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State v. Cook

June 29, 2007

STATE OF KANSAS, APPELLEE,
v.
HOWARD COOK, APPELLANT.



Appeal from Johnson District Court; STEPHEN R. TATUM, judge.

SYLLABUS BY THE COURT

1. The Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, The opinion of the court was delivered by: McANANY, J.

Affirmed.

Before GREENE, P.J., McANANY and BUSER, JJ.

Sergeant Thomas Hongslo was patrolling in the area of I-35 and 95th Street in Johnson County at 11:45 p.m. He was a 14-year veteran of the police force with experience and training in drug intervention, including training at the Operation Pipeline School conducted by the Drug Enforcement Administration, as well as two street narcotics schools. He and other officers patrolled the area because of its high incidence of drug activity and their success in making arrests and recovering narcotics. He had found the area to be particularly suited for narcotics activity because of its convenient location and access to pay phones at two gas stations there. In fact, since 1995 there had been 8 drug arrests at the nearby Phillips 66 station and 13 at the nearby Texaco station. In the 16-block area there had been 668 drug arrests since 1995. Records from the Lenexa Police Department disclose that 32% of all drug arrests in that city occurred within a half square-mile area that included these two gas stations.

Hongslo was in uniform that night but was driving an unmarked car. He observed a gold Dodge pickup truck with tinted windows parked at the Phillips 66 gas station out of the line of sight of the clerk inside the station. When Hongslo drove past the gold truck he made eye contact with the driver, who saw that Hongslo was wearing a police uniform. Hongslo then drove to the parking lot of an adjoining business and continued to observe the gold truck.

After a few minutes, a blue Ford Ranger pickup truck pulled into the gas station and parked directly behind the gold pickup. Howard Cook got out of the passenger's side of the blue truck and walked towards the gold truck. The gold truck started driving away, and Cook slowly jogged toward it and whistled. The gold truck did not stop. Cook returned to the blue truck and the two trucks drove across the bridge spanning I-35 to another nearby gas station, JB's One Stop, located at 95th Street and Noland Road. The gold truck backed into a parking space. The blue truck parked 50 feet away. At that point, Cook got out of the blue truck, ran to the gold truck, and got in on the passenger's side. After less than a minute, Cook returned to the blue truck. The blue truck then drove to the front of the gas station, and Cook got out and went inside the gas station. The gold truck drove away.

Based on his training and experience, the behavior of the two individuals, the time of night, the short time Cook spent in the gold truck, and the location where the vehicles were parked, Hongslo believed a drug transaction had taken place. He radioed for Officer Shannon Trevino to stop the gold truck. Hongslo then observed Cook exit the gas station carrying a red soda can. Cook got into the blue truck which left the scene and drove south on I-35.

Hongslo stopped the blue truck. Its driver, Terrance Brown, told Hongslo that he had driven Cook to the gas station to meet someone to get some clothes. Brown denied knowing anything about a drug transaction and consented to a search of the truck.

Hongslo then asked Cook why he had made contact with the person in the gold truck. Cook responded that he was meeting the person about a job. In the course of searching the truck Hongslo saw a red Coke can on the dashboard in front of the passenger's seat. Inside the soda can, Hongslo saw a plastic bag with a white powdery substance which tests later determined to be cocaine. Cook told Hongslo he had purchased the drugs for $20 from the man in the gold truck, but claimed he had purchased the drugs for Brown.

Trevino stopped and searched the gold truck. He found several stacks of money together with bags of crack cocaine.

Cook moved to suppress the evidence and statements obtained during his arrest. In denying the motion, Chief Judge Tatum stated:

"In the case at hand, Officer Hongslo was able to articulate a number of factors to support a reasonable suspicion. Officer Hongslo testified that the area he was observing was a high crime area, known for numerous drug transactions. Officer Hongslo further testified that the defendant's suspicious conduct, the manner in which the defendants made contact, the time of night, the short time Cook was in Bowen's truck, the location where the trucks were parked, and the fact that Officer Hongslo had observed this type of behavior many times while investigating narcotics activity in the same high crime area, were all factors that formed the basis of his reasonable suspicion. Each of these factors taken individually would be insufficient to support a finding of probable cause. However, taken together, under the totality of the circumstances, the Court finds that Officer Hongslo was able to articulate sufficient factors to support a finding of probable cause. Therefore, Officer Hongslo was justified in stopping the vehicle in which Cook was a passenger in order to investigate further his reasonable suspicion that criminal activity had been, was, or was about to occur."

A bench trial followed and Cook was convicted of possession of cocaine. Cook now appeals the denial of his motion to suppress, claiming Hongslo's stop of the blue truck was not ...


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