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State v. Gill

Court of Appeals of Kansas

June 21, 2019

State of Kansas, Appellant,
v.
Davon M. Gill, Appellee.

         SYLLABUS

         1. Because the purpose of K.S.A. 2018 Supp. 22-4609 is designed to prohibit the use of racial or other biased-based policing, the use of this kind of policing is restricted under the following circumstances: (1) Determining the existence of probable cause to take into custody or to arrest an individual; (2) establishing a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a vehicle; or (3) determining the existence of probable cause to conduct a search of an individual or a conveyance.

         2. Under K.S.A. 2018 Supp. 22-4606(d), racial or other biased-based policing is the following: The unreasonable use of race, ethnicity, national origin, gender, or religion by a law enforcement officer in deciding to initiate an enforcement action. It is not racial or other biased-based policing when race, ethnicity, national origin, gender, or religion is used in combination with other identifying factors as part of a specific individual description to initiate an enforcement action.

         3. A defendant may establish a prima facie case of unlawful biased-based policing (1) by showing that the defendant is a member of a class listed in K.S.A. 2018 Supp. 22-4606(d) and (2) by giving reasons for arguing that race (or another listed characteristic under K.S.A. 2018 Supp. 22-4606[d]) was unreasonably used in the decision-making process for initiating the stop.

         4. Determination of whether an officer unreasonably used race or any other listed characteristic under K.S.A. 2018 Supp. 22-4606(d) in deciding to initiate an enforcement action will largely depend on credibility-a weighing of the evidence process that is already quite familiar to district judges. As with any credibility assessment, a district judge must weigh surrounding facts and circumstances along with a witness' statements.

         5. Supreme Court Rule 165 (2019 Kan. S.Ct. R. 221) imposes on the district court the primary duty to provide adequate findings of fact and conclusions of law on the record to explain the court's decision on contested matters. A party, however, must object to inadequate findings and conclusions to preserve an issue for appeal. Such objections necessarily give the district court an opportunity to correct any alleged inadequacies.

         6. When a defendant's motion to suppress evidence maintains a violation of K.S.A. 2018 Supp. 22-4606(d) and K.S.A. 2018 Supp. 22-4609, the State bears the burden to establish that neither race, ethnicity, national origin, gender, nor religion was unreasonably used by a law enforcement officer in deciding to initiate an enforcement action.

          Appeal from Reno District Court; Timothy J. Chambers, judge.

          Andrew R. Davidson, assistant district attorney, and Derek Schmidt, attorney general, for appellant.

          Kristen B. Patty, of Wichita, for appellee.

          Before Leben, P.J., Green and Powell, JJ.

          Green, J.

         Davon M. Gill was arrested by an officer of the Hutchinson Police Department for possession of marijuana with the intent to sell. Gill, who is African-American, moved to suppress the evidence recovered from his stop based on the officer's unreasonable use of race to initiate the stop. The district court agreed and granted Gill's motion to suppress the evidence. On appeal, the State argues that the evidence was insufficient to support the district court's holding that the officer unreasonably used race in deciding to initiate the enforcement action. We disagree. Accordingly, we affirm.

         Late on the afternoon of September 11, 2017, Hutchinson Police Officer James Sanders, who is white, was sent to an apartment complex to investigate a reported theft case. Sanders was not provided any other information and was not looking for any particular suspects at the time. More specifically, he was not told by dispatch that he should be on the lookout for two African-American men in a SUV. Further, he had not met previously either Gill or his passenger, Fatir Hines, and he had no previous information about them, including whether either was involved in any type of drug or theft activity. When Sanders arrived at the apartment complex, he was aware or recognized that the two men in the nearby SUV were African-American.

         Sanders' body-worn camera showed that as he was getting out of his patrol car, he shouted, "You guys call?" toward the SUV occupied by the two African-American males. Sanders received this reply: "No, sir." Taking a step towards the apartment building, he turned back towards the SUV and while walking about eight steps to the passenger door, asked, "Where you all from?" He received a reply, "Not here." When the driver, later identified as Gill, started to drive away, Sanders let Gill know that he was not free to leave and that he had to answer Sanders' questions: "Hold on. I'm talking to you . . . . Because I got called out to this area . . . . I know you didn't call me. Put the vehicle in park."

         At this point, Sanders began addressing Gill as "dude" and although Gill had not committed a traffic violation and seemingly was lawfully parked, Sanders demanded Gill's driver's license and proof of insurance "because I'm asking for it." Eventually, after about another 39 seconds and some 94 seconds after the encounter started, Sanders stated that he could smell marijuana in the SUV. Officer Long arrived five minutes later and Sanders told Long why he walked over to the SUV-"I'm out here for a theft case. I pull up in my vehicle and these two are staring at me hard and start looking back so I start walking over here."

         A search of Gill's SUV yielded 18 individually wrapped baggies of marijuana, weighing approximately 20 grams in a hidden compartment in the center console underneath the cup holders.

         Gill was charged with possession of marijuana with intent to distribute less than 25 grams within 1, 000 feet of a school, K.S.A. 2017 Supp. 21-5705(a)(4) and (d)(5), a severity level 3 nonperson drug felony. Gill moved to suppress the evidence from the stop, alleging that race-based policing was unreasonably used by Sanders in deciding to initiate an enforcement action prohibited by K.S.A. 2017 Supp. 22-4606(d) and K.S.A. 2017 Supp. 22-4609.

         After an evidentiary hearing, the district court ruled that Sanders had unreasonably used race in deciding to initiate the enforcement action and granted Gill's motion to suppress the evidence. In the district court's order granting Gill's motion, it found and ruled as follows:

"The question for the Court to determine is if race was unreasonably used in deciding to initiate enforcement action and therefore constitute a violation of 22-4609.
"Did Officer Sanders approach the Defendant's vehicle in relation to the theft call? No evidence was presented concerning the nature of the theft call. On the video, Officer Sanders indicates to the Defendant, 'I know you didn't call me.' The evidence would indicate the officer did not approach the vehicle in relation to investigation of the theft report.
"Officer Sanders indicated he could smell marijuana coming from the Defendant's vehicle. If the officer smelled marijuana at his vehicle he had no way of determining the marijuana smell was coming from the Defendant's vehicle. There was vehicle parked right next to the Officer's vehicle. The ...

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