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State v. Greever

May 16, 2008

STATE OF KANSAS, APPELLEE,
v.
SHANON S. GREEVER, APPELLANT.



Review of the judgment of the Court of Appeals in 37 Kan. App. 2d 145, 150 P.3d 918 (2007). Appeal from Reno district court; TIMOTHY J. CHAMBERS, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed, and the case is remanded with directions.

SYLLABUS BY THE COURT

1. A new issue raised in a letter submitted pursuant to Supreme Court Rule 6.09 (2007 Kan. Ct. R. Annot 45) is generally not preserved for review before an appellate court. This is particularly true in this case where the issue was not briefed by the parties, was not identified or discussed in the Court of Appeals opinion, and was not identified as an issue in the petition for review before this court.

2. When considering a district court's decision regarding the suppression of evidence, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. Appellate courts do not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.

3. Where a district court's grant or denial of a motion to suppress is based on its interpretation of a particular statute, an appellate court is not bound by the district court's interpretation. Rather, the interpretation of a statute is a question of law over which an appellate court has unlimited review.

4. When a court is called upon to interpret a statute, it must first attempt to give effect to the intent of the legislature as expressed through the language enacted. When a statute is plain and unambiguous, courts do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it; courts need not resort to statutory construction. It is only if the statute's language or text is unclear or ambiguous that a court should move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature's intent.

5. The guarantee against unreasonable seizures in the Fourth Amendment to the United States Constitution relates not only to a person's rights upon arrest, but also to whenever a police officer accosts an individual and restrains his or her freedom to walk away. When the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen, a seizure has occurred implicating constitutional protection.

6. Under K.S.A. 22-2402(1), a law enforcement officer may stop any person in a public place based upon specific and articulable facts raising a reasonable suspicion that such person is committing, has committed, or is about to commit a crime.

7. If a district court reaches the right result, its decision will be upheld even though the court relied upon the wrong ground or assigned erroneous reasons for its decision.

8. The plain language of K.S.A. 8-1548 provides that anyone turning a vehicle must provide an appropriate signal--namely, a turn signal given continuously for at least 100 feet before the turn. The statute does not provide any exception to this rule, nor does it indicate that a person must possess a particular criminal intent in order to be found guilty of the infraction described.

9. When a statute makes a particular behavior unlawful without including any requirement of criminal intent or exception to its application, a violation of that statute is an absolute liability offense. The principle of substantial compliance does not apply when an infraction is an absolute liability offense.

10. The United States Supreme Court has explained that when an officer can articulate facts demonstrating probable cause existed for the officer to suspect that the accused committed a crime, the seizure is valid even though it may be pretextual. Thus, when probable cause exists to conduct a traffic stop, a court will not invalidate that stop on the basis of the officer's motives.

11. If a law enforcement officer observes a person violate K.S.A. 8-1548, then the officer has probable cause to seize that person for purposes of investigating the violation.

The opinion of the court was delivered by: Davis, J.

After the denial of his pretrial motion to suppress evidence, Shanon S. Greever was convicted of possession of marijuana and possession of marijuana without drug tax stamps affixed. The Court of Appeals decided that the evidence in question should have been suppressed because the initial traffic stop was illegal, rendering the seizure a violation of the defendant's rights under the Fourth Amendment to the United States Constitution, and therefore reversed Greever's convictions. State v. Greever, 37 Kan. App. 2d 145, 150 P.3d 918 (2007). We granted the State's petition for review, reverse the decision of the Court of Appeals, and affirm the district court as to the issues before us.

Facts

On March 17, 2004, at about 2:30 p.m., Reno County Deputy Sheriff Justin Maxfield was on duty and stopped at a stop sign at the intersection of Scott Boulevard and U.S. Highway 50 in Reno County. Because of bridge construction, the Scott Boulevard-U.S. 50 intersection formed a "T," with southbound Scott Boulevard terminating at U.S. Highway 50.

Deputy Maxfield observed in his rear view mirror a white car approaching him from the rear. The driver, "a white male occupant with long hair and a hat," was talking on the cell phone as he neared the intersection. The driver displayed a turn signal only after his vehicle came to a complete stop behind Deputy Maxfield's police cruiser.

Deputy Maxfield turned east through the intersection and pulled over to the side of the road but did not activate his emergency lights or siren. He then waited for the white car and a semi-truck and trailer to pass, after which he reentered the roadway with the intent to stop the white car for failure to properly use its turn signal. However, the deputy lost sight of the car around the semi-truck, and soon he noticed that the white car was no longer in front of the truck. When he realized this, Maxfield turned his vehicle around and located the white car parked on Bonebrake Street.

Maxfield pulled up behind the white car, exited his patrol car, and approached the driver's side of the vehicle. When the driver, Shanon Greever, noticed the officer had arrived at his window, he acknowledged that he had not properly used his turn signal, explaining that he was distracted because he was talking on his cellular phone as he approached the intersection.

Maxfield smelled the odor of marijuana wafting from the passenger compartment of Greever's vehicle. Likewise, when Greever was searching for his insurance and registration documentation, Maxfield observed an item he thought was drug paraphernalia.

Upon seeing and smelling what he believed to be drug-related activity, the deputy asked Greever to exit his vehicle and advised Greever of his Miranda rights from memory. Maxfield then asked Greever if he would be willing to answer some questions; Greever responded that his answer would depend on the questions asked.

Maxfield asked Greever whether he had marijuana in the car or on his person; Greever responded that he had no marijuana. Greever then asked the deputy if he could call his lawyer before Maxfield conducted a pat-down search, and Maxfield answered that he could not call his lawyer "right at that moment."

Following this conversation, Maxfield conducted a pat-down search of Greever and felt a large, bulky item in Greever's pocket. Maxfield asked Greever what the item was, and Greever told him it was "weed"--a term the deputy recognized as a slang word describing marijuana. Maxfield removed the marijuana from Greever's pocket and asked if he had any other marijuana on his person. Greever stated that he had a "quarter"--a 1/4 ounce of marijuana--in another pocket. Although Maxfield was unable to find that second amount of marijuana, he later determined it was really a portion of the bulge already seized. Greever told the deputy that he was holding the marijuana for some friends.

In addition to the marijuana seized from Greever's pocket, Maxfield observed rolling papers and marijuana roaches in Greever's car.

Following this encounter, Greever was arrested and taken to the Reno County Detention Center. On the way to the center, Greever engaged Maxfield in a lengthy discussion regarding the issue of whether marijuana should be legalized. In particular, Greever informed Maxfield that marijuana should be legalized and that he intended to tell the district court that it "should either deport him, kill him, or accept him as he was because he wasn't going to stop using marijuana."

District Court Proceedings

A complaint was filed in Reno County District Court charging Greever with possession of marijuana with the intent to sell and possession of marijuana without tax stamps affixed.

Prior to trial, Greever filed a motion to suppress his statements and the evidence resulting from the traffic stop. During a hearing on the motion, Deputy Maxfield testified to the events as described above. Greever also testified, claiming that he turned his turn signal on prior to approaching the intersection. The defendant denied having admitted to Maxfield his failure to use a turn signal during the initial stop. However, the defendant stated that he stopped his car voluntarily to continue his cell phone conversation and that he agreed to exit the car to speak with the deputy because "[he didn't] see any reason why [he] shouldn't." The defendant stated on cross-examination that he did not notice the lights on the deputy's patrol car until after the deputy tapped on his driver-side window.

While the district court questioned whether failure to use a turn signal would be a traffic violation if the vehicle could not proceed straight ahead, the court ultimately found that this question was moot because Greever had not been seized by the deputy. The court concluded that the odor of marijuana provided a reasonable suspicion to conduct a pat-down search. The court denied Greever's motion to suppress the evidence seized from his person and car. However, ...


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