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State v. Gray

Supreme Court of Kansas

October 27, 2017

State of Kansas, Appellee,
v.
Marcus Gray, Appellant.

         SYLLABUS BY THE COURT

         1. 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 et seq.

         2. A 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.

         3. 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 stop.

         4. 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.

         Review 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.

          Jason 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.

          OPINION

          LUCKERT, J.

         K.S.A. 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 obtained."

         We have 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.

         We 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.

         Facts and Procedural History

         This appeal focuses on Gray's motion to suppress and the evidence presented at the hearing on that motion.

         The 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.

         At 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.

         The 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.

         Gray 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.

         After 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.

         The 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 irrelevant.

         Gray 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 ...


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