BY THE COURT
routine traffic stop is a seizure under the Fourth Amendment
to the United States Constitution.
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.
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
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.
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.
of the judgment of the Court of Appeals in an unpublished
opinion filed May 12, 2017.
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.
R. Cruz, assistant county attorney, argued the cause, and
Derek Schmidt, attorney general, was with him on the briefs
T. Loomis, of Law Office of Dakota Loomis, LLC, of Lawrence,
argued the cause and was on the briefs for appellee.
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 App. 2017) (unpublished opinion).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).
and Procedural Background
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.
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.
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
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.
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.
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
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).
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