State v. Bulk

STATE OF KANSAS, Appellant, v. JEANNIE R. BULK, Appellee.

No. 121,783

COURT OF APPEALS OF THE STATE OF KANSAS

April 10, 2020

NOT DESIGNATED FOR PUBLICATION

MEMORANDUM OPINION

Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed April 10, 2020. Affirmed.

Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellant.

Jeffery S. Adam, of Robinson Firm, LLC, of Manhattan, for appellee.

Before LEBEN, P.J., SCHROEDER, J., and LAHEY, S.J.

PER CURIAM: On January 29, 2019, Jeannie R. Bulk was stopped for a traffic infraction. The district court ordered suppression of the evidence discovered in her vehicle following its search, finding the officer unconstitutionally extended the stop and the officer's testimony lacked credibility. The State timely filed this interlocutory appeal, arguing the district court improperly suppressed the evidence. After review, we find the district court's decision is supported by substantial competent evidence, and we affirm.

FACTS

Undersheriff Jim Bogart of Clay County was on duty with his certified drug dog. He executed a traffic stop on the car driven by Bulk because it was being operated with a defective muffler. Bulk provided him with her license and vehicle registration. Back in the police vehicle, Bogart ran Bulk's license and registration but did not start writing her a ticket. Instead, he went back to the car and asked Bulk for consent to search the vehicle. She denied consent, and Bogart asked her to exit the vehicle while he deployed his dog to sniff the car. Shortly before the search, Officer Billy Smith of the Clay County Police Department was dispatched to the scene.

The dog alerted on the driver's side door, and Bogart searched the car. He searched the driver's seat area first, then the rear passenger compartment on the driver's side, before searching Bulk's purse and the driver's seat area a second time. About 10 minutes later, Bogart opened the vehicle's ashtray and discovered a glass smoking pipe wrapped in a paper towel. The glass pipe field-tested positive for methamphetamine. Bulk was arrested and charged with possession of methamphetamine and possession of drug paraphernalia.

Bogart was not wearing a body camera during the encounter, nor was his police vehicle equipped with a recording device. Smith, however, was wearing a body camera when he arrived just before Bogart started searching the car.

Bulk moved to suppress the evidence, arguing Bogart unlawfully extended the traffic stop without reasonable suspicion she had committed a crime other than operating a car with a defective muffler.

At the suppression hearing, Bogart testified when Bulk gave him her license and registration, he saw in plain view a clear glass tube wrapped in a paper towel sticking out of the vehicle's ashtray. Based on his training and 29 years of experience in law enforcement, Bogart said the item appeared to be a glass smoking pipe used as drug paraphernalia. Initially, Bogart testified he said nothing to Bulk about the item. But on cross-examination, defense counsel confronted Bogart with a prior inconsistent statementfrom his report in which he claimed to have told Bulk he "believed that there was drug paraphernalia in the car." Bogart readopted the report statement and said, "If it's on the report, I did tell her that." Bogart testified he waited to tell Smith about the drug paraphernalia he saw in plain view until after he collected it.

Defense counsel admitted into evidence footage taken from Smith's body camera and played the video in court. When the footage starts, Bogart is walking towards the vehicle. Bogart has a discussion with Bulk, during which he can be heard asking, "Do you have anything illegal in the vehicle I should be aware of?" Bulk's response is inaudible. Bogart then asks Bulk for consent to search the vehicle, but their conversation after his request is muddled by background noise. Bogart does not tell Smith in the video about his suspicion the car contains drug paraphernalia.

Bogart said he did not immediately seize the drug paraphernalia because the evidence was under his control and was not going anywhere. He waited to seize the pipe because he was trained to search vehicles in a grid pattern, and he would stick to that method even if he had already seen something illegal.

Bogart admitted his request for consent and the use of the dog sniff were unnecessary because he had previously seen what appeared to be drug paraphernalia in plain view. He claimed the purpose of these additional measures was to confirm his suspicion there was drug paraphernalia in the vehicle.

The district court granted Bulk's motion, finding Bogart's testimony lacked credibility for the district court to believe Bogart saw the glass pipe in plain view when he first approached the car. The district judge remarked, "Obviously, if he'd seen drug paraphernalia, he had reasonable suspicion." But the district court found Bogart's actions did not align with his testimony on the matter, stating it had seen "so many videos of traffic stops over the years and . . . usually officers explain to the drivers why they'rebeing stopped, why they're being asked to get out. If they observe things, they usually inquire about them." The district court found it very unusual Bogart did not tell Bulk or Smith he had seen the smoking pipe in plain view and he "did not tell anyone at all until . . . after he placed the defendant under arrest after 13 minutes of searching . . . that there was drug paraphernalia." However, our review of the tape reflects the search lasted about 10 minutes, and we make this disclosure for purposes of clarity in the record. The district court went on to question why Bogart did not go "straight to the item he observed . . . was drug paraphernalia which would be the logical thing a person would expect somebody to do," or why Bogart asked for consent when he claimed to have plainly seen drug paraphernalia.

Finally, the district court adopted defense counsel's reasoning at the suppression hearing that (1) Bogart did not see the paraphernalia in plain view until after he started searching the car, and (2) Bulk's detention was therefore extended without the requisite reasonable suspicion.

After ruling on the motion, the district court gave both parties the opportunity to ask questions. Neither party had questions.

ANALYSIS

When a defendant moves to suppress evidence, the State has the burden to prove its search and seizure was lawful. In reviewing the granting or denial of a motion to suppress evidence, we first determine—without reweighing evidence or assessing witness credibility—whether the district court's factual findings are supported by substantial competent evidence. State v. Sanders, 310 Kan. 279, 285, 445 P.3d 1144 (2019). "'Substantial competent evidence is "such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion."'" State v. Doelz, 309 Kan. 133, 138, 432 P.3d 669 (2019). Second, we review the district court's ultimate legalconclusion de novo, without required deference to the lower court's decision. Sanders, 310 Kan. at 285.

Only the facts are at issue here. Accordingly, our review is limited to whether the district court's factual findings are supported by substantial competent evidence. The State argues the district court's findings indicating it did not believe Bogart are unsupported by the evidence.

The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures. State v. Williams, 297 Kan. 370, 376, 300 P.3d 1072 (2013). "A routine traffic stop is a seizure under the Fourth Amendment, so it is subject to the constitutional requirement of reasonableness." State v. Arrizabalaga, 57 Kan. App. 2d 79, 86, 447 P.3d 391 (2019), rev. granted February 25, 2020. Depending on the circumstances, a search or seizure is generally "unreasonable" when it is accomplished without a valid warrant or without a recognized exception to the warrant requirement. Sanders, 310 Kan. at 285.

One exception to the warrant requirement is an investigatory detention, which allows an officer to stop and briefly detain an individual without a warrant as long as the officer has facts supporting a reasonable and articulable suspicion the individual is committing, has committed, or is about to commit a crime. 310 Kan. at 286; see Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

Courts treat traffic stops like investigatory detentions. State v. Jimenez, 308 Kan. 315, 323, ...