornwell saw two people matching the description given by dispatch walking just east of Broadway on Indianapolis, not far from the motel. Cornwell recognized the black male as Burton from prior experience. Cornwell stopped his patrol car to talk to Burton, while Cornwell's partner talked to the female.
As Cornwell approached Burton, he asked Burton if he had any weapons on him and told him he was going to pat him down. While patting down Burton, Cornwell also asked Burton if he had anything illegal on him. Burton replied that he had a bag of weed in his pocket. Cornwell then asked Burton for consent to search his pocket. Burton consented, and Cornwell found a small bag containing a green botanical substance that Cornwell believed to be marijuana in Burton's front pocket. As a result, Cornwell arrested Burton. At the jail, Cornwell read Burton his Miranda rights. See Miranda v. Arizona, 385 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602, reh. denied 385 U.S. 890 (1966). When Cornwell asked Burton whether he understood those rights, Burton spontaneously said, "The weed's mine." Cornwell then asked Burton if he could question him further, but Burton invoked his right not to answer any more questions.
The State later charged Burton with one count of possession of marijuana after a prior conviction in violation of K.S.A. 65-4162(a). Before trial, Burton moved to suppress his statements and the marijuana evidence. At the hearing on the motion to suppress, Burton argued that Cornwell did not have reasonable suspicion to conduct a Terry stop and that Cornwell's investigation went outside the permissible scope of a Terry stop. See Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968). The trial court disagreed and denied the motion to suppress.
Burton and the State later entered into a bench trial stipulation. After a bench trial on stipulated facts, the trial court found Burton guilty of possession of marijuana after a prior conviction and ordered a presentence investigation (PSI) report.
The PSI report revealed that Burton had at least 39 prior convictions, placing him in a criminal history category of A. After overruling Burton's challenge to his criminal history score, the trial court pronounced him guilty of possession of marijuana after a prior conviction in violation of K.S.A. 65-4162(a). The trial court later granted Burton's motion for departure and sentenced him to 12 months' probation, with assignment to a community corrections residential program. The court imposed an underlying 42-month prison term and 12 months' postrelease supervision.
Did the District Court Err in Denying Burton's Motion to Suppress?
The State has the burden of establishing the lawfulness of the search and seizure. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003). Where, as here, the case was submitted on stipulated facts, the question of whether to grant or to deny a motion to suppress is a question of law subject to unlimited review. State v. Jones, 279 Kan. 71, 74, 106 P.3d 1 (2005).
Neither party disputes this case involved an investigatory stop governed by Terry, 392 U.S. 1, which permits stop and frisk searches under conditions codified in K.S.A. 22-2402 as follows:
"(1) Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect's actions.
"(2) When a law enforcement officer has stopped a person for questioning pursuant to this section and reasonably suspects that such officer's personal safety requires it, such officer may frisk such person for firearms or other dangerous weapons. If the law enforcement officer finds a firearm or weapon, or other thing, the possession of which may be a crime or evidence of crime, such officer may take and keep it until the completion of ...