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State v. Bannon

Court of Appeals of Kansas

January 12, 2018

State of Kansas, Appellee,
v.
John W. Bannon, Appellant.

         SYLLABUS BY THE COURT

         1. 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.

         3. The 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 apartment building.

         4. When interpreting a statute, words not defined in the statute must be construed according to their common and approved usage.

         5. 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 property.

         6. An 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' apartments.

         7. When 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.

         8. A 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 Terry.

         9. The 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.

         10. The 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.

         11. The 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.

         12. 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 Terry.

         Appeal from Sedgwick District Court; Christopher M. Magana, judge.

          Richard Ney, of Ney & Adams, of Wichita, and Ian M. Clark, of Wichita, for appellant.

          Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Standridge, P.J., Buser and Schroeder, JJ.

          SCHROEDER, J.

         On 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 Apartments (Wheatshocker).

         Bannon 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.

         Bannon 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.

         Facts

         Concerned 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 residence, Wheatshocker.

         Both 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.

         Wasserstein 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 Wheatshocker.

         When 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.

         The 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 ...


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