BY THE COURT
K.S.A. 2012 Supp. 21-6302(a)(4) provides a person carrying a
concealed weapon (i.e., pistol, revolver, or other firearm)
on the person's land or in the person's abode cannot
be charged with criminal carrying of a weapon.
2. As a
general rule, criminal statutes are strictly construed in
favor of the accused. Additionally, the strict construction
rule is constrained by the rule the interpretation of a
statute must be reasonable and sensible to effect the
legislative design and intent of the law.
common areas (i.e., the lobby, hallway, and/or other common
areas) of an apartment complex are generally not considered
part of the abode or curtilage because the tenant does not
have exclusive control over access to the common area of the
interpreting a statute, words not defined in the statute must
be construed according to their common and approved usage.
Abode is defined as a home; a place of residence. Land is
defined as an immovable and indestructible three-dimensional
area consisting of a portion of the Earth's surface, the
space above and below the surface, and everything growing on
or permanently affixed to it; an estate or interest in real
ingress-and-egress easement is defined as the right to use
land to enter and leave another's property. Under the
facts of this case, it would be the right to use the common
areas of the apartment building (i.e., the hallway, stairway,
and lobby areas) to come and go from the tenants'
reviewing a district court's decision on a motion to
suppress, the appellate court applies a bifurcated standard.
The appellate court reviews the district court's factual
findings to determine whether they are supported by
substantial competent evidence. The ultimate legal conclusion
is reviewed using a de novo standard. In reviewing the
factual findings, the appellate court does not reweigh the
evidence or assess the credibility of witnesses.
law enforcement officer may stop any person in a public place
based upon specific and articulable facts raising a
reasonable suspicion that such person has committed or is
about to commit a crime. Terry v. Ohio, 392 U.S. 1,
21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). K.S.A 22-2402(1),
the Kansas stop-and-frisk statute, is a codification of the
Fourth Amendment search and seizure principles expressed in
ultimate question in determining whether property is embraced
by a premises' curtilage is whether the area in question
is so intimately tied to the home itself that it should be
placed under the home's umbrella of Fourth Amendment
protection. Four principle factors guide whether the area is
under the umbrella of the curtilage: (1) how near the area is
to the home; (2) whether any enclosures surrounding the home
embrace the area in question; (3) how the area is used; and
(4) whether the resident has acted to protect the area from
observation by people passing by.
lobby area of an apartment building is generally not
sufficiently private to qualify as curtilage, therefore, it
was sufficiently public for a Terry stop to occur.
court must look at each step of the Terry stop. Each
element, the stop and the frisk, must be analyzed separately;
the reasonableness of each must be independently determined.
Testimony 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
from Sedgwick District Court; Christopher M. Magana, judge.
Richard Ney, of Ney & Adams, of Wichita, and Ian M.
Clark, of Wichita, for appellant.
J. Gillett, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, for
Standridge, P.J., Buser and Schroeder, JJ.
remand from the Kansas Supreme Court, we address the two
issues John W. Bannon raised in the appeal of his jury
conviction for criminal carrying of a weapon under K.S.A.
2012 Supp. 21-6302(a)(4). The record reflects Bannon was
searched without a warrant in the lobby of Wheatshocker
claims he was in lawful possession of his firearm in the
front lobby to his apartment building and the lobby qualifies
as part of his abode or curtilage. Bannon's argument the
lobby qualifies as part of his abode or curtilage to his
apartment is not supported by the law and is unpersuasive.
also asserts the district court erred in not granting his
motion to suppress the evidence found as a result of an
improper pat-down search. Bannon claims that without a
warrant, the officers lacked reasonable suspicion to search
him pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). Bannon's perception of the
restriction placed on officers pursuant to Terry is
misplaced. Here, based on a tip from a known informant, the
officers had reasonable suspicion to believe Bannon was armed
with a weapon. Therefore, officers had reasonable suspicion
Bannon was presently armed and dangerous, justifying a
pat-down search for officer safety or for the safety of the
individuals in the apartment lobby. We affirm.
parents of a Wichita State University (WSU) student went to
the WSU Police Department to report an incident their son
related to them that occurred two weeks prior at his campus
Sergeant Bryson Potter and Officer Phillip Shelite of the WSU
Police Department spoke with the parents who informed them
their son, Johnathon Wasserstein, had seen a fellow resident
in Wheatshocker carrying a gun. Sergeant Potter had the
parents retrieve their son and verified Wasserstein was a WSU
student living in Wheatshocker.
told the officers "[a] friend or an acquaintance that
told him that he works for Homeland Security; he always has
guns on him; he interrogates people. He said that he had his
conceal and carry, and he had guns in his apartment, as
well." The individual's first name was John and he
lived in one of two possible Wheatshocker units-No. 414 or
No. 514. Wasserstein provided a physical description of John
for the officers and told the officers John took Xanax and
Morphine. Wasserstein was explicit that he regularly hung out
with John, and John always carried a gun. Officer Shelite
confirmed a John Bannon lived in apartment No. 414 at
Sergeant Potter and Officer Shelite arrived at Wheatshocker,
they were advised by dispatch a student working at the lobby
desk confirmed Bannon was currently sitting in the
Wheatshocker front lobby. "The front lobby is right
inside [Wheatshocker]. You walk into the apartments and you
have a-a desk where a worker always sits, and there's a
front lobby. It's a common area with seating and couches
and everybody uses it; students hang out there."
Sergeant Potter and Officer Shelite observed a number of
students in the lobby.
officers saw a man matching Bannon's physical description
sitting in a chair reading in the lobby. The officers
approached Bannon. Sergeant Potter asked the individual if
his name was John, and he said, "Yes." Sergeant
Potter then asked Bannon if he had any weapons on him, and he
said, "No." Officer Shelite grasped Bannon by the
arm and had him stand up for a quick pat-down. Officer
Shelite located a black handgun, loaded with a 15-round clip
and a round in the chamber, on Bannon's right hip, inside
his waistband, with a shirt over it to conceal it. The
officers secured the loaded weapon and placed ...