State v. Carr ( 2017 )

No. 116,228
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
RALFEAL ERON CARR,
Appellant.
SYLLABUS BY THE COURT
1.
The Fourth Amendment to the United States Constitution protects us from
unreasonable searches or seizures. A vehicle stop is a seizure under the Fourth
Amendment.
2.
To lawfully stop a vehicle to investigate a crime (an investigatory detention),
officers must have reasonable suspicion—an objective and specific basis for suspecting
that the person being stopped is involved in criminal activity, either because the person is
committing a crime, has committed a crime, or is about to commit a crime. What is
reasonable depends on all the circumstances as viewed from the perspective of a trained
police officer, but officers must have specific and articulable facts in support of their
suspicion for it to be reasonable.
3.
To stop a vehicle based on suspicion that a person properly subject to police
investigatory detention is in it, an officer must have specific and articulable facts that the
person is in the vehicle. If the officer knows only that a relative of the suspect owns a
similar car that had at some point been seen at the suspect's residence, the officer does not
have specific and articulable facts to support reasonable suspicion that the suspect is in
the vehicle at a later time.
4.
When police perform an unconstitutional search or seizure, the exclusionary rule
generally bars the admission and use of the evidence obtained in a criminal trial. Because
the exclusionary rule is a court-made remedy designed to deter improper police conduct,
it is subject to several exceptions. One is the inevitable-discovery exception, which
allows the admission of otherwise unconstitutionally obtained evidence if the police
eventually would have found that evidence by lawful means.
5.
In this case, the defendant's cell phone was obtained by police through an unlawful
car stop. Police then used that cell phone to determine the defendant's cell-phone number
and to obtain relevant phone records. But officers would have discovered the same
information even if they had not used the cell phone. The database that officers use to
review phone records indicated that the phone number likely belonged to the defendant.
Likewise, the same phone number appeared in a rap-music video that the defendant
made. Under these circumstances, the district court properly concluded that officers
would have inevitably discovered the same phone records even if they had not used the
cell phone obtained through an unlawful car stop.
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6.
Because the only evidence supporting the defendant's marijuana-possession
conviction was found after an unlawful car stop, the defendant's conviction must be
reversed.
7.
Even a trial error that infringes upon a defendant's constitutional rights may be
declared harmless if the State proves beyond a reasonable doubt that the error did not
affect the trial's outcome in light of the entire record.
8.
In this case, the defendant was connected to a vehicle used in a drive-by shooting
in part because officers found a car key in his pocket during an unlawful car stop that
took place the day after the shooting. Based on our review of all the evidence in the case,
we cannot say beyond a reasonable doubt that the admission of the key and other
inadmissible evidence obtained through the unlawful car stop had no effect on the jury's
verdict. We therefore reverse the defendant's conviction for aggravated battery and
remand the case for a new trial.
9.
Under the business-records exception to the hearsay-evidence rule, records of acts
or events may be offered for their truth if the judge finds that (1) they were made as part
of regular business operations at or about the time of the acts or events and (2) the
sources of information for the records indicate they are trustworthy.
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10.
An appellate court reviews a district court's decision to admit business records
only for abuse of discretion, meaning that we reverse only if the district court's decision
is one no reasonable person would agree with or was based on a legal or factual error.
11.
Information collected by reliable computer systems in the regular course of
business and then compiled into a document by a business employee is generally
admissible under the business-records exception. The district court did not err when it
admitted cell-phone records maintained in the ordinary course of business by a cell-phone
provider.
Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed October 27, 2017.
Reversed and remanded with directions.
Christopher M. Joseph and Carrie E. Parker, of Joseph, Hollander & Craft LLC, of Topeka, for
appellant.
Jodi Litfin, deputy district attorney, Michael F. Kagay, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before GREEN, P.J., BUSER and LEBEN, JJ.
LEBEN, J.: Ralfeal Eron Carr appeals his convictions for possession of marijuana
and aggravated battery, the latter conviction based on Carr's alleged participation in a
drive-by shooting and police chase. Carr argues that significant evidence against him for
both charges came from an unlawful car stop and shouldn't have been admitted. We
agree: officers lacked reasonable suspicion to believe Carr was in the vehicle they
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stopped. Accordingly, the marijuana found after the stop in his pocket can't be used as
evidence and Carr's marijuana-possession conviction must be reversed.
The State used additional evidence found through the unlawful car stop to support
Carr's aggravated-battery conviction; the State argues that we should find any error in the
admission of that evidence harmless. But on the standard that applies here, we can only
find the error harmless if we conclude beyond a reasonable doubt that its admission didn't
lead to Carr's conviction. We are unable to make that finding here. One of the items
found on Carr was a key to the vehicle apparently used in the drive-by shooting. While
there was other circumstantial evidence that Carr had been in that vehicle when the crime
was committed, having the vehicle key in his possession only a short time later formed a
critical link. Given the circumstantial nature of the case, we cannot conclude beyond a
reasonable doubt that the jury would have convicted Carr without the evidence illegally
obtained at the car stop. We therefore reverse his aggravated-battery conviction as well
and send the case back to the district court for a new trial on that charge.
FACTUAL AND PROCEDURAL BACKGROUND
Two shootings in Topeka in July 2015 are at the heart of this case. On July 17,
Royelle Lamont Miller was outside in front of his house when someone in a car driving
by shot him. The next day, someone shot and killed Antwon Love. (Since we will refer to
several people from the same family and none of the significant parties or witnesses have
the same first name, we will generally refer to the witnesses and actors by their first
names.)
Shortly after Royelle was shot, around 9 p.m., Officers Barry Nelson and Scott
Koch from the Topeka Police Department saw a dark-colored Dodge Durango blow
through a stop sign in the Hi-Crest neighborhood. The officers attempted to stop the
Durango, but after initially pulling over, it sped away, resulting in a police chase. During
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the chase, the Durango ran through a second stop sign going approximately 70 miles per
hour. At some point, the officers lost sight of the Durango, but they later recovered a gun
they believed was thrown from it during the chase.
Around the same time, the officers learned that a shooting had occurred nearby, so
they responded to that scene. Royelle, who had been outside the house at the time of the
shooting, had been shot in his leg. He said a dark-colored car drove by when he was shot
but he did not see who shot him.
Andre Wallace and Jesse Hughes were also there when Royelle was shot, and
police found some bullet holes in the house. Andre initially told police that he was in the
house and did not see the shooting. He later testified at trial that he could not remember
what had happened or where he had been. Jesse testified that he "heard gun shots and hit
the floor." After Royelle was shot, Jesse walked away from the scene.
Police then spoke with Andre's mother, Wanda Wallace, who lived next door.
Officer Nelson testified that Wanda said she had seen someone driving around the block
several times earlier that day in a black SUV "holding his head and making threats."
Wanda allegedly told Nelson that she wasn't sure of the person's name but knew that he
was related to the Kelleys and lived in a yellow house across the street from the Kelleys.
Based on his knowledge of the Kelleys and the neighborhood, Nelson asked her if the
person's name was Ralfeal Carr, and she said yes. Wanda later spoke with a detective and
told him a similar account, telling him that Andre and Carr had "bad blood." But at trial,
Wanda said she did not remember anything that had happened, generally refused to
answer questions, and continually asked to go home while on the stand, even after
confronted with video footage of her speaking with police.
While Nelson was speaking with Wanda, Georgia Kelley arrived. Georgia owned
the Durango that had led officers on the chase. She initially told police that she had
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loaned her Durango to her nephew Carr that day. Georgia later testified at trial that she
had loaned the car to her other nephew, Antwon.
Antwon was killed the next day, July 18, near the site of the first shooting. Police
speculated that his murder might have been in retaliation for the shooting of Royelle the
day before.
On the day Antwon was killed, officers were in the neighborhood trying to gather
more information about the shooting of Royelle and saw a black Ford Explorer. Nelson
associated the Explorer with Carr, so he stopped it. Carr and his aunt, Georgia, were in
the Explorer; Georgia was driving and Carr was in the front passenger seat. The officers
arrested Carr and searched him as part of the arrest, finding a Dodge car key, a cell
phone, and over $5,000 in cash in his pocket. At the police station, officers again
searched Carr and found a piece of loose marijuana in his front left pocket.
Without a search warrant, police used Carr's cell phone to determine its phone
number. Police then sent a letter to the associated cell-phone company, Verizon, to
preserve the data related to the phone number until police could get a search warrant for
the records. After police got a search warrant, Verizon produced the records, and the
police were able to use cell-tower information from the records to locate the Durango in
the garage of William Lewis' house.
Lewis testified that Antwon had showed up around 10 p.m. on the night of the
shooting and asked if he could put his Durango in the garage. According to Lewis,
Antwon said that he had had a fight with his girlfriend and wanted to hide his car so she
wouldn't damage it. Police later confirmed that the Dodge key found on Carr belonged to
the Durango.
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On further review of the cell-tower information in Carr's phone records, police
determined that Carr's phone was in the area where police pursued the Durango, where
the shooting of Royelle occurred, and, shortly after that shooting, the Lewis residence,
where the Durango was later found.
The State charged Carr with aggravated battery, criminal discharge of a firearm at
an occupied dwelling, eluding police, possession of marijuana, speeding, and two counts
of failure to stop at a stop sign.
Before trial, Carr filed a motion to suppress some of the evidence, arguing that
officers had violated his constitutional rights by stopping the Explorer without sufficient
legal cause and by using his cell phone to get the number without getting a search
warrant. The district court concluded that although the vehicle stop was lawful, the police
had committed an unlawful search of Carr's cell phone. See Riley v. California, 573 U.S.
___, 134 S. Ct. 2473, 2493-94, 189 L. Ed. 2d 430 (2014) (holding that police should
generally get a search warrant before searching an arrested defendant's cell phone).
Nevertheless, the district court concluded that the State could use the cell-phone records
at trial because police would have inevitably discovered Carr's cell-phone number by
other lawful means and used it to get a search warrant.
After a four-day jury trial, the jury found Carr guilty of aggravated battery and
possession of marijuana but not guilty of the other charges. The district court sentenced
Carr to 100 months in prison for aggravated battery plus 12 months in the county jail for
the marijuana conviction, with the county jail time to begin after the prison sentence.
Carr then appealed to our court.
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ANALYSIS
Carr's primary argument on appeal is that the police didn't have legal cause to stop
the Ford Explorer, so the stop violated his constitutional rights. Because the car stop was
unlawful, Carr contends that the district court should have granted his motion to suppress
the evidence found in it—the marijuana, the Dodge Durango key, the $5,000 in cash, and
his cell phone. Carr also argues that without the cell phone, the State would not have
obtained his cell-phone records, so they too should have been excluded.
If Carr is right and all of this evidence should have been excluded, then his
convictions cannot stand. The State concedes that the marijuana conviction cannot stand
if the car stop was unlawful. And the evidence on the aggravated battery charge was
greatly strengthened by evidence found as a result of the stop—the Durango key and the
cell-phone records.
When the defense files a motion to suppress evidence arising from a police stop,
the State has the burden of proof to show that the stop was lawful. See State v. Cleverly,
305 Kan. 598, 605, 385 P.3d 512 (2016). On appeal, we must accept the factual findings
of the district court when substantial evidence supports them. We then review the legal
conclusions to be drawn from those facts independently, with no required deference to
the district court. State v. Howard, 305 Kan. 984, 988-89, 389 P.3d 1280 (2017).
The Fourth Amendment to the United States Constitution protects us from
unreasonable searches or seizures. A vehicle stop is a seizure under the Fourth
Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660
(1979); City of Atwood v. Pianalto, 301 Kan. 1008, 1011, 350 P.3d 1048 (2015). The
parties agree that the officers' stop of the Explorer was an investigatory stop, also known
as a Terry stop, named after the United States Supreme Court decision, Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). To lawfully conduct a Terry stop,
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officers must have reasonable suspicion—an objective and specific basis for suspecting
that the person being stopped is involved in criminal activity, either because the person is
committing a crime, has committed a crime, or is about to commit a crime. State v.
Martinez, 296 Kan. 482, 486, 293 P.3d 718 (2013); K.S.A. 22-2402(1) (codifying rule
that law enforcement may stop a person in a public place when the officer reasonably
suspects the person "is committing, has committed or is about to commit a crime").
Reasonable suspicion is a lower standard than probable cause, which exists when a
person of reasonable caution could conclude from the known facts that a crime has been
or is being committed. State v. Keenan, 304 Kan. 986, 994, 377 P.3d 439 (2016);
Martinez, 296 Kan. at 487. What is reasonable depends on all the circumstances as
viewed from the perspective of a trained police officer, State v. Sharp, 305 Kan. 1076,
1081, 390 P.3d 542 (2017), but officers must have specific and articulable facts in
support of their suspicion for it to be reasonable. State v. Chapman, 305 Kan. 365, 370,
381 P.3d 458 (2016).
In this case, officers testified at the hearing on Carr's motion to suppress evidence
that they stopped the black Ford Explorer because one of the officers associated it with
Carr and they were looking for Carr in connection with the recent shooting. What's
critical, though, is the basis for that association. Did the officers support the claim of
reasonable suspicion with specific and articulable facts?
Officer Nelson explained that he associated the Explorer with Carr because Nelson
knew that a relative of Carr owned a black Explorer, the relative had a son or other
relative who had appeared in Carr's rap videos, and the officer had seen the vehicle at
Carr's house before:
"The [Dodge Durango] that we pursued that day was registered to a Georgia
Kelley. The Kelleys, I know, are associated with Mr. Carr. They are a relative in some
way. I know that Jacqueline Kelley had a black Ford Explorer. Jacqueline Kelley has a
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son or some relative that is named Marcus Henderson and Mr. Carr's rap videos, Marcus
Henderson is in most, if not all, of [Carr's] rap videos and I've also seen that Explorer at
[Carr's] house on Bryant before."
Nelson acknowledged that he had not seen a traffic violation and could not see
who was in the Explorer before he stopped it. Thus, there was no basis for the Terry stop
except in an attempt to find Carr, a suspect in the shooting of Royelle.
Nelson said that he would not have stopped all of Carr's relatives, only those
whose vehicles he associated with Carr. Nelson said he associated Carr with three
vehicles: the Dodge Durango, the Ford Explorer, and a white Cadillac that had appeared
in Carr's rap videos. Nelson said he did not think that Carr owned any vehicles himself.
Nelson said that, in his experience and training, "a lot of these people" registered their
cars in other relatives' or friends' names.
In its written order considering Carr's motion to suppress evidence, the district
court concluded that Nelson "had a reasonable and articulable suspicion that [] Carr was
in the Explorer and that he had committed a crime" based on the officer's "knowledge of
Carr's association with the Ford Explorer and his knowledge that Carr was a suspect in
the fleeing and eluding and the shooting [of Royelle]." The central question is whether a
wanted person's "association" with a car alone gives an officer reasonable suspicion to
stop that car without other facts or information that suggest the wanted person is in the
car on that particular day. Put another way, how closely associated with a vehicle must a
suspect be to justify a Terry stop?
Past cases from our court provide some guidance. In State v. Steen, 28 Kan. App.
2d 214, 216-18, 13 P.3d 922 (2000), our court suggested that a wanted person's
association with a car based on having been a passenger or driver in the past would be
sufficient to establish reasonable suspicion. Police stopped a car in which a black man
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and a black woman were riding after running the license plate in a computerized
database. That check established that a black male named Damon DeWayne Steen was
"associated with" the car and that a person by that name had an outstanding warrant. Our
court concluded that the officers didn't have enough information to form reasonable
suspicion that the black man in the car was Steen because there was no information about
how Steen was "'associated with'" the car. We set aside the district court's order denying
the suppression motion but remanded the case for a hearing at which the State could
attempt to show that the database included only those "associated with" cars because they
had previously driven or ridden in the car or to present evidence that the police officer
had specific information from the database or elsewhere to establish such a link. 28 Kan.
App. 2d at 218. In essence, the Steen court implied that association with a car based on
having been a driver or passenger would give officers reasonable suspicion that the
wanted person would be in the car at some future time. 28 Kan. App. 2d at 216.
We found insufficient support for reasonable suspicion in State v. Smith, No.
89,465, unpublished opinion filed April 25, 2003. Before conducting the car stop in this
case, the officer knew that there was possibly an active arrest warrant for Francisco
Esparza; that Francisco had been known to use cars registered to Anna Esparza; that the
car in question was registered to Anna; that the car was associated with Francisco; and
that two males were in the car. We concluded in Smith that while the officer's personal
knowledge of Francisco's association with the car might satisfy the minimal requirements
in Steen, the circumstances in the case did not rise to the level of reasonable suspicion.
Specifically, the officer had no specific basis for believing that Francisco was in the car at
that particular time:
"Furthermore, even assuming that the officer operated on a good faith belief that
a warrant for the arrest had been issued with respect to Francisco Esparza and that
Francisco Esparza had previously been known to use this particular car, the officer
articulated no basis for believing that Francisco Esparza was inside the vehicle on this
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particular morning. The officer testified that he could only identify that the vehicle's
occupants were both males. The officer provided no physical characteristics which would
make it reasonably likely that Francisco Esparza drove the vehicle rather than another
individual. In fact, the officer admitted that he would have likely stopped the vehicle on
the mere possibility that Esparza was in the vehicle." Smith, slip op. at 6.
Recently, our court concluded that an officer's personal knowledge that a wanted
person was associated with a car's registration coupled with other circumstances created
reasonable suspicion to stop that car. In State v. McQueary, No. 115,210, 2017 WL
2713022 (Kan. App. 2017) (unpublished opinion), petition for rev. filed July 19, 2017, an
officer was routinely running car tags when he ran a tag for a Cadillac that came back as
registered to a person wanted on an arrest warrant. The officer knew that the wanted
person was associated with a dark gray Cadillac, though he did not know it was that
particular Cadillac until he ran the tags. In addition to having the "tag [come] back to" the
person wanted on the warrant, the officer also witnessed the driver engage in odd, evasive
behavior at a gas station. 2017 WL 2713022, at *1. A court must consider all the
circumstances, and here we concluded that the officer's personal knowledge of the link
between the wanted person and a dark gray Cadillac, the result of the tag check, and the
observations of suspicious behavior gave the officer reasonable suspicion to stop the car.
2017 WL 2713022, at *4.
We have found a few cases from other jurisdictions that provide useful guidance.
These courts generally have found that if the officer has nothing more than knowledge of
a close relationship between the suspect and the owner of the vehicle or that the suspect
had previously driven or ridden in the car, that doesn't give the officer sufficient specific
and articulable facts to support a reasonable suspicion that the suspect will be in the car at
the time of the stop.
In United States v. Hudson, 405 F.3d 425 (6th Cir. 2005), police had received an
anonymous tip that a woman police believed to be the girlfriend of the suspect would
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arrive at her work place at a given time in a particular car. Police claimed that the
anonymous tip also said that the woman would be accompanied by the wanted suspect,
but the court did not find that the evidence supported that claim. 405 F.3d at 433. Police
confirmed where the woman worked, what time she would show up for her shift, and
what kind of car she drove. When police saw the woman arrive at work with two male
passengers in the car, they approached the vehicle with guns drawn, handcuffed and
searched the three, and then identified one of the passengers as the wanted suspect. The
United States Court of Appeals for the Sixth Circuit concluded the police had no basis to
believe that the wanted suspect would be accompanying his girlfriend to work on the day
in question and had made no attempts to reasonably identify one of the passengers as the
suspect before stopping the car. 405 F.3d at 433-34, 438. The court held that the "officers'
bare hope of finding a suspect at a particular location does not constitute a particularized
and objective basis for seizing, even temporarily, a vehicle and its occupants at that
location." 405 F.3d at 438.
In State v. Beltran, No. 2 CA-CR 2007-0070, 2008 WL 4552869 (Ariz. App.
2008) (unpublished opinion), an officer testified that he had stopped the car because
someone with an outstanding warrant had been associated with the car at one time; the
officer had not witnessed any other suspicious behavior or traffic violations. The officer
also did not attempt to determine whether the driver of the car matched the description of
the wanted person. The court concluded that police lacked reasonable suspicion to stop
the car because the officer had "only a hunch that, because [the wanted person] had been
in the car at some unknown time in the past, he might be there again" and had no
information to suggest the person was in the car at the time of the stop. 2008 WL
4552869, at *4.
In State v. Eleneki, 106 Hawai'i 177, 181, 102 P.3d 1075 (2004), the Hawai'i
Supreme Court concluded that the police had no reasonable suspicion that a wanted man
was in Jasmine Eleneki's car merely because he had been in her car the night before.
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Before stopping the vehicle, officers knew that Eleneki had picked up the man the
previous night after he was released from police custody, that the car was at a
convenience store, and that there were two passengers in the car. Due to the window tint,
police were not able to identify the passengers before stopping the car. The police officer
acknowledged that he didn't know whether the wanted man was in the car but hoped he
was. The Eleneki court concluded that the mere fact that the wanted man had been in the
car the night before would not create reasonable grounds for believing that the man
would be in the car the following day. 106 Hawai'i at 181.
By contrast, when other courts have held that police had reasonable suspicion to
conduct an investigative stop based on a suspect's association with the car, officers have
also had other information raising suspicion or had other grounds to suggest that the
suspect was in the car.
For example, in United States v. Moran, 503 F.3d 1135 (10th Cir. 2007), a
landowner reported a trespass and identified the trespasser. She said he was still on the
property when officers arrived, and shortly after the woman's report an officer saw a
black SUV across the road from the landowner's property. The officer had personal
knowledge that the man the landowner had identified as the suspect drove a black SUV.
The United States Court of Appeals for the Tenth Circuit upheld the stop, concluding that
under all the circumstances—the reliable identification and report from the landowner,
the nearby black SUV, and police knowledge that the suspect drove a black SUV—the
police had reasonable suspicion that the suspect was in the black SUV and could lawfully
stop the vehicle. 503 F.3d at 1141.
In our case, based on the officers' testimony, they stopped the Explorer because
one of them associated it with Carr. The officer's association was based on (1) knowledge
that a relative of Carr owned a black Explorer and (2) having seen the vehicle at Carr's
house. Those facts aren't sufficient to provide reasonable suspicion that Carr was in the
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vehicle when it was stopped. In sum, the officers had a hunch or hope that Carr was in his
relative's vehicle but no facts or knowledge to support that hunch or hope. See Hudson,
405 F.3d at 438. Because the officers lacked reasonable suspicion that Carr was in the
Explorer, they had no legal cause to stop the vehicle.
Before we proceed to discuss what evidence should be suppressed based on the
illegality of the vehicle stop, we want to note some additional evidence that was
presented at the preliminary hearing. That hearing was held to determine whether the
State had enough evidence to proceed to trial on the felony charges against Carr. At that
time, Nelson testified that by association, he meant that Carr "[h]ad been seen in it,
driving it, around it, things of that nature." But at the motion-to-suppress hearing, Nelson
testified only that he associated Carr with the Explorer because it was owned by Carr's
relative and Nelson had seen it in Carr's driveway before. He did not repeat the claim that
Carr had been seen in or had been driving the Explorer, and his testimony on this point at
the preliminary hearing didn't indicate that he had personally seen Carr in the Explorer
before the day of the stop. We don't know the reason for this difference in testimony, but
we must rely on the evidence the State chose to present at the hearing on the motion to
suppress evidence. The State had the burden at that hearing to prove the validity of the
Terry stop and the vehicle search. See K.S.A. 22-3216(2).
When police perform an unconstitutional search or seizure, the exclusionary rule
generally bars the admission and use in a criminal trial of the evidence obtained. Because
the exclusionary rule is a court-made remedy designed to deter improper police conduct,
it is subject to several exceptions. See Davis v. United States, 564 U.S. 229, 236, 131 S.
Ct. 2419, 180 L. Ed. 2d 285 (2011); State v. Dennis, 297 Kan. 229, 235, 300 P.3d 81
(2013). Carr argues that, in accordance with the exclusionary rule, the district court
should have granted his motion to suppress the evidence obtained as a result of the
unlawful stop—the key, the cash, the marijuana, the cell phone, and the records
associated with the cell phone.
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The State argues that the cell-phone records were still admissible under the
inevitable-discovery exception to the exclusionary rule. The inevitable-discovery
exception allows the admission of otherwise unconstitutionally obtained evidence if
police eventually would have found that evidence by lawful means. See Utah v. Strieff,
579 U.S. ___, 136 S. Ct. 2056, 2061, 195 L. Ed. 2d 400 (2016); State v. Baker, 306 Kan.
585, 590-91, 395 P.3d 422 (2017). For the exception to apply, the State must prove by a
preponderance of the evidence that the evidence would have inevitably or ultimately been
discovered by lawful means. Baker, 306 Kan. at 591. A preponderance of the evidence
means the evidence establishes that a fact is more probably true than not true. State v.
Lloyd, 52 Kan. App. 2d 780, Syl. ¶ 2, 375 P.3d 1013 (2016).
Merely because the stop was unlawful does not mean that the cell-phone records
were inadmissible. It's true that if police hadn't stopped the car, they wouldn't have had
access to the cell phone to determine the phone number. (And the State has not appealed
the district court's finding that police conducted an unlawful search of the phone.) But if
police had other legal means to obtain the cell-phone number without physical access to
the phone, they still could have gotten a search warrant for the records. So we face the
same essential question that was before the district court: Would the State have inevitably
discovered the cell-phone number in a lawful manner so that it could have gotten a search
warrant for the records?
The district court relied on this evidence to conclude that it was more likely than
not that the State would have inevitably found the number:
 Nelson testified that another officer confirmed the number for the cell
phone found on Carr.
 Nelson said that he entered that number into a special database, which law
enforcement uses to search names, phone numbers, and other information,
and the results showed the number was a 66 percent match to Carr.
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 Nelson said that "[one] could look up [Carr's] name in [the database] and
the number would come up as being a number associated with [him.]"
 Nelson also said that he could have learned the number from one of Carr's
rap videos on YouTube. Nelson said that he had watched the video before
the shooting and looked at it again closely after the shooting. He reported
that in the video, a text message is displayed on another cell phone; the
message says "come in" and appears to be sent to the number of the phone
found on Carr. Nelson said that after the message flashes on the screen,
Carr and another person walk into a room and act like they are shooting two
people inside.
The district court credited Nelson's account that he would have seen the number in
Carr's rap video and that a search in a specialized database relied on by police would have
linked Carr to the number as a 66 percent match. Its findings are supported by substantial
evidence. This isn't a case based on tenuous links and mere speculation of events that
would have had to happen for police to discover the number. Cf. State v. Wilburn, 50
Kan. App. 2d 663, 682-84, 332 P.3d 199 (2014). Rather, Nelson was reviewing the rap
video after the shooting and used the specialized database as part of his investigation. We
conclude that it was likely he would have discovered the number by lawful means; police
then could have used it to seek a search warrant. The district court did not err in
determining that the cell-phone records were admissible under the inevitable-discovery
exception to the exclusionary rule.
The State does not address the admissibility of the key or cash and concedes that if
the marijuana should have been suppressed, Carr's conviction for possession must be
reversed. The only evidence supporting the marijuana conviction stemmed from the
unlawful stop—had police not stopped the Explorer, they would not have been able to
search Carr and discover the marijuana. Accordingly, Carr's conviction for possession of
marijuana must be reversed.
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We have determined, then, that the key, the cash, and the marijuana should not
have been admitted as evidence at trial. While the State did not address admissibility of
the key or cash on appeal, the State does argue that any error in admitting improper
evidence was harmless in light of the evidence against Carr, which the State categorizes
as overwhelming. "[E]ven an error that infringes upon a constitutional right may be
declared harmless if the benefitting party proves beyond a reasonable doubt that the error
did not affect the outcome of the trial in light of the entire record." State v. Garcia, 297
Kan. 182, 197, 301 P.3d 658 (2013).
The key was used to link Carr to the Durango. The cash was also mentioned at
trial, with the prosecutor suggesting in argument to the jury that Carr had the cash
because he planned to leave town.
Even without the key and cash, though, the State correctly notes that there was
strong evidence against Carr. The remaining evidence included the cell-phone records
showing that he could have been at the key locations at the right times, Wanda's initial
statement to police that she had seen Carr driving around in a black SUV earlier, and
Georgia's initial statement to police that she had loaned her Durango to Carr on the day of
the shooting. But Wanda wouldn't repeat those statements under oath at trial, Wanda had
also told officers she didn't see the actual shooting, and Georgia said at trial that she had
loaned the Durango to Antwon, not Carr. In addition, jurors acquitted Carr of several
other charges—criminal discharge of a firearm at an occupied dwelling, eluding police,
failing to stop at a stop sign, and speeding.
The acquittal for discharging a firearm at an occupied dwelling is of particular
interest because this was the dwelling Royelle was in front of when he was shot. So the
jury convicted Carr of shooting at Royelle but acquitted Carr of shooting at the dwelling
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behind him. Both offenses could have been proved either by evidence that Carr was the
shooter or that he aided the shooter in some way in committing these crimes.
In her closing statement to the jury, the prosecutor said the key question was
"[w]ho was driving the SUV" because the driver was "clearly the same person who did
the running from the cops and . . . the shooting at Royelle." She had emphasized the same
point in her opening jury argument when discussing the shots fired at the occupied
dwelling: "You can see a bullet hole under the bottom-left corner of that window. . . .
There is also a bullet hole in the window. . . . The only issue in this case was who was
driving that Durango?"
The jury viewed the case differently, acquitting Carr of fleeing police and shooting
into the dwelling but convicting him of shooting at Royelle. If jurors were unsure
whether Carr was the driver or a passenger when Royelle was shot, that could explain
acquittal on the charges related to fleeing police, but it wouldn't explain acquittal on the
charge of discharging a firearm at an occupied dwelling.
The prosecutor emphasized in closing argument the importance of the key found
when Carr was stopped. She told jurors that although Georgia testified she had loaned the
Durango to Antwon, no key was found with him, while a Durango key "was found in the
defendant's pocket, in his front left pocket less than 24 hours after the shooting." Given
the circumstantial nature of the evidence placing Carr in the vehicle when shots were
fired, the tangible evidence of the Durango key in his pocket less than 24 hours later was
significant.
We are unable to conclude, beyond a reasonable doubt, that the improper
admission of evidence about the key, the cash, and the marijuana had no impact on the
jury's verdict. We therefore reverse Carr's conviction and remand the case for a new trial.
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We must briefly address one other issue Carr has raised—that the Verizon
employee who testified about the cell-phone records, Mark Denton, didn't provide a
sufficient basis to admit those records.
The State used Verizon's records of Carr's cell-phone account to show Carr's
general location at various times. The State sought to introduce the documents under the
business-records exception to the hearsay-evidence rule. Under that exception, records of
acts or events may be offered for their truth if the judge finds that (1) they were made as
part of regular business operations at or about the time of the acts or events and (2) the
sources of information for the records indicate they are trustworthy. See K.S.A. 2016
Supp. 60-460(m); Wiles v. American Family Life Assurance Co., 302 Kan. 66, 78, 350
P.3d 1071 (2015).
Denton testified that he was a supervisor for the Verizon team that handles court
orders and search warrants. He described Verizon's separate sets of records for billing
purposes and for network information. He said that a Verizon employee under Denton's
supervision had received a search warrant for Carr's records and then had verified the
authenticity of the records collected. Denton said the network-information system
collects the information in the normal course of business and that employees "go in and
pull" the records when requested, putting the information into a readable format and
generating a report. Denton said Verizon has the system run performance tests and that
algorithms were used to check system reliability. In response to a question from Carr's
attorney, however, Denton said he didn't know how the algorithms worked; that was a
matter for system engineers.
We review the district court's decision to admit business records only for abuse of
discretion, meaning that we reverse only if the district court's decision is one no
reasonable person would agree with or was based on a legal or factual error. Wiles, 302
Kan. at 74. While Denton couldn't provide some details, like how often performance
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testing is done or how the algorithms used to check system performance are engineered,
he testified that Verizon relies on these records in the ordinary course of its business, that
the records couldn't be falsified, and that the person who put these records together did so
under Denton's supervision. Information collected by reliable computer systems in the
regular course of business and then compiled into a document by a business employee is
generally admissible under the business-records exception. E.g., People v. Zavala, 216
Cal. App. 4th 242, 247-48, 156 Cal. Rptr. 3d 841 (2013). We find no abuse of discretion
in the admission of the cell-phone records.
In addition to that issue about the cell-phone records, Carr raised two other issues
on appeal, but we need not address them based on the rulings we have already made.
First, he argued that the marijuana charge should not have been joined with the others for
trial. Since the only evidence supporting the marijuana charge has been held
inadmissible, this issue will not arise at any new trial. Second, he argued that the district
court should not have allowed the Verizon employee to testify remotely rather than in the
courtroom. That took place based on an unusual series of events that arose shortly before
trial. The State will have ample time to obtain an in-person witness at any new trial, so
we need not determine whether it was error to allow a Verizon employee to testify
remotely under the circumstances that arose at the prior trial.
The district court's judgment is reversed, and the case is remanded for further
proceedings.
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