Review of the judgment of the Court of Appeals in an unpublished opinion filed January 26, 2007. Appeal from Cowley district court; NICHOLAS M. ST. PETER, judge. Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed and remanded.
1. Under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, a passenger in a vehicle is seized when a law enforcement officer stops the vehicle through a show of authority and the passenger does not flee.
2. Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005), does not alter the general rule that a law enforcement officer violates the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights by asking a passenger in a vehicle stopped for a traffic violation to consent to a search that is unrelated to the purpose of the stop.
3. An unconstitutional seizure may infect or taint a consent to search as well as any fruits of a law-enforcement-citizen encounter if the nature of the seizure renders the consent to search involuntary. Conversely, a voluntary consent to search can purge the primary taint of an illegal seizure where the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.
The opinion of the court was delivered by: Luckert, J.
In Muehler v. Mena, 544 U.S. 93, 161 L.Ed. 2d 299, 125 S.Ct. 1465 (2005), the United States Supreme Court held that law enforcement officers could ask questions unrelated to the purpose of a search when executing a warrant authorizing the search of a residence. This case raises the question of whether that decision alters our longstanding rule that a law enforcement officer violates the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights by asking a passenger in a vehicle stopped for a traffic violation to consent to a search that is unrelated to the purpose of the stop.
We conclude it does not. Mena does not overrule longstanding precedent limiting the scope of an investigatory detention, does not address the question of the scope of an investigatory detention, and is factually and legally distinguishable from this case.
In the early morning hours of September 22, 2005, Officer Nick Carter saw a vehicle with a broken taillight driving down a road in Winfield, Kansas. Carter followed the vehicle. Before he could signal the driver to pull over, the driver parked the vehicle in an angled parking space on the side of the street. Carter stopped his patrol car behind it and activated the emergency lights. While checking the license plate number with the dispatcher, Officer Carter noticed the vehicle had expired tags. The driver got out and approached the patrol car. Carter spoke to the driver about the reason for the stop (the broken taillight) and also asked him about the expired tag. When Officer Carter checked the vehicle's tag information and VIN number with police dispatch, he discovered that the tag was illegal. The driver told Carter that the car belonged to his girlfriend and he did not know anything about the tag. According to Carter's testimony, "the vehicle was going to be towed; [and] the driver was going to get a citation."
Lacey Smith, who was a passenger in the stopped vehicle, got out of the car and sat down on some nearby steps while Officer Carter spoke to the driver. Carter recognized Smith and knew her by name. He testified that Smith was not the registered owner of the car or the license tag, and he did not believe Smith was the driver's girlfriend. Aside from briefly greeting Smith, Officer Carter interacted solely with the driver of the vehicle.
Meanwhile, Officer Cory Gale heard over the police radio that Carter had made the stop. Gale drove to the scene to provide backup assistance, a practice he indicated was common during nighttime stops. After seeing Smith sitting near the vehicle, Officer Gale also recognized her and determined she was a passenger. Based on information received sometime before this traffic stop, Gale suspected Smith possessed drugs and intended to ask her permission to search her purse. Gale approached Smith and asked how she was doing and if he could look inside her purse. Smith consented, and inside her purse, Gale discovered a bag containing methamphetamine. Officer Gale arrested Smith and took her to the police station.
Officer Carter was still in the process of issuing a citation to the driver when Officer Gale and Smith left the scene. At the police station, Gale discovered further incriminating evidence in Smith's possession, including drug paraphernalia. Smith also made some incriminating statements.
The State charged Smith with felony possession of methamphetamine and misdemeanor possession of drug paraphernalia. Smith filed a motion to suppress the evidence seized during the search of her purse and person and to suppress her subsequent incriminating statements. At the hearing on the motion, the State conceded that Officer Gale did not have reasonable suspicion to search Smith's purse. It argued instead that Smith consented to the search.
The district court found that Smith had been lawfully seized but the questions Officer Gale asked her at the beginning of the encounter exceeded the scope of the stop and were improper. The court also found that Smith's consent was given during the seizure and there was not a "sufficient attenuation of a seizure to justify the search." Therefore, Smith's motion to suppress was granted.
The district court subsequently granted the State's request for permission to file an interlocutory appeal. The State perfected its appeal to the Court of Appeals, where the district court's decision was reversed. In so ruling, the Court of Appeals rejected the State's contention that Smith was never "seized" by authorities. Rather, the panel concluded the broken taillight provided a basis for a legal seizure and Smith was subject to a Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968), investigatory detention.
The panel pointed out that when Officer Gale arrived on the scene he immediately contacted Smith and questioned her about matters unrelated to the taillight. The Court of Appeals stated: "Prior to the case of Muehler v. Mena, 544 U.S. 93, 161 L.Ed. 2d 299, 125 S.Ct. 1465 (2005), this would have rendered the seizure illegal because such questioning was unrelated to the purpose of the traffic stop and fell outside of the permissible scope of a Terry-based detention." Slip op. at 6. The panel concluded Mena permits officers to question a person during a lawful detention about matters unrelated to the reason for the detention. Therefore, the panel found Gale could question Smith about matters unrelated to the purpose of the stop, i.e., the broken taillight, so long as the questions did not increase the duration of the stop.
The Court of Appeals observed that Officer Gale asked Smith two questions in quick succession: how she was doing and whether he could search her purse. Neither of these questions, according to the panel, extended the length of the traffic stop. The panel highlighted the fact that Officer Carter was still in the process of issuing the citation to the driver when Officer Gale arrested Smith.
With regard to the question of Smith's consent, the panel stated it was not faced with the issue of whether her consent removed the taint of a prior violation of Smith's Fourth Amendment rights. This conclusion was explained by the panel's determination that Smith was "lawfully seized and had suffered no violation of her rights." Slip op. at 7-8. Thus, in the panel's view, it was left only with the issue of whether Smith's consent was voluntary.
Finding that Smith, under a legal detention, offered nothing to indicate she was forced or coerced in any manner to permit Officer Gale to search her purse, the Court of Appeals held that Smith's consent provided the legal basis for the search. Because the panel determined that the search of Smith's purse was legal, it also found that the evidence discovered in her possession at the police station and any incriminating statements made later by Smith did not constitute fruit of the poisonous tree. The district court, therefore, was reversed.
We now consider Smith's petition for review.
Our standard of review is well known. An appellate court reviews the factual underpinnings of the decision on a suppression motion by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). Appellate courts do not reweigh evidence, assess the credibility of witnesses, or resolve conflicts in the evidence. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006); State v. Jones, 279 Kan. 71, 73, 106 P.3d 1 (2005). The State has the burden of proving that a search and seizure was lawful. Thompson, 284 Kan. at 772; State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).
The issue in this case arises under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, which assure each person's right to be secure in his or her person and property against unreasonable searches and seizures. An analysis of the motion to suppress requires a determination of whether ...