BY THE COURT
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.
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.
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
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.
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.
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.
of the judgment of the Court of Appeals in an unpublished
opinion filed July 1, 2016.
from Sedgwick District Court; Douglas R. Roth and Stephen J.
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.
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.
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.
and Procedural Background
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.
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.
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.
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.
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.
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.
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.
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
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
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
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.
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).
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 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