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State v. Brewer

Court of Appeals of Kansas

July 12, 2013

STATE of Kansas, Appellee,
v.
Sirmark K. BREWER, Appellant.

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[Copyrighted Material Omitted]

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Syllabus by the Court

1. An appellate court uses a bifurcated standard to review a district court's decision on a motion to suppress. Without reweighing the evidence, the appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. The district court's ultimate legal conclusion is reviewed de novo.

2. The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Section 15 of the Kansas Constitution Bill of Rights provides identical protection to the Fourth Amendment.

3. A traffic stop is a seizure under the purview of the Fourth Amendment. In order to stop a vehicle, an officer must have articulable facts sufficient to constitute reasonable suspicion that the operator of the vehicle is committing, has committed, or is about to commit a crime. A traffic violation provides an objectively valid reason to effectuate a traffic stop, even if the stop is pretextual.

4. A warrantless search by a police officer is per se unreasonable under the Fourth Amendment unless the State can fit the search within one of the recognized exceptions to the warrant requirement, one of which is probable cause plus exigent circumstances. Probable cause to search a vehicle can be established if the totality of the circumstances indicates there is a fair probability that the vehicle contains contraband or evidence of a crime. The mobility of the vehicle provides the exigent circumstances without the necessity of proving anything more. If a vehicle is readily mobile and probable cause exists to believe the vehicle contains contraband or evidence of a crime, the Fourth Amendment does not require a warrant for police to search the vehicle.

5. [49 Kan.App.2d 103] An indigent criminal defendant has a right to be represented by counsel but does not have the right to be represented by a particular counsel. The decision to appoint substitute counsel depends on the circumstances of the case, and the district court possesses broad discretion in determining whether to appoint substitute counsel. An appellate court reviews the district court's decision on a motion for substitute counsel for abuse of discretion.

6. To warrant substitute counsel, a defendant must show justifiable dissatisfaction with appointed counsel. Justifiable dissatisfaction includes a showing of a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant. Before determining whether to appoint substitute counsel, the district court must make some inquiry into the defendant's complaints.

Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant.

Jeffery Ebel, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., LEBEN and ARNOLD-BURGER, JJ.

MALONE, C.J.

Sirmark K. Brewer appeals his convictions of multiple drug-related offenses and a traffic offense. Brewer claims the district court erred in denying his motion to suppress evidence of the drugs found in the vehicle he was driving. He also claims the district court erred in denying his motion for substitute

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counsel during his jury trial. Finding no reversible error, we affirm the district court's judgment.

Brewer was charged with multiple drug-related and traffic offenses stemming from an encounter with law enforcement during the early morning hours of February 18, 2010. According to the charging affidavit, a police officer noticed two potential traffic offenses related to the vehicle that Brewer was driving. The officer followed the vehicle for a few minutes until it stopped in a driveway. The officer made contact with Brewer and ultimately conducted an exterior air sniff of the vehicle using a K-9 dog that was riding in the officer's vehicle. The K-9 exhibited behavior changes indicating an alert to the odor of drugs. During a subsequent search [49 Kan.App.2d 104] of the interior of the vehicle, the officer found substances that appeared to be marijuana and methamphetamine.

Brewer filed a motion to suppress the evidence of the drugs found in the vehicle. The district court held an evidentiary hearing on the motion. At the hearing, Officer Aaron Carswell testified that he noticed that the vehicle Brewer was driving had very dark tinted windows and that the temporary license tag appeared to have been altered with some markings on the tag. Based on conversations with other law enforcement officers, Carswell was informed that Brewer might be driving the vehicle and that Brewer and the vehicle might be associated with drug activity. Carswell followed the vehicle for six or seven blocks. When the vehicle pulled into the driveway of a residence, Carswell stopped at the end of the driveway and activated his emergency lights.

Brewer quickly exited the vehicle and began walking toward the front door of the residence, at which point Carswell stopped him and asked him for his driver's license as well as the registration and proof of insurance for the vehicle. Brewer handed Carswell a Texas driver's license. According to Carswell, Brewer was acting nervous and did not appear to want anything to do with the vehicle. Brewer was hesitant to return to the vehicle, and Carswell had to ask several times for Brewer to retrieve his papers from the vehicle. When Brewer finally did so, he opened the passenger door, reached inside the glove box, and quickly closed the passenger door without ever sitting inside the vehicle, which Carswell thought was suspicious.

Carswell called dispatch to check the status of Brewer's Texas driver's license, which was confirmed to be valid. Because Carswell was reasonably certain that Brewer also had a Kansas driver's license that had been suspended, he began to check that status as well. Meanwhile, a second police officer arrived, and Carswell advised him of the situation. When informed by dispatch that Brewer's Kansas driver's license was in fact suspended, Carswell asked the other officer to write a traffic citation.

While the other officer was writing a citation, Carswell used a K-9 to conduct an exterior air sniff of the vehicle. The K-9 sniff was initiated about 10 to 12 minutes after the vehicle stop. Carswell [49 Kan.App.2d 105] testified that the K-9 was certified annually and underwent ongoing monthly training. He estimated that the K-9's false positive rate was about 10 percent. Carswell and the K-9 made several passes around the vehicle, and each time the K-9 stopped at the passenger door and made behavior changes indicating an alert to the odor of drugs. Carswell asked Brewer for the keys to the vehicle, which Brewer had locked when he exited. Instead of giving Carswell the keys, Brewer walked to the front door of the residence and put the keys inside. Carswell contacted Brewer's girlfriend, who was inside the residence, and eventually ...


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