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.
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.
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.
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'
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.
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.
from Reno District Court; Timothy J. Chambers, judge.
R. Davidson, assistant district attorney, and Derek Schmidt,
attorney general, for appellant.
Kristen B. Patty, of Wichita, for appellee.
Leben, P.J., Green and Powell, JJ.
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.
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
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."
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
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
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.
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 ...