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State v. Parker

Supreme Court of Kansas

December 7, 2018

State of Kansas, Appellee,
David E. Parker Jr., Appellant.


         1. A police officer's warrantless search is per se unreasonable under the Fourth Amendment to the United States Constitution unless the State can fit the search within a recognized exception to the warrant requirement. One such exception is when the search occurs with probable cause plus exigent circumstances. The State bears the burden to establish a challenged search was lawful.

         2. K.S.A. 2017 Supp. 22-2901(1) generally provides that when an arrest is made, with or without a warrant, the arrestee shall be taken without unnecessary delay before a magistrate.

         3. Under K.S.A. 2017 Supp. 22-2901(1), the requirement to take an arrestee before a judge or magistrate without unnecessary delay safeguards the arrestee's rights by making certain a judicial officer advises the arrestee of constitutional rights without hampering effective and intelligent law enforcement.

         4. A property seizure under the Fourth Amendment to the United States Constitution arises when there is some meaningful interference by law enforcement with an individual's possessory interests in that property.

         5. K.S.A. 2017 Supp. 8-1568 prohibits a refusal to stop for a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. If the officer giving such signal is in an official police vehicle, that vehicle must be appropriately marked showing it to be an official police vehicle.

         6. K.S.A. 2017 Supp. 8-1568(e)(2) defines an appropriately marked official police vehicle to include one equipped with functional emergency lights or siren or both.

          Review of the judgment of the Court of Appeals in an unpublished opinion filed July 1, 2016.

          Appeal from Sedgwick District Court; Douglas R. Roth and Stephen J. Ternes, judges.

          Christina M. Kerls, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit Vogelsberg, of the same office, was with her on the briefs for appellant.

          Julie A. Koon, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.


          BILES, J.

         David E. Parker Jr. appeals his convictions of possession of cocaine, fleeing or attempting to elude a police officer, driving with a suspended license, failure to signal while turning, and driving with no headlights. The Court of Appeals affirmed in part, reversed in part, and remanded on Parker's jury selection challenge based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). State v. Parker, No. 112, 959, 2016 WL 3570512, at *11 (Kan. App. 2016) (unpublished opinion). Parker seeks our review on three issues the panel rejected: (1) whether drug evidence found in his vehicle should be suppressed; (2) whether sufficient evidence existed to support the crime of fleeing or eluding; and (3) whether Parker's prior convictions could be used without a jury finding to increase his sentence. We affirm the Court of Appeals' judgment, although our rationale differs from the lower courts on the evidence suppression question.

         Factual and Procedural Background

         The material facts are undisputed. Officer James Summerer observed a vehicle traveling without its headlights on after dark. The officer was driving an unmarked Crown Victoria. He activated its red and blue emergency lights, which projected from the front and the back, and its "wig wag" lights. The vehicle without its headlights on did not pull over. Instead, it continued on, made several turns on city streets, and briefly stopped to let out a female passenger.

         While shining his spotlight on the vehicle during the pursuit, Summerer saw the driver, who was "leaned over and diggin[g] around in the area off to his right, which would be the console area of the car." The vehicle finally stopped in a grocery store parking lot. The driver parked the car in the public lot, got out, and locked it.

         Summerer arrested the driver and found $965 in cash and a Kansas ID card identifying him as Parker, who acknowledged his driver's license was revoked. Parker quickly told the officer a warrant would be needed to search the automobile. After placing Parker in a police car, Summerer walked around Parker's car but did not see anything illegal in plain view. The officer called for a K-9 unit. After about an hour, the dog arrived, sniffed around the vehicle's exterior, and alerted on the passenger side. The officers unlocked the vehicle to let the dog inside. It alerted again at the center console. Officers searched the area and found plastic-wrapped cocaine folded inside a knit hat and a plastic bag containing cocaine inside a cup holder.

         The precise time between the stop and the dog alert was not established below. Summerer testified he took Parker into custody about 7:20 p.m., and the drug evidence was field-tested about 8:40 p.m. Based on this, the district court found "an hour or so" elapsed between the arrest and the dog's alert.

         During booking, Summerer told Parker he would be charged with possession of cocaine with intent to distribute in addition to the various traffic charges. Parker told the officer "if he was a drug dealer he felt that the money would be in smaller denominations than what he had, and . . . he had just bought some." He conceded "he was a cocaine user" and had "purchased the cocaine in the car" for personal use.

         The State charged Parker with possession of cocaine under K.S.A. 2012 Supp. 21-5706(a), (c)(1), fleeing or attempting to elude an officer under K.S.A. 2012 Supp. 8-1568(a), (c)(1), driving with a suspended license under K.S.A. 2012 Supp. 8-262(a)(1), failing to signal when turning under K.S.A. 8-1548, and failing to display lighted headlamps under K.S.A. 8-1703. A jury convicted Parker as charged. The court sentenced him to 37 months in prison. He timely filed a notice of appeal.

         As mentioned, the panel rejected three of Parker's challenges, but agreed the district court erred under Batson when handling the State's peremptory challenge to the only African-American prospective juror. The panel remanded the case for further proceedings about the State's proffered race-neutral explanation for the challenge. Parker, 2016 WL 3570512, at *10.

         Parker petitioned this court for review of the remaining three issues, which we granted. Jurisdiction is proper. K.S.A. 20-3018(b) (petitions for review of Court of Appeals decision); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

         The State did not seek review of the panel's adverse Batson decision. See Supreme Court Rule 8.03(c)(3) (2018 Kan. S.Ct. R. 53); see also State v. McBride, 307 Kan. 60, Syl. ¶ 1, 405 P.3d 1196 (2017) ("If the State does not cross-petition for review of a Court of Appeals holding . . ., the Supreme Court will not consider whether that holding was erroneous when reviewing the appeal.").

         Suppression of Evidence

         A police officer's warrantless search "is per se unreasonable under the Fourth Amendment unless the State can fit the search within one of the recognized exceptions to the warrant requirement." State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012). One such exception is when the search occurs with probable cause plus exigent circumstances. 294 Kan. at 55. In Parker's case, the State relies on that exception. The State bears the burden to establish a challenged search or seizure was lawful. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).

         The State argues the drug dog's alert provided probable cause to search Parker's vehicle without a warrant, even though Parker does not dispute this now on appeal. His arguments focus on what happened before the dog's arrival-particularly the time it took waiting for the dog.

         Standard of review

         Appellate review for an evidence suppression issue is bifurcated. When reviewing a motion to suppress evidence, the factual underpinnings of the district court's decision are reviewed for substantial competent evidence and the ultimate legal conclusion is reviewed de novo. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). But if the material facts are undisputed, as they are in Parker's appeal, the suppression issue simply presents a question of law subject to de novo review. State v. Cleverly, 305 Kan. 598, 604, 385 P.3d 512 (2016).

         Additional background

         At the district court, Parker argued the wait for a K-9 unit made the stop's duration unreasonable. He claimed: "The scope of the stop was exceeded in duration, as relating to the reason for the stop." He noted he was not free to leave. Parker also claimed his incriminating statements were made without his "full, knowing, and intelligent waiver" under Miranda because of his "physical, mental, educational and emotional state."

         The State argued the vehicle search and evidence seizure were lawful because (1) Summerer had a reasonable suspicion after seeing Parker lean towards the console area; (2) "a dog sniff of an exterior of a car parked in a public place is not a search" under State v. Skelton, 247 Kan. 34, 46, 795 P.2d 349 (1990); (3) the dog's alert provided probable cause and "the inherent movability of a vehicle" allowed a warrantless search under the automobile exception; and (4) contrary to Parker's argument that he was detained for a routine traffic stop, he was in fact arrested, so his claim that the stop's duration was unreasonable was irrelevant. In response, Parker merely noted his leaning toward the console area did not ...

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