BY THE COURT
K.S.A. 22-3216(1), which permits a defendant aggrieved by an
unlawful search and seizure to move to suppress evidence,
provides a suppression remedy for a violation of Kansas'
biased-based policing statutes, K.S.A. 2014 Supp. 22-4606
district judge considering a motion to suppress based on an
alleged violation of Kansas' biased-based policing
statutes, K.S.A. 2014 Supp. 22-4606 et seq., must
examine more than a law enforcement officer's ultimate
justification for a traffic stop-i.e., more than whether the
officer observed a traffic offense. The judge must consider
whether the officer unreasonably used race, ethnicity,
national origin, gender, or religion in deciding to initiate
the enforcement action.
K.S.A. 22-3216(2) requires a motion to suppress to be in
writing and to state facts showing that a search and seizure
were unlawful. Thus, a defendant asserting biased-based
policing in violation of K.S.A. 2014 Supp. 22-4606(d) and
22-4609 must state that the defendant's race, ethnicity,
national origin, gender, or religion was unreasonably used by
a law enforcement officer in deciding to initiate a traffic
Under K.S.A. 22-3216(2), once a defendant has filed a motion
to suppress stating the basis for the claim that a search and
seizure were unlawful, the State has the burden of proving
that the search and seizure were lawful. To meet this burden
when a defendant has alleged a violation of K.S.A. 2014 Supp.
22-4606(d) and 22-4609, the State must establish that neither
race, ethnicity, national origin, gender, nor religion were
unreasonably used by a law enforcement officer in deciding to
initiate an enforcement action.
of the judgment of the Court of Appeals in 51 Kan.App.2d
1085, 360 P.3d 472 (2015). Appeal from Harvey District Court;
Joe Dickinson, judge. Opinion filed October 27, 2017.
Judgment of the Court of Appeals affirming in part and
reversing in part the district court is reversed on the
issues subject to our review. Judgment of the district court
is reversed on the issues subject to our review, and the case
is remanded with directions.
Randall L. Hodgkinson, of Kansas Appellate Defender Office,
argued the cause and was on the brief for appellant.
R. Lane, chief deputy county attorney, argued the cause, and
David E. Yoder, county attorney, and Derek Schmidt, attorney
general, were with him on the brief for appellee.
2014 Supp. 22-4609 provides in part: "It is unlawful to
use racial or other biased-based policing in: . . . (b)
constituting a reasonable and articulable suspicion that an
offense has been or is being committed so as to justify the
detention of an individual or the investigatory stop of a
vehicle." Marcus Gray alleged a law enforcement officer
violated this statute in stopping him for a traffic
infraction. Gray unsuccessfully urged the district court to
conclude this violation required suppression of any evidence
obtained during the traffic stop under K.S.A. 22-3216(1).
That statute allows "a defendant aggrieved by an
unlawful search and seizure [to] move for the return of
property and to suppress as evidence anything so
not had occasion to consider the biased-based policing
statute and the suppression statute together. In State v.
Gray, 51 Kan.App.2d 1085, 360 P.3d 472 (2015), a panel
of the Kansas Court of Appeals agreed with Gray's legal
theory that these two statutes provide a suppression remedy
for unlawful biased-based policing. Yet the panel affirmed
the denial of Gray's motion to suppress because
substantial competent evidence supported the district
judge's determination that Gray was not actually stopped
because of his race. 51 Kan.App.2d at 1092-97. Gray
petitioned this court for review of the panel's decision.
first determine that the Court of Appeals and district court
correctly concluded that Kansas law provides a suppression
remedy for a violation of the biased-based policing
provisions in K.S.A. 2014 Supp. 22-4609. We then consider and
set forth the test for determining whether a biased-based
policing violation occurred. Here, we cannot be confident the
district judge examined any unreasonable "use" of
race in the traffic stop, which is the conduct prohibited by
K.S.A. 2014 Supp. 22-4609, as opposed to examining whether
Gray's race was the ultimate "cause" of the
traffic stop. Accordingly, we reverse the Court of Appeals
and district court decisions in this case, vacate Gray's
convictions, and remand to the district court for further
action in accordance with this decision. Our decision on this
point means Gray's other preserved issue is moot, and we
do not reach it.
and Procedural History
appeal focuses on Gray's motion to suppress and the
evidence presented at the hearing on that motion.
State called Deputy Brandon Huntley of the Harvey County
Sheriff's Office, who had arrested Gray. The deputy saw a
Ford Focus driving north on Interstate 135 (I-135) between
Wichita and Newton at approximately 2 a.m. on November 10,
2013. The deputy decided to follow the car; he explained he
initially had no reason for doing so other than the fact the
car was there. He ran a check on the license plate and
learned it was registered to a woman in Salina. The deputy
explained that he continued to follow the car because,
through his "extensive experience with drug
interdiction, specifically on I-135, [he had] often found . .
. narcotics or illegal narcotics trafficking from Sedgwick
County or the City of Wichita to Saline County or the City of
Salina." On cross-examination, he affirmed he did not
automatically assume every car traveling north through Harvey
County with a Saline County tag was involved in drug
activity. In this case he was suspicious, however, noting
that the car's travel circumstances were among the
"many indicators." The deputy acknowledged the
driver did not speed, change speed, or take evasive action
when the driver might have observed the patrol car.
Newton, the Ford Focus exited I-135, and the deputy followed.
As the Ford Focus drove through a roundabout with street
lighting, the deputy could see that the driver, later
identified as Gray, was male. The deputy testified he had
"often found in [his] experience in drug
interdiction" that male drivers of vehicles registered
to women "are involved in illegal activity or criminal
activity because they don't want to be attached or their
name to be attached to anything." The deputy became more
suspicious when Gray drove to a gas station, where he pulled
up to the pumps on what the deputy incorrectly believed to be
the side of the car without the gas cap. Gray exited the car
and went inside without pumping gas. The deputy testified
that it was at this point he first observed that Gray was
African-American. When Gray walked back to his car, he looked
around 360 degrees, got into the Ford Focus, and stayed there
for a minute before driving away.
deputy followed the car. During his testimony, he admitted he
was looking for a traffic infraction to pull the car over
and, although the driver made several turns without incident,
at a final turn the deputy observed a failure to signal. The
deputy activated his sirens and stopped the car. During
Gray's testimony, he insisted he had turned on his turn
signal. On further questioning, however, Gray admitted that
on the last turn he did so only after he reached the
intersection; he did not signal during the last 100 feet
before the turn.
testified that after he was pulled over he told the deputy he
believed he had been a victim of racial profiling. According
to Gray, the deputy said, "I'm just doing my
job." Gray initially gave the deputy false information
about his identity and later attempted to run away. The
deputy and a Newton police officer, who had responded as
backup, apprehended Gray and placed him under arrest. The
deputy then learned Gray's identity and determined he had
outstanding out-of-state warrants and a suspended
driver's license. The police officer transported Gray to
the Harvey County Detention Center and found marijuana and
cocaine on Gray.
Gray was charged, he filed the motion to suppress that is the
subject of this appeal. In the written motion, he generally
argued he had been subject to an "illegal traffic stop
and detention." The written motion did not assert the
issue now before us- i.e., whether the seizure of Gray was
unlawful because it was based on racial or other biased-based
policing. Nor did it cite to the biased-based policing
statutes, K.S.A. 2014 Supp. 22-4606 and 22-4609.
district judge, after hearing the deputy's and Gray's
testimony, denied Gray's motion to suppress. The district
judge initially stated "the only issue is whether or not
there's a traffic infraction" because Kansas courts
had sanctioned pretextual stops as long as the driver had
committed a traffic infraction. The judge noted that the
deputy testified there was no turn signal at all-a fact Gray
disputed, although his own testimony established he at least
did not signal before the turn, as the law required.
See K.S.A. 8-1548 (requiring a signal 100 feet before a
turn). The district judge ultimately found the deputy's
testimony was credible as to whether Gray used his turn
signal. As for the rest of the testimony regarding the
deputy's suspicions, the judge stated it simply did not
matter-so long as the deputy observed Gray committing a
traffic infraction, the deputy's pretext for the stop was
then indicated he wished to preserve an additional argument
for appeal, and he asked the judge to consider whether there
was "any racial profiling involved in the stop." He
referenced K.S.A. 2014 Supp. 22-4606, K.S.A. 22-4607, and
K.S.A. 2014 Supp. 22-4609, through which the Kansas
Legislature had, in his opinion, "changed the law on
pretextual stops if there's a racial profiling
involved." Gray argued that if racial profiling was
involved, the pretext was invalidated. The district judge
then found "there was nothing on the record that [he]
heard that would lead ...