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State v. Lowery

Supreme Court of Kansas

June 22, 2018

State of Kansas, Appellant,
v.
Derrick Lowery, Appellee.

         SYLLABUS BY THE COURT

         1. A routine traffic stop is a seizure under the Fourth Amendment to the United States Constitution.

         2. Traffic stops cannot be measurably extended beyond the time necessary to process the infraction that prompted the stop unless there is a reasonable suspicion of or probable cause to believe there is other criminal activity, or consent.

         3. While a driver is being detained for a routine traffic stop, a law enforcement officer may not conduct questioning unrelated to the officer's mission if it measurably extends the stop-absent probable cause or the reasonable suspicion ordinarily demanded to justify detaining an individual.

         4. Reasonable suspicion is a lower standard than probable cause. What is reasonable depends on the totality of the circumstances in the view of a trained law enforcement officer. In determining whether reasonable suspicion exists, the court must judge the officer's actions in light of common sense and ordinary human experience.

         5. This standard recognizes that events and conditions supporting reasonable suspicion are fluid rather than fixed and the existence of reasonable suspicion may change once new facts are observed by or become known to law enforcement.

          Review of the judgment of the Court of Appeals in an unpublished opinion filed May 12, 2017.

          Appeal from Geary District Court; Maritza Segarra, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

          Tony R. Cruz, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellant.

          Dakota T. Loomis, of Law Office of Dakota Loomis, LLC, of Lawrence, argued the cause and was on the briefs for appellee.

          OPINION

          BILES, J.

         This is the State's interlocutory appeal from a district court order suppressing evidence discovered in a vehicle search following a traffic stop. The court ruled the stop was unconstitutionally extended. A Court of Appeals panel affirmed. State v. Lowery, No. 116, 637, 2017 WL 2021311 (Kan. App. 2017) (unpublished opinion). We agree with the lower courts. The officer improperly prolonged the traffic stop, so the resulting drug-related evidence must be suppressed. We apply the law as set out in State v. Jimenez, (No. 116, 250, this day decided), and State v. Schooler, (No. 116, 636, this day decided).

         Factual and Procedural Background

         The facts are undisputed and are supported by audio/video recordings. In August 2015, Junction City Police Officer Nicholas Blake performed a traffic stop on an automobile for following too closely. The vehicle had two occupants: Derrick Lowery, the driver; and his friend, Matthew Markey, the passenger. Blake explained the reason for the stop and requested Lowery's driver's license and vehicle registration. He asked who the vehicle belonged to, and Lowery responded a friend who was not present. Blake asked Lowery to accompany him to his patrol car so he could check the driver's license and vehicle information and fill out a warning citation.

         Once in the patrol vehicle, Blake started filling out the citation. While doing so, he asked where Lowery was from and where the two were going. Lowery said he was going to Fraser, Colorado, and coming from Knoxville, Tennessee. He explained he was originally from Knoxville and lived in Colorado for about eight years. He was in Knoxville for the summer to visit his family. He was heading back to Colorado for the upcoming ski season to work with the ski patrol.

         Lowery said it was cheaper to fly to Tennessee at the end of the last ski season but more expensive to fly back so he borrowed his friend's car. He said his friend would fly to Colorado during the ski season to retrieve it. According to Lowery, Markey was his high school friend and was going to spend some time with him in Colorado and maybe get a job at a ski resort. Six minutes and 11 seconds into the vehicle stop, Blake called his dispatch with the license and registration information.

         Blake then went back to the automobile and asked Markey generally about the pair's travel plans. Markey said they were headed to Colorado to stay at Lowery's home for a few days before returning to Knoxville. Markey said he had a job in Knoxville and Lowery had unexpectedly called him and asked if he wanted to help drive to Colorado.

         Blake returned to his police car. Dispatch radioed back that Lowery had no outstanding warrants. Blake gave Lowery a citation, returned his documents, and told him he was free to go. The stop had taken about 12 minutes to this point. As Lowery exited the patrol vehicle but before he shut the door, Blake asked if Lowery would answer additional questions. Lowery agreed. Blake said he just wanted to make sure Lowery did not "have like nuclear weapons . . . a million pounds of marijuana . . . things of that nature" and asked if he had anything illegal in his car. Lowery answered no.

         Blake asked for consent to search the vehicle. Lowery refused. The officer told Lowery to sit down in his patrol car. Once seated, he asked whether Lowery would have a problem if a drug dog came out. Lowery asked, "Do I have the option?"; "Do I have to wait or can I leave?"; and "What's my option?" Blake answered, "[I]t's like a step-by-step process that I have to work on and see what your answers are gonna be." When Lowery asked about probable cause for a search, Blake said he had suspicion and did not need probable cause. Blake detained Lowery.

         Blake contacted the Riley County Police Department to see if there were any nearby canine units but was unable to get a response. He had a backup officer stay with Lowery and Markey while he went to his home to retrieve his drug dog. Blake returned with the dog to examine the car's exterior. The dog alerted near the trunk. About 35 minutes passed from the initial stop to when Blake ran the dog around the car. Officers discovered drug-related evidence. Lowery was charged with criminal transportation of drug proceeds, criminal transfer of drug proceeds, and possession of marijuana. See K.S.A. 2014 Supp. 21-5716(b); K.S.A. 2014 Supp. 21-5716(c); K.S.A. 2014 Supp. 21-5706(b)(3) and/or (b)(7).

         Lowery moved to suppress the evidence, arguing: (1) there was no reasonable suspicion for the initial traffic stop; (2) Blake unlawfully detained Lowery after he told him he was free to leave by immediately asking Lowery if he could ask some further questions; (3) although Lowery agreed to answer Blake's additional inquiries, that encounter was not consensual since he would not feel free to leave; and (4) even if it were deemed a consensual encounter, Blake seized ...


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