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State v. Gross

June 6, 2008; as amended August 6, 2008

STATE OF KANSAS, APPELLEE,
v.
VANESSA GROSS, APPELLANT.



Appeal from Sedgwick District Court; CLARK V. OWENS II and DAVID J. KAUFMAN, judges.

SYLLABUS BY THE COURT

1. When reviewing a trial court's decision regarding suppression, 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. An appellate court does not reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.

2. The State bears the burden of proof for a suppression motion. The State must prove to the trial court the lawfulness of the search and seizure.

3. The Fourth Amendment to the United States Constitution applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. This requires an officer to have reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.

4. An officer has seized a person when there is an application of physical force or a show of authority which, under the totality of circumstances, would cause a reasonable person to feel that he or she is not free to leave.

5. Because the determination of whether a reasonable person would feel free to terminate an officer-citizen encounter or refuse to answer questions is fact-driven, no list of factors can be exhaustive or exclusive.

6. A law enforcement officer's subjective intent to detain an individual is relevant for Fourth Amendment purposes, to the extent that the individual being detained is made aware of this intent.

7. The scope and duration of an investigative detention must be strictly tied to and justified by the circumstances that rendered its initiation proper. An investigative detention must last no longer than is necessary to effectuate the purpose of the stop.

8. For reasonable suspicion to exist, there must be a particularized and objective basis for suspecting the person stopped of criminal activity. The law enforcement officer must be able to articulate something more than an inchoate or an unparticularized suspicion or hunch.

9. After an individual has been unlawfully detained, the individual's responses to law enforcement officers' questions are tainted by the illegal detention and cannot be used to support reasonable suspicion for the detention and a resulting search.

10. Any evidence that is obtained by law enforcement officers as a result of an unlawful stop or detention must be suppressed as fruit of the poisonous tree.

11. Under the facts of this case, the detention of the passenger exceeded the scope of any stop or detention of the driver for a parking violation. Because the officers did not have reasonable suspicion that the passenger was involved in criminal activity to justify her detention, the evidence obtained during the course of her unlawful detention and resulting search must be suppressed.

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

Reversed and remanded with directions.

Before HILL, P.J., GREEN and STANDRIDGE, JJ.

After being convicted at a bench trial of one count of possession of cocaine in violation of K.S.A. 2004 Supp. 65-4160(a), Vanessa Gross appeals from the trial court's denial of her motion to suppress evidence. On appeal, Gross argues that the trial court erred in finding that there was reasonable suspicion to support her detention. We agree. Although the State contends that the officers' encounter with Gross was a voluntary encounter, the totality of the circumstances in this case established that the officers made such a show of authority that a reasonable person in Gross' position would not have felt free to disregard the officers and terminate the encounter. As a result, the officers' encounter with Gross was an investigatory detention. Because the officers in this case did not have a particularized and objective basis for suspecting Gross of criminal activity, the detention was not supported by reasonable suspicion and was unlawful. As a result, the evidence obtained during the course of the unlawful detention and the resulting search of Gross must be suppressed as fruit of the poisonous tree.

Finally, Gross argues that she was unlawfully subjected to a body cavity search. Nevertheless, because we have ordered suppression of the evidence that was obtained during the search of Gross, this issue is moot. Accordingly, we reverse and remand for a new trial without the evidence obtained during the unlawful detention, including the evidence seized in the search of the car and the evidence obtained during the search of Gross.

One afternoon in March 2005, Officers Christopher Mains and Patrick Boucard were on patrol in a marked police car in Wichita when Boucard saw a parked car with the driver outside of the car. Boucard noticed that upon seeing the police car, the driver "snapped his neck back" once, quickly got into his car, and started driving. Mains, who was driving the patrol car, made a u-turn and followed the car. The car traveled a short distance and then abruptly parked. The driver, later identified as Ivan Stroot, got out of the car and started walking towards a house. Mains estimated that the car was parked approximately 4 to 5 feet from a driveway. Mains testified that parking within 8 feet of a driveway was a parking violation.

Mains pulled the patrol car parallel to the parked car. Boucard, who was seated in the passenger seat of the patrol car with his window rolled down, called out to Stroot. This initial contact occurred around 4:45 p.m. Noticing that the parked car had a Missouri license plate, Boucard asked Stroot if he was from Kansas City. Stroot replied that he was not from Kansas City. Boucard told Stroot that his car was illegally parked too close to a driveway. Boucard asked Stroot what he was doing there. Stroot looked around and stated that he was going to a friend's house. Stroot pointed to a house near where he was parked. Boucard asked for the friend's name. Stroot said that he did not know. While talking with Stroot, Boucard noticed that Stroot kept looking towards his car. Although Stroot's car had tinted windows, Boucard saw movement within it and knew that there was a passenger inside the car.

Boucard testified that he believed Stroot was being untruthful and that Stroot was trying to distance himself from his car because there was something illegal in it. Boucard got out of the car and ordered Stroot to the back of the patrol car. According to Boucard, both Stroot and the passenger were detained at that point and were not free to leave. Boucard questioned Stroot about where he was going, whether he had ever been arrested, his drug history, and the passenger in his car. When Stroot said that his girlfriend was in the car, Boucard asked Stroot how long he had been with his girlfriend and whether they had a sexual relationship. According to Boucard, Stroot was very nervous and "was stuttering and hesitating on why he was there," during their conversation. Boucard accused Stroot of lying, but Stroot initially denied that he was lying.

While Boucard was talking with Stroot at the back of the patrol car, Mains walked over to Stroot's car and spoke with the passenger. Mains indicated that either the window was down or the door was open. During cross-examination, however, Mains acknowledged that he had Gross roll down the window or open the door. The passenger, who was still seated in the car, identified herself as Gross. When Mains began asking questions, Gross was initially reluctant to answer. Nevertheless, Gross eventually responded to Mains' questions. Mains asked Gross what they were doing there. Gross stated that she was there to visit her friend. Gross could not tell Mains the name of the friend she was visiting.

At some point during Boucard's questioning of Stroot, Stroot admitted that he was lying about visiting a friend. Boucard indicated that while Mains was talking to Gross Stroot admitted that he was lying . Mains testified that he walked over to Boucard and Stroot and told Stroot that his and Gross' stories did not match. Stroot admitted to Boucard that he was not there to see anyone. Stroot stated that he was lying because he was nervous. Sometime during his conversation with Boucard, Stroot also admitted that he had been arrested for "narcotics," that he had recently gotten out of jail, and that he was still using marijuana.

Boucard walked over to the passenger side of Stroot's car and asked Gross to open the door. After Gross opened the passenger door, Boucard stood between the open door and the interior of the car to speak with Gross. Boucard asked Gross for her name, age, race, birthday, social security number, and address. According to Boucard, Gross became irritated with his questions. When Gross asked why she had to give her address, Boucard told her that they were investigating suspicious activity and that he had the right to ask her who she was. Boucard told Gross that she had to identify herself to his satisfaction, which she had not done.

When Boucard asked Gross if she knew the people at the house where Stroot had pointed, Gross responded that she did. Boucard told Gross that Stroot had admitted he was lying. At that point, Gross admitted that she was lying and that she was not there to see a friend at the house.

While he was speaking with Gross, Boucard smelled an odor of burnt marijuana coming from the interior of the car. After he smelled the odor of burnt marijuana, Boucard ordered Gross out of the car because a search of the car was going to be performed. Boucard testified that 10 to 15 minutes had elapsed between his initial contact with Stroot and when Gross was ordered out of the car. On the other hand, Mains testified that the search of the car occurred approximately 45 minutes after the initial stop. During the search of the car, Mains discovered some residue on the front passenger seat, a piece of glass that appeared to be a crack pipe, and an Altoids tin containing what appeared to be marijuana. Field testing of the residue from the front passenger seat indicated the possible presence of cocaine.

According to Boucard, Mains had backed up the patrol car and had pulled it behind Stroot's car when he ordered Stroot to the back of the patrol car. Boucard further testified that although the patrol car's emergency lights were not activated when they first made contact with Stroot, the lights were turned on after Mains had moved the car behind Stroot's car. On the other hand, Mains testified that he thought he moved the patrol car behind Stroot's car and activated the emergency lights after he found the items in the car.

Around the time that the items were discovered during the car search, Gross said that she needed to use the bathroom and began walking away from the scene. According to Boucard, Gross was taking small steps and walking "like her knees were locked together." At that point, Boucard called a female officer to the scene to do a patdown and search. Gross was placed in the back of a patrol car and interviewed by another officer who was at the scene.

At approximately 5:32 p.m., Boucard interviewed Stroot about the items found in the car. At that point, Stroot had waived his Miranda rights. During the interview, Stroot denied any knowledge of drugs or drug paraphernalia found in the car. Stroot stated that after he had parked the car, ...


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