State v. Bannon ( 2017 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 112,212
STATE OF KANSAS,
Appellee,
v.
JOHN W. BANNON,
Appellant.
SYLLABUS BY THE COURT
Testimony about a law enforcement officer's actual, subjective belief about
whether a person stopped is armed and presently dangerous, if any, may be one factor to
consider when applying the objective reasonableness test used for evaluating the
constitutionality of a frisk under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d
889 (1968).
Review of the judgment of the Court of Appeals in an unpublished opinion filed December 11,
2015. Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed July 28,
2017. Judgment of the Court of Appeals reversing and remanding the district court is reversed, and the
case is remanded to the Court of Appeals for reconsideration.
Richard Ney, of Ney & Adams, of Wichita, argued the cause, and Ian M. Clark, of Wichita, was
with him on the briefs for appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
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BEIER, J.: Defendant John W. Bannon appeals his conviction for criminal carrying
of a firearm in the lobby of the Wheatshocker Apartments on the campus of Wichita State
University (WSU).
The district court judge rejected Bannon's motion to suppress the gun found on
him during a police patdown. The Court of Appeals reversed. We granted the State's
petition for review. We now reverse the Court of Appeals and remand the case to the
panel for reconsideration under the correct legal standard.
FACTUAL AND PROCEDURAL BACKGROUND
Sergeant Bryson Potter of the WSU Police Department received a complaint that a
student at the Wheatshocker Apartments had a handgun. According to the complaint, the
person was named "John" and was a "[w]hite male, about 5'10", skinny build, [and had]
long brown hair" and lived in either Room 414 or Room 514. After receiving the
complaint, Potter and Officer Phillip Shelite cleared a burglary alarm in another building
on campus and traveled to Wheatshocker. While they drove, dispatch determined and
reported to the officers that a person by the name of John Bannon lived in Room 414.
Dispatch also contacted the front desk of Wheatshocker. The resident assistant on duty
told dispatch that "they thought [Bannon] was in the front lobby at the time."
When the officers arrived at the building, they used their WSU identification cards
to unlock the front doors. Once inside, Potter saw a man sitting in a chair who matched
the description he had been given. The officers approached, and Potter asked if the man
was John. The man, Bannon, said, "Yes." Potter asked Bannon if he had any weapons on
him, and Bannon said, "No." At that point, Shelite "helped [Bannon] get up," had Bannon
put his hands on his head, and patted him down. Shelite found a gun in Bannon's
waistband.
2
Bannon was charged with criminal carrying of a firearm under K.S.A. 2012 Supp.
21-6302(a)(4), which prohibited knowingly carrying a firearm concealed on his person,
when not on his land, in his abode, or in his fixed place of business.
Before trial, Bannon filed a motion to dismiss, arguing that he could not be
convicted of the charged crime because he had carried the gun on his land or in his abode.
After hearing arguments from both sides, District Judge John J. Kisner, Jr., denied the
motion.
Bannon also filed a motion to suppress the gun, arguing that "[s]ince the common
area of the apartment building, from which the general public was excluded by a locked
door, was contained in the curtilage of the Defendant's apartment, the warrantless search
of Defendant, in the absence of any exigent circumstances, was presumptively
unreasonable." He also argued that the stop-and-frisk exception to the Fourth
Amendment's warrant requirement under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.
Ed. 2d 889 (1968), did not apply "because the Defendant was not in a public place at the
time he was stopped and searched. Further, even if it did apply, the officers lacked a
reasonable, articulable suspicion that the Defendant was involved in criminal activity at
the time they seized and searched him." Finally, Bannon asserted, because "law
enforcement officers did not have probable cause to believe the Defendant was
committing a crime at the time he was seized and searched, his warrantless arrest cannot
be upheld."
District Judge Christopher Magana held an evidentiary hearing on the motion. At
the hearing, Jennifer Williams, a dispatcher for the WSU Police Department, and Officers
Potter and Shelite testified.
3
Williams said she was on duty the evening Bannon was arrested. The parents of
WSU student Johnathon Wasserstein came into the department and told her that "they
wanted to speak with an officer regarding an incident that was reported to them that had
occurred two weeks prior." As a result, Williams called Potter, the senior officer on duty,
to the station.
While waiting for Potter to arrive, Williams overheard the Wassersteins "talking
amongst themselves, saying [that the person they were complaining about] had reported
he worked for Homeland Security; that their son had seen him with a .40 caliber-type
Glock weapon; and that many comments had been made to their son that there was M16s
in the trunk of a vehicle." At some point, the Wassersteins also gave Williams a
description of the person in question: "white male, with a light brown colored leather
type jacket, . . . sitting in a chair in the lobby . . . of Wheatshocker Apartments." The
Wassersteins told Williams that their son had told them that it was "an everyday
occurrence that this individual carries a weapon on him."
When Potter arrived at the station, he spoke to the Wassersteins. Potter testified
that the father told him his son had said "someone at Wheatshocker worked for
Homeland Security and carried guns all the time." Potter asked where the son was and if
he could speak to him. The father said that they could go get their son and bring him back
to the station, which the couple did.
After Johnathon arrived, Potter asked him "what was going on." Wasserstein told
Potter
"a friend of his or someone he hung out with named John told him that he worked for
Homeland Security. He told him he did missions. He told me that he'd seen his gun—he
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had two guns in a safe in his closet in his room. He said that he always had a gun on
him[] as well, in his waistband."
Potter asked Johnathon when he had seen the guns in the safe. Potter testified that, based
on the response, "it didn't seem to me that it was that day that he'd seen them in the safe. I
asked him when did he have a gun on him, and he said he always has a gun on him." In
addition to the guns in the safe, Johnathon told Potter that John had rifles in his car and
that "there was a lot of ammunition" in the safe. When Potter asked Wasserstein whether
John had a concealed carry license, Wasserstein told him that John had told him he did.
According to Potter, at the time of the incident, carrying a concealed handgun in
Wheatshocker Apartments was prohibited "both by law and by . . . university policy,"
even with a concealed carry license. Johnathon also told Potter that John used Xanax and
morphine. Johnathon described John as "about [5'10"], skinny buil[d], long brown hair"
and said he thought John lived in either Room 414 or Room 514 of Wheatshocker.
During the hearing, Potter was asked about his observations of Johnathon. Potter
said he observed nothing to indicate that Wasserstein was under the influence of drugs or
alcohol.
After dealing with the burglary alarm in another building, which took about 5
minutes, Potter headed to Wheatshocker. During cross-examination at the suppression
hearing, Potter said he was "investigating several possible crimes[:] impersonating a . . .
law enforcement officer, the carry of the gun illegally, and then the two prescription
drugs that Mr. Wasserstein mentioned are often abused, so that was on my mind as well."
At Wheatshocker, Potter testified, he tried to speak to the front-desk worker, but
she could not hear him. At about the same time, Potter noticed a person sitting in the
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lobby who matched the description he had been given. He and Shelite approached the
person.
"We . . . asked him if his name was John. He said yes. Asked him if he had a
weapon on him. He said no. Officer Shelite insisted on him standing up and putting his
hands on his head and gave him a quick exterior patdown.
....
"[H]e started patting him down on the outside of his shirt around the waistline
and almost immediately pulled a handgun off of Mr. Bannon."
Potter admitted on cross-examination that he had not checked to see if Bannon had
a concealed carry permit, although he could have. He reiterated his belief that, because
Wheatshocker was a posted no-guns area, carrying a gun was illegal regardless of a
permit. Potter also was asked about the last time Johnathon had seen Bannon with the
gun; Potter did not know. Johnathon just said "[Bannon] always has a gun on him."
Potter confirmed that he did not have a warrant to go into Wheatshocker; that
entrances are locked, preventing access by the general public; and that residents and
authorized WSU employees use their WSU IDs as electronic passkeys to get into the
building. Near the lobby, where Bannon was found, there are mailboxes for the residents.
The building also includes other communal areas, such as laundry rooms. Bannon's room
was on the fourth floor, and there was no direct connection between his room and the
lobby.
The State's final witness at the suppression hearing was Shelite. He arrived at the
station while the Wassersteins were bringing their son in. While Potter questioned
Johnathon, Shelite "just observed and listened."
According to Shelite, when he and Potter reached Wheatshocker,
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"[a]s we were walking in, Officer Potter gave a description of Mr. Bannon. And
when we got into the front lobby, we noticed that Mr. Bannon was sitting down, meeting
that description. And we walked over, and Officer Potter asked him if his name was John,
to which he replied yes.
....
"We asked John to stand up, and Officer Potter asked him if he had any weapons
on him. He replied, [']No, what's going on.['] I asked him to place his hands on the back
of his head. And I held onto his hands, both of his hands, with my left hand and told him
that I was going to be just checking his waistband, the exterior of his clothing, with my
hand.
....
"I patted the exterior part of this clothing down. He had his shirt untucked, and I
just patted around, starting from the front of the waistband and proceed around to the rear
of—towards his back.
....
"Behind his right shoulder, in the waistband, I felt a hard object which I was able
to determine was [consistent] with a handgun."
Upon feeling the gun, Shelite "told Mr. Bannon, Do not make any sudden movements,
and squeezed a little tighter to keep control of his hands, and lifted up his shirt and
removed the, what ended up being a Sig Sauer P229."
At the conclusion of evidence, Judge Magana heard arguments and then
announced and explained his ruling from the bench. He began with the subject of
Johnathon's reliability. Despite some reservations, Judge Magana thought the information
about Bannon carrying a gun was reliable. Although officers could have conducted a
more thorough interview of Johnathon, it was not necessary in this case because the
officers needed only reasonable suspicion rather than probable cause. Judge Magana then
turned to determining whether the lobby where Bannon was found should be considered a
public area or curtilage of his apartment. He ultimately concluded that Bannon did not
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have a property right or an expectation of privacy in the lobby of Wheatshocker. Finally,
the patdown was within the scope of Terry because the officers had reasonable suspicion
that Bannon was carrying a gun, and they were entitled to search him to ensure officer
safety. Judge Magana therefore denied suppression.
At trial, Potter and Shelite testified, explaining how they had found Bannon and
what they had found on him. Their testimony was substantially similar to their testimony
at the suppression hearing, and the jury found Bannon guilty.
Bannon advanced two arguments on appeal to the Court of Appeals: (1) Judge
Magana erred in denying his motion to suppress; and (2) Judge Kisner erred in denying
his motion to dismiss because Bannon could not be convicted for possessing a concealed
gun in his abode or within its curtilage. The panel reversed, holding that the motion to
suppress should have been granted. State v. Bannon, No. 112,212, 2015 WL 8588451, at
*1 (Kan. App. 2015). It assumed without deciding that "the lobby of Wheatshocker was a
public place and the officers had a reasonable suspicion Bannon was violating the law to
satisfy the first prong of a Terry stop." 2015 WL 8588451, at *3. Turning to the second
prong of Terry, that is, in the panel's words, whether the patdown was done because the
officers "were concerned for their safety or the safety of others," the panel concluded that
there was no evidence the officers were actually, subjectively concerned for their safety
or the safety of others. 2015 WL 8588451, at *3-4.
"At the suppression hearing, the officers never testified they were concerned for
their safety or the safety of others before proceeding with the warrantless pat-down
search of Bannon. Clearly, the initial contact was reasonable as they approached Bannon.
However, once this plays out, the record reflects Bannon was sitting in the lobby reading
a book. The State clearly failed to present evidence of the second prong of a Terry stop—
that the officers were reasonably concerned for their safety or for the safety of others to
justify the move to a warrantless pat-down search. The right to proceed with a
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warrantless search under a Terry stop is a two-step dance. The evidence is lacking on the
second step—concern for officer or public safety—and the motion to suppress should
have been granted." 2015 WL 8588451, at *4.
Because of its holding on the motion to suppress, the panel declined to address
Bannon's second issue regarding the motion to dismiss. 2015 WL 8588451, at *4.
DISCUSSION
Under Terry, law enforcement officers may stop and frisk a person in a public
place if the officers reasonably suspect (1) criminal activity may be afoot and (2) the
person being investigated is armed and presently dangerous. Terry, 392 U.S. at 30.
The general parameters of a Terry stop have also been codified in Kansas in
K.S.A. 22-2402. State v. Johnson, 293 Kan. 959, 965, 270 P.3d 1135 (2012). It provides:
"(1) Without making an arrest, a law enforcement officer may stop any person in
a public place whom such officer reasonably suspects is committing, has committed or is
about to commit a crime and may demand of the name, address of such suspect and an
explanation of such suspect's actions.
"(2) When a law enforcement officer has stopped a person for questioning
pursuant to this section and reasonably suspects that such officer's personal safety
requires it, such officer may frisk such person for firearms or other dangerous weapons. If
the law enforcement officer finds a firearm or weapon, or other thing, the possession of
which may be a crime or evidence of crime, such officer may take and keep it until the
completion of the questioning, at which time such officer shall either return it, if lawfully
possessed, or arrest such person."
Regardless of Kansas' statutory requirements for effecting an investigatory
detention, the ultimate constitutionality of such a seizure is still measured against the
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requirements of Terry and the Fourth Amendment. See Sibron v. New York, 392 U.S. 40,
60-61, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) ("New York is . . . free to develop its own
law of search and seizure to meet the needs of local law enforcement . . . . It may not,
however, authorize police conduct which trenches upon Fourth Amendment rights."). The
statute's—and the Court of Appeals panel's—more general wording on officer safety
would tend to broaden the universe of permissible searches. Compare Arizona v.
Johnson, 555 U.S. 323, 326-27, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009) (applying
Terry, requiring reasonable suspicion that detainee is "armed and dangerous" to justify
frisk), with Rodriguez v. United States, 575 U.S. __, 135 S. Ct. 1609, 1616, 191 L. Ed. 2d
492 (2015) (discussing government's "officer safety interest" in context of extending
seizures during traffic stops, "'especially fraught with danger to police officers'"). In the
context of searches incident to arrest, officer safety has long been an explicit concern. See
Riley v. California, 573 U.S. __, 134 S. Ct. 2473, 2483, 189 L. Ed. 2d 430 (2014)
(acknowledging officer safety justification for assessing reasonableness of search
incident to arrest) (quoting Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034,
23 L. Ed. 2d 685 [1969]). Because the United States Supreme Court's wording of the
second prong of Terry still focuses on whether the person stopped is armed and presently
dangerous, we will continue to make that our focus as well.
For purposes of its analysis, the Court of Appeals panel assumed that the State
had met its burden to show that the two WSU officers had a reasonable suspicion Bannon
was violating the law—satisfying the first prong of Terry—and proceeded immediately to
the second question of whether the officers reasonably believed a limited search of
Bannon's person was necessary. Bannon, 2015 WL 8588451, at *3. As we conclude that
the panel applied the wrong legal test to answer this second question, and the case must
be remanded to it for re-evaluation under the correct test, we also focus our attention only
on the second prong of the Terry analysis.
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The panel implicitly acknowledged by assuming that the first prong was satisfied,
that the legality of a stop or initial seizure of a person does not necessarily validate a
subsequent patdown. We agree. See Terry, 392 U.S. at 23; United States v. Thomas, 863
F.2d 622, 628 (9th Cir. 1988). "Each element, the stop and the frisk, must be analyzed
separately; the reasonableness of each must be independently determined." Thomas, 863
F.2d at 628. When addressing the second prong, a reviewing court is
"concerned with more than the governmental interest in investigating crime; in addition,
there is the more immediate interest of the police officer in taking steps to assure himself
that the person with whom he is dealing is not armed with a weapon that could
unexpectedly and fatally be used against him." Terry, 392 U.S. at 23.
In light of the number of law enforcement officers killed and wounded in the line
of duty each year, law enforcement officers have an interest in protecting themselves and
other prospective victims of violence in situations where they may lack probable cause
for an arrest. 392 U.S. at 24.
"When an officer is justified in believing that the individual whose suspicious behavior
he is investigating at close range is armed and presently dangerous to the officer or
others, it would appear to be clearly unreasonable to deny the officer the power to take
necessary measures to determine whether the person is in fact carrying a weapon and to
neutralize the threat of physical harm." 392 U.S. at 24.
The Court of Appeals panel interpreted Terry's second prong to require explicit
evidence that the officers conducting a patdown actually, subjectively believed at the
time that it was necessary for their own or for public safety. See 2015 WL 8588451, at *3
("[T]he officers failed to identify they proceeded with the pat-down search and seizure of
Bannon because they were concerned for their safety or the safety of others." [Emphasis
added.]). The precise question before us is whether the test under Terry's second prong—
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a reasonable suspicion that the person is armed and presently dangerous—is subjective or
objective. Must a law enforcement officer testify that he or she actually suspected that a
person was armed and presently dangerous?
Courts addressing the subjective/objective distinction are split.
In United States v. Lott, 870 F.2d 778 (1st Cir. 1989), for example, the First
Circuit held that an officer must have an actual suspicion that weapons are present in
addition to that suspicion qualifying as objectively reasonable.
"Although Terry and [Michigan v.] Long[, 463 U.S. 1032, 103 S. Ct. 3469, 77 L.
Ed. 2d 1201 (1983),] speak in terms of an objective test ('reasonableness') for determining
the validity of an officer's frisk for weapons, we do not read those cases as permitting a
frisk where, although the circumstances might pass an objective test, the officers in the
field were not actually concerned for their safety. Indeed, this point seems to be implicit
in the Supreme Court's reasoning. See, e.g., Long, 463 U.S. at 1049, 103 S. Ct. at 3480 (a
search for weapons is allowed 'if the police officer possesses a reasonable belief')
(emphasis added); id. at 1051, 103 S. Ct. at 3482 (police may search if 'they possess' a
reasonable belief) (emphasis added); id. at 1052 n. 16, 103 S. Ct. at 3482 n. 16 (in order
to search, 'the officer must have an articulable suspicion') (emphasis added); Ybarra[ v.
Illinois], 444 U.S. [85,] 93, 100 S. Ct. [338, 62 L. Ed. 2d 238 (1979)] (a frisk is permitted
by the officer when 'he reasonably believes or suspects' the detainee to be armed)
(emphasis added). An officer cannot have a reasonable suspicion that a person is armed
and dangerous when he in fact has no such suspicion.
Bolstering our conclusion that an officer must have an actual suspicion that
weapons are present before a Terry search can be made are two further points. First, the
Supreme Court and this court have consistently pointed to such facts. See, e.g., Long, 463
U.S. at 1036, 103 S. Ct. at 3473 (upon observing knife in car, officer frisked suspect and
searched car for additional weapons); Pennsylvania v. Mimms, 434 U.S. 106, 107, 98 S.
Ct. 330, 331, 54 L. Ed. 2d 331 (1977) (per curiam) (officer performed Terry frisk fearing
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that bulge might be a weapon); [Adams v.] Williams, 407 U.S. [143,] 145, 92 S. Ct.
[1921, 32 L. Ed 2d 612 (1972)] (officer was informed that suspect had a gun in his
waist); Terry, 392 U.S. at 6, 88 S. Ct. at 1872 (officer feared the suspects might have a
gun); Sibron, 392 U.S. at 46, 88 S. Ct. at 1894 (officer never suggested he searched out of
a fear that suspect was armed and dangerous); id. at n. 4, 88 S. Ct. at 1874 n. 4 (same); id.
at 64, 88 S. Ct. at 1903 (finding a Terry frisk invalid in part because officer did not fear
suspect was armed and dangerous); id. at 21, 88 S. Ct. at 1879; United States v. Trullo,
809 F.2d 108, 110 (1st Cir.) (bulge in suspect's pocket), cert. denied, 482 U.S. 916, 107
S. Ct. 3191, 96 L. Ed. 2d 679 (1987); Ballou v. Massachusetts, 403 F. 2d 982, 985 (1st
Cir. 1968) ('the sole focus of suspicion here was that the suspects were armed'), cert.
denied, 394 U.S. 909, 89 S. Ct. 1024, 22 L. Ed. 2d 222 (1969). Second, where a search
has been made without any legal basis, we do not think that an ex post facto
reconstruction based upon an argument of objective reasonableness can validate the
search. While other officers might have viewed the situation differently, it is the conduct
of these officers which we are judging." Lott, 870 F.2d at 783-84.
But, more recently, the First Circuit has questioned the continuing validity of
requiring a subjective belief.
"It is an open question whether Lott's 'actual fear' analysis is consistent with the
Supreme Court's later comment in Whren [v. United States] that 'the constitutional
reasonableness of traffic stops [does not depend] on the actual motivations of the
individual officers involved.' 517 U.S. [806, 813, 116. S. Ct. 1769, 135 L. Ed. 2d 89(1996)]. True, Whren held that an officer's subjective intentions were irrelevant to the
constitutionality of the traffic stop itself. But its reasoning casts doubt on Lott's holding
that an officer's subjective fears must be demonstrated to justify a car search under
Long[,] even if there is an objectively reasonable basis for an officer to fear for his
safety." United States v. McGregor, 650 F.3d 813, 821-22 (1st Cir. 2011).
Other circuits also have held or intimated that the subjective belief of officers is
irrelevant to the constitutional propriety of a frisk. See United States v. Cummins, 920
F.2d 498, 502 (8th Cir. 1990) ("As we apply an objective standard of reasonableness to
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this determination, our conclusion is not changed by [Officer Dan] Bernal's testimony
that he had no subjective fear that either [Gregory Lynn] Cummins or [Timothy] Akins
were armed."); United States v. Brown, 188 F.3d 860, 866 (7th Cir. 1999) (even if
evidence had not supported officer's subjective belief suspect armed, test objective); see
also United States v. Wald, 216 F.3d 1222, 1227 (10th Cir. 2000) (acknowledging split of
authority).
In State v. Warren, 78 P.3d 590 (Utah 2003), the Utah Supreme Court took a
hybrid approach. It considered the existence of an officer's subjective belief or fear, if
any, as one factor in the totality of circumstances examined in an objective analysis of the
totality of the circumstances.
"Though an officer's subjective belief alone is insufficient to validate or
invalidate a Terry frisk, to completely disregard an officer's subjective belief excludes a
potentially important element of the analysis. . . .
"The totality of the circumstances analysis objectively evaluates all facts before
the officer at the time the officer made the decision. The officer, with experience and
training, is in the best position to evaluate the circumstances and determine the
reasonableness of a Terry frisk. We recognize that some officers may never admit that
they feared for their safety. Likewise, other officers may always claim they believed a
stop was dangerous in order to justify a frisk. Nevertheless, an officer's own evaluation of
the circumstances may provide valuable insight to factor into the objective analysis. How
much weight this factor is given is a determination for the individual court, though a
Terry frisk cannot be validated or invalidated based solely on a subjective belief because
no one factor alone is determinative of reasonableness. An officer's determination that a
person may be armed and dangerous, like an officer's subjective interpretation of the facts
to determine that a crime has been or is being committed, is one of several possible
articulable facts a court may consider as part of the totality of the circumstances."
[Citations omitted.] Warren, 78 P.3d at 596.
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We agree with the Utah Supreme Court that testimony about an officer's subjective
belief, if any, may be a factor to consider when applying the objective reasonableness test
used for evaluating the constitutionality of a Terry frisk. This holding is consistent with
this court's earlier observation that reasonableness based on the totality of the
circumstances is viewed "'in terms as understood by those versed in the field of law
enforcement.'" State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998).
"'When evaluating these factors, we judge the officer's conduct in light of common sense
and ordinary human experience. [Citation omitted.] "Our task . . . is not to pigeonhole
each purported fact as either consistent with innocent travel or manifestly suspicious,"
[citation omitted], but to determine whether the totality of the circumstances [justifies]
the detention. [Citation omitted.] We make our determination with deference to a trained
law enforcement officer's ability to distinguish between innocent and suspicious
circumstances, [citation omitted], remembering that reasonable suspicion represents a
"minimum level of objective justification," which is "considerably less than proof of
wrongdoing by a preponderance of the evidence."' United States v. Sokolow, 490 U.S. 1,
7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 [(1989)]' [United States v. Mendez,] 118 F.3d
[1426,] 1431 [(10th Cir. 1997)]." DeMarco, 263 Kan. at 735.
In short, an officer's subjective fear or belief that a stopped person is armed and
presently dangerous is not individually controlling on the question of reasonableness of a
frisk. It is not indispensable, but it is not to be ignored.
Because the Court of Appeals panel incorrectly treated the fact that "the officers
never testified they were concerned for their safety or the safety of others" as a
dispositive negative determinant on the constitutionality of the Terry frisk, we reverse its
decision and remand this case to the panel to apply the correct legal standard. The
question under Terry's second prong is objective: whether an officer would reasonably
suspect that the person stopped is armed and presently dangerous. And any testimony on
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the officer's actual subjective belief or suspicion on that point is just one factor to
consider in the totality of the circumstances.
One final point bears mention. Should the Court of Appeals determine on remand
that the gun did not require suppression, it must also consider and rule upon defendant
Bannon's other appellate challenge.
CONCLUSION
The Court of Appeals panel applied the incorrect test to evaluate reasonable
suspicion supporting the Terry frisk of Bannon. Accordingly, we reverse the Court of
Appeals and remand the case to it for consideration under the correct test and for further
proceedings as necessary.
ROSEN, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.
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