of the judgment of the Court of Appeals in an unpublished
opinion filed December 11, 2015.
BY THE COURT
about a law enforcement officer's actual, subjective
belief about whether a person stopped is armed and presently
dangerous, if any, may be one factor to consider when
applying the objective reasonableness test used for
evaluating the constitutionality of a frisk under Terry
v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
Appeal from Sedgwick District Court; Christopher M. Magana,
judge. Judgment of the Court of Appeals reversing and
remanding the district court is reversed, and the case is
remanded to the Court of Appeals for reconsideration.
Richard Ney, of Ney & Adams, of Wichita, argued the
cause, and Ian M. Clark, of Wichita, was with him on the
briefs for appellant.
J. Gillett, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with him on the brief for appellee.
John W. Bannon appeals his conviction for criminal carrying
of a firearm in the lobby of the Wheatshocker Apartments on
the campus of Wichita State University (WSU).
district court judge rejected Bannon's motion to suppress
the gun found on him during a police patdown. The Court of
Appeals reversed. We granted the State's petition for
review. We now reverse the Court of Appeals and remand the
case to the panel for reconsideration under the correct legal
and Procedural Background
Bryson Potter of the WSU Police Department received a
complaint that a student at the Wheatshocker Apartments had a
handgun. According to the complaint, the person was named
"John" and was a "[w]hite male, about
5'10", skinny build, [and had] long brown hair"
and lived in either Room 414 or Room 514. After receiving the
complaint, Potter and Officer Phillip Shelite cleared a
burglary alarm in another building on campus and traveled to
Wheatshocker. While they drove, dispatch determined and
reported to the officers that a person by the name of John
Bannon lived in Room 414. Dispatch also contacted the front
desk of Wheatshocker. The resident assistant on duty told
dispatch that "they thought [Bannon] was in the front
lobby at the time."
the officers arrived at the building, they used their WSU
identification cards to unlock the front doors. Once inside,
Potter saw a man sitting in a chair who matched the
description he had been given. The officers approached, and
Potter asked if the man was John. The man, Bannon, said,
"Yes." Potter asked Bannon if he had any weapons on
him, and Bannon said, "No." At that point, Shelite
"helped [Bannon] get up, " had Bannon put his hands
on his head, and patted him down. Shelite found a gun in
was charged with criminal carrying of a firearm under K.S.A.
2012 Supp. 21-6302(a)(4), which prohibited knowingly carrying
a firearm concealed on his person, when not on his land, in
his abode, or in his fixed place of business.
trial, Bannon filed a motion to dismiss, arguing that he
could not be convicted of the charged crime because he had
carried the gun on his land or in his abode. After hearing
arguments from both sides, District Judge John J. Kisner,
Jr., denied the motion.
also filed a motion to suppress the gun, arguing that
"[s]ince the common area of the apartment building, from
which the general public was excluded by a locked door, was
contained in the curtilage of the Defendant's apartment,
the warrantless search of Defendant, in the absence of any
exigent circumstances, was presumptively unreasonable."
He also argued that the stop-and-frisk exception to the
Fourth Amendment's warrant requirement under Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),
did not apply "because the Defendant was not in a public
place at the time he was stopped and searched. Further, even
if it did apply, the officers lacked a reasonable,
articulable suspicion that the Defendant was involved in
criminal activity at the time they seized and searched
him." Finally, Bannon asserted, because "law
enforcement officers did not have probable cause to believe
the Defendant was committing a crime at the time he was
seized and searched, his warrantless arrest cannot be
Judge Christopher Magana held an evidentiary hearing on the
motion. At the hearing, Jennifer Williams, a dispatcher for
the WSU Police Department, and Officers Potter and Shelite
said she was on duty the evening Bannon was arrested. The
parents of WSU student Johnathon Wasserstein came into the
department and told her that "they wanted to speak with
an officer regarding an incident that was reported to them
that had occurred two weeks prior." As a result,
Williams called Potter, the senior officer on duty, to the
waiting for Potter to arrive, Williams overheard the
Wassersteins "talking amongst themselves, saying [that
the person they were complaining about] had reported he
worked for Homeland Security; that their son had seen him
with a .40 caliber-type Glock weapon; and that many comments
had been made to their son that there was M16s in the trunk
of a vehicle." At some point, the Wassersteins also gave
Williams a description of the person in question: "white
male, with a light brown colored leather type jacket, . . .
sitting in a chair in the lobby . . . of Wheatshocker
Apartments." The Wassersteins told Williams that their
son had told them that it was "an everyday occurrence
that this individual carries a weapon on him."
Potter arrived at the station, he spoke to the Wassersteins.
Potter testified that the father told him his son had said
"someone at Wheatshocker worked for Homeland Security
and carried guns all the time." Potter asked where the
son was and if he could speak to him. The father said that
they could go get their son and bring him back to the
station, which the couple did.
Johnathon arrived, Potter asked him "what was going
on." Wasserstein told Potter
"a friend of his or someone he hung out with named John
told him that he worked for Homeland Security. He told him he
did missions. He told me that he'd seen his gun-he had
two guns in a safe in his closet in his room. He said that he
always had a gun on him as well, in his waistband."
asked Johnathon when he had seen the guns in the safe. Potter
testified that, based on the response, "it didn't
seem to me that it was that day that he'd seen them in
the safe. I asked him when did he have a gun on him, and he
said he always has a gun on him." In addition to the
guns in the safe, Johnathon told Potter that John had rifles
in his car and that "there was a lot of ammunition"
in the safe. When Potter asked Wasserstein whether John had a
concealed carry license, Wasserstein told him that John had
told him he did. According to Potter, at the time of the
incident, carrying a concealed handgun in Wheatshocker
Apartments was prohibited "both by law and by . . .
university policy, " even with a concealed carry
license. Johnathon also told Potter that John used Xanax and