State v. Bannon , 55 Kan. App. 2d 259 ( 2018 )

No. 112,212
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JOHN W. BANNON,
Appellant.
SYLLABUS BY THE COURT
1.
K.S.A. 2012 Supp. 21-6302(a)(4) provides a person carrying a concealed weapon
(i.e., pistol, revolver, or other firearm) on the person's land or in the person's abode
cannot be charged with criminal carrying of a weapon.
2.
As a general rule, criminal statutes are strictly construed in favor of the accused.
Additionally, the strict construction rule is constrained by the rule the interpretation of a
statute must be reasonable and sensible to effect the legislative design and intent of the
law.
3.
The common areas (i.e., the lobby, hallway, and/or other common areas) of an
apartment complex are generally not considered part of the abode or curtilage because the
tenant does not have exclusive control over access to the common area of the apartment
building.
1
4.
When interpreting a statute, words not defined in the statute must be construed
according to their common and approved usage.
5.
Abode is defined as a home; a place of residence. Land is defined as an
immovable and indestructible three-dimensional area consisting of a portion of the
Earth's surface, the space above and below the surface, and everything growing on or
permanently affixed to it; an estate or interest in real property.
6.
An ingress-and-egress easement is defined as the right to use land to enter and
leave another's property. Under the facts of this case, it would be the right to use the
common areas of the apartment building (i.e., the hallway, stairway, and lobby areas) to
come and go from the tenants' apartments.
7.
When reviewing a district court's decision on a motion to suppress, the appellate
court applies a bifurcated standard. The appellate court reviews the district court's factual
findings to determine whether they are supported by substantial competent evidence. The
ultimate legal conclusion is reviewed using a de novo standard. In reviewing the factual
findings, the appellate court does not reweigh the evidence or assess the credibility of
witnesses.
8.
A law enforcement officer may stop any person in a public place based upon
specific and articulable facts raising a reasonable suspicion that such person has
committed or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868,
20 L. Ed. 2d 889 (1968). K.S.A 22-2402(1), the Kansas stop-and-frisk statute, is a
2
codification of the Fourth Amendment search and seizure principles expressed in Terry.
9.
The ultimate question in determining whether property is embraced by a premises'
curtilage is whether the area in question is so intimately tied to the home itself that it
should be placed under the home's umbrella of Fourth Amendment protection. Four
principle factors guide whether the area is under the umbrella of the curtilage: (1) how
near the area is to the home; (2) whether any enclosures surrounding the home embrace
the area in question; (3) how the area is used; and (4) whether the resident has acted to
protect the area from observation by people passing by.
10.
The lobby area of an apartment building is generally not sufficiently private to
qualify as curtilage, therefore, it was sufficiently public for a Terry stop to occur.
11.
The court must look at each step of the Terry stop. Each element, the stop and the
frisk, must be analyzed separately; the reasonableness of each must be independently
determined.
12.
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.
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion on remand
filed January 12, 2018. Affirmed.
3
Richard Ney, of Ney & Adams, of Wichita, and Ian M. Clark, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before STANDRIDGE, P.J., BUSER and SCHROEDER, JJ.
SCHROEDER, J.: On remand from the Kansas Supreme Court, we address the two
issues John W. Bannon raised in the appeal of his jury conviction for criminal carrying of
a weapon under K.S.A. 2012 Supp. 21-6302(a)(4). The record reflects Bannon was
searched without a warrant in the lobby of Wheatshocker Apartments (Wheatshocker).
Bannon claims he was in lawful possession of his firearm in the front lobby to his
apartment building and the lobby qualifies as part of his abode or curtilage. Bannon's
argument the lobby qualifies as part of his abode or curtilage to his apartment is not
supported by the law and is unpersuasive.
Bannon also asserts the district court erred in not granting his motion to suppress
the evidence found as a result of an improper pat-down search. Bannon claims that
without a warrant, the officers lacked reasonable suspicion to search him pursuant to
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Bannon's perception
of the restriction placed on officers pursuant to Terry is misplaced. Here, based on a tip
from a known informant, the officers had reasonable suspicion to believe Bannon was
armed with a weapon. Therefore, officers had reasonable suspicion Bannon was presently
armed and dangerous, justifying a pat-down search for officer safety or for the safety of
the individuals in the apartment lobby. We affirm.
4
FACTS
Concerned parents of a Wichita State University (WSU) student went to the WSU
Police Department to report an incident their son related to them that occurred two weeks
prior at his campus residence, Wheatshocker.
Both Sergeant Bryson Potter and Officer Phillip Shelite of the WSU Police
Department spoke with the parents who informed them their son, Johnathon Wasserstein,
had seen a fellow resident in Wheatshocker carrying a gun. Sergeant Potter had the
parents retrieve their son and verified Wasserstein was a WSU student living in
Wheatshocker.
Wasserstein told the officers "[a] friend or an acquaintance that told him that he
works for Homeland Security; he always has guns on him; he interrogates people. He
said that he had his conceal and carry, and he had guns in his apartment, as well." The
individual's first name was John and he lived in one of two possible Wheatshocker
units—No. 414 or No. 514. Wasserstein provided a physical description of John for the
officers and told the officers John took Xanax and Morphine. Wasserstein was explicit
that he regularly hung out with John, and John always carried a gun. Officer Shelite
confirmed a John Bannon lived in apartment No. 414 at Wheatshocker.
When Sergeant Potter and Officer Shelite arrived at Wheatshocker, they were
advised by dispatch a student working at the lobby desk confirmed Bannon was currently
sitting in the Wheatshocker front lobby. "The front lobby is right inside [Wheatshocker].
You walk into the apartments and you have a—a desk where a worker always sits, and
there's a front lobby. It's a common area with seating and couches and everybody uses it;
students hang out there." Sergeant Potter and Officer Shelite observed a number of
students in the lobby.
5
The officers saw a man matching Bannon's physical description sitting in a chair
reading in the lobby. The officers approached Bannon. Sergeant Potter asked the
individual if his name was John, and he said, "Yes." Sergeant Potter then asked Bannon if
he had any weapons on him, and he said, "No." Officer Shelite grasped Bannon by the
arm and had him stand up for a quick pat-down. Officer Shelite located a black handgun,
loaded with a 15-round clip and a round in the chamber, on Bannon's right hip, inside his
waistband, with a shirt over it to conceal it. The officers secured the loaded weapon and
placed Bannon in handcuffs. WSU's policy at the time prohibited weapons on campus,
and this policy was integrated into Wheatshocker housing contracts.
The State charged Bannon with one count of criminal carrying of a weapon in
violation of K.S.A. 2012 Supp. 21-6302(a)(4), a class A nonperson misdemeanor, 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.
Prior to trial, Bannon moved to dismiss the charge against him, asserting he could
not be convicted because he was carrying a concealed weapon on his land or in his abode.
Following an evidentiary hearing, the State filed a memorandum of law, including the
student code of conduct, arguing the defenses of carrying on one's land or abode were not
available to a defendant who waived his right to carry as part of his rental contract for
residency at Wheatshocker. Further, the prohibition against firearms on WSU's campus
and in Wheatshocker were reasonable regulations exercised by WSU for the protection
and safety of its students. Bannon filed a response arguing WSU's gun policy was
irrelevant to the Kansas criminal statute regarding carrying a weapon on one's land or in
one's abode.
The district court found the lobby of Wheatshocker was not a part of Bannon's
land or abode and he could not claim any statutory exemptions to prosecution for
criminal carrying of a weapon. The district court denied Bannon's motion to dismiss.
6
After his motion to dismiss was denied, Bannon filed a motion to suppress the
evidence of the concealed handgun seized from his waist, arguing it was taken during a
warrantless search of his person within the curtilage of his apartment or, in the
alternative, that the officers lacked reasonable suspicion or probable cause to believe he
was committing a crime when they seized and searched him. The State responded,
arguing the lobby of Wheatshocker was not curtilage and the seizure of Bannon was a
valid investigatory stop.
Following an evidentiary hearing, the district court found the lobby of
Wheatshocker was public and not within the curtilage of Bannon's apartment, and the
officers had reasonable suspicion of a firearm-related crime or that the impersonation of a
law enforcement officer had been or was being committed when they contacted Bannon.
Therefore, the pat-down and discovery of Bannon's concealed firearm was
constitutionally permissible. A jury subsequently convicted Bannon of criminal carrying
of a weapon.
In an opinion dated December 11, 2015, this panel found Bannon's motion to
suppress should have been granted because a warrantless pat-down search of Bannon
occurred without any evidence that a law enforcement officer had an actual, subjective
belief Bannon was armed and presently dangerous. With this lack of evidence, we went
on to say the State failed to present evidence to support the second step of a Terry stop—
that the officers were reasonably concerned for their safety or the safety of others to
justify the move to a warrantless pat-down search.
The State requested the Kansas Supreme Court review our decision. The Supreme
Court accepted review and found a hybrid approach applied to the second step of the
Terry stop: testimony as to an officer's subjective belief or fear is a factor to be
considered in the objective analysis of the totality of circumstances, but the absence of
7
such testimony does not invalidate the reasonableness of a frisk. State v. Bannon, 306
Kan. 886, 896, 398 P.3d 846 (2017).
ANALYSIS
Wheatshocker lobby is not part of Bannon's land or abode.
On appeal, Bannon argues the district court erred when it denied his motion to
dismiss because he was legally allowed under K.S.A. 2012 Supp. 21-6302(a)(4) to carry
a concealed weapon while on his land or in his abode. Bannon further claims the district
court misconstrued the statute when it found the Wheatshocker lobby had to be under
Bannon's exclusive control to be considered his land or abode.
Interpretation of a statute is a question of law over which appellate courts have
unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014). Bannon was
charged with criminal carrying of a weapon in violation of K.S.A. 2012 Supp. 21-
6302(a)(4), which states: "(a) Criminal carrying of a weapon is knowingly carrying . . .
any pistol, revolver or other firearm concealed on one's person except when on the
person's land or in the person's abode or fixed place of business."
Bannon asks this court to find the Wheatshocker lobby was either (1) Bannon's
land or (2) an extension of his abode. In his reply brief, Bannon also argues the language
of K.S.A. 2012 Supp. 21-6302(a)(4) is clear and unambiguous.
The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. State v. Jordan, 303 Kan. 1017, 1019,
370 P.3d 417 (2016). An appellate court must first attempt to ascertain legislative intent
through the statutory language enacted, giving common words their ordinary meanings.
State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). When a statute is plain and
8
unambiguous, an appellate court should not speculate about the legislative intent behind
that clear language, and it should refrain from reading something into the statute that is
not readily found in its words. Barlow, 303 Kan. at 813. Where there is no ambiguity, the
court need not resort to statutory construction. Only if the statute's language or text is
unclear or ambiguous does the court use canons of construction or legislative history to
construe the legislature's intent. Barlow, 303 Kan. at 813.
While it is clear a person is exempt from prosecution for carrying a concealed
weapon on the person's land or abode under K.S.A. 2012 Supp. 21-6302(a)(4), what is
considered one's land or abode is ambiguous. Unfortunately, neither term is defined in the
Kansas Criminal Code.
When construing statutes to determine legislative intent, appellate courts must
consider various provisions of an act in pari materia with a view of reconciling and
bringing the provisions into workable harmony if possible. See State v. Keel, 302 Kan.
560, Syl. ¶ 7, 357 P.3d 251 (2015). The courts must construe statutes to avoid
unreasonable or absurd results and presume the legislature does not intend to enact
meaningless legislation. State v. Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014).
As a general rule, criminal statutes are strictly construed in favor of the accused.
Additionally, the strict construction rule is constrained by the rule the interpretation of a
statute must be reasonable and sensible to effect the legislative design and intent of the
law. Barlow, 303 Kan. at 813. "Criminal statutes and penalties in effect at the time of a
criminal offense are controlling. [Citation omitted.]" State v. Denney, 278 Kan. 643, 646,
101 P.3d 1257 (2004).
In its order denying Bannon's motion to dismiss, the district court attempted to
define whether the lobby was Bannon's land or abode. The district court was unable to
find Kansas caselaw directly on point; however, relying on cases from other jurisdictions
9
dealing with similar statutes, the district court found Bannon did not have exclusive
control of the area in question. Therefore, without exclusive control, the lobby did not
meet one of the statutory exceptions since the lobby was a semi-private area in the
apartment building:
"Bannon was in the residence hall's semi-private lobby. He was clearly not in any way in
exclusive control or possession of this area. While the area was not open to all, hundreds
of students, along with a few others, had the same level of access and control as Bannon
had in this lobby area."
The district court found he could not claim any statutory exemptions under K.S.A.
2012 Supp. 21-6302(a)(4) because the lobby was not a part of Bannon's land, abode, or
fixed place of business.
Whether the lobby of an apartment building is considered the tenant's land or
abode under K.S.A. 2012 Supp. 21-6302(a)(4) appears to be an issue of first impression
in Kansas. The district court was unable to base its decision on any specific Kansas
caselaw and neither party relies on Kansas caselaw on appeal. We have found only one
other unpublished Kansas case discussing a similar issue. Because so much of the
analysis for whether the lobby was an extension of Bannon's land or an extension of his
abode is similar, these issues will be addressed together except where distinction is
necessary.
Is the lobby a part of Bannon's land or an extension of his abode?
When interpreting a statute, words not defined in the statute must be construed
according to their common and approved usage. Black's Law Dictionary 1008 (10th ed.
2014) defines land as: "1. An immovable and indestructible three-dimensional area
consisting of a portion of the earth's surface, the space above and below the surface, and
everything growing on or permanently affixed to it. 2. An estate or interest in real
10
property." Black's Law Dictionary 6 (10th ed. 2014) defines abode as "[a] home; a place
of residence." Black's Law Dictionary 619 (10th ed. 2014) defines dwelling-house as
"[t]he house or other structure in which one or more people live; a residence or abode."
Bannon provides no caselaw on this issue. He argues given the lobby's exclusive and
unique characteristics as a controlled area requiring a key card to enter for those who
lived there is a factor that weighs in support of his argument. Therefore, given those
restrictions and the fact it contained laundry rooms and other facilities common to a home
or dwelling, Bannon argues we should construe the front lobby as an extension of his
apartment or abode.
Our research reveals a recent unpublished Kansas case discussing whether an
entire apartment building could be considered a part of a defendant's dwelling for
purposes of a defense of dwelling jury instruction. In State v. Spangler, No. 112,270,
2015 WL 3632523, at *8 (Kan. App. 2015) (unpublished opinion), a panel of this court
found the common areas of an apartment complex were not considered part of the
defendant's dwelling because while Spangler could control access into his individual
apartment, he could not prevent other residents or their invited guests access into the
building. While not directly on point, we find this same rationale applies to find Bannon's
abode was strictly his apartment and did not encompass the front lobby.
While we find little guidance on this point under Kansas law, we found several
cases from other jurisdictions that provide us guidance: Clark v. State, 49 Ark. 174, 4
S.W. 658 (1887) (Under Mansfield's Digest § 1907, the common stairway of a building,
on the upper floor of which defendant and other persons rented and occupied offices for
business purposes, is a public place, and cannot be claimed by defendant to be one's own
premises.); State v. Sealy, 208 Conn. 689, 692, 546 A.2d 271 (1988) ("[T]he stairway and
landing in [a] multi-unit dwelling are not part of the defendant's residence or abode.");
Sherrod v. State, 484 So. 2d 1279, 1281-82 (Fla. Dist. Ct. App. 1986) (Defendant, who
was carrying concealed weapon in parking lot of his apartment complex approximately
11
25-to-30 feet from building in which he resided, did not fall within statutory exception to
firearms statute for carrying a weapon at his home.); McNair v. State, 354 So. 2d 473
(Fla. Dist. Ct. App. 1978) (Defendant was not exempted from the crime of carrying a
concealed firearm where he was carrying pistol on his person when he was about 30-to-
35 feet from his apartment.); People v. Wilson, 29 Ill. App. 3d 1033, 1036, 332 N.E.2d 6
(1975) (Public areas in an apartment building to which tenants and invitees have access
are not the abode of any tenant, and thus, tenant who carried concealed weapon into
elevator of apartment building did not come within statutory exception.); State v.
Davidson, 217 N.W.2d 630, 632 (Iowa 1974) (A corridor used in common with tenants
and other persons was not within the definition of dwelling house for the purposes of
permitting one to carry a concealed weapon.); Commonwealth v. Dunphy, 377 Mass. 453,
458, 386 N.E.2d 1036 (1979) (In the prosecution for unlawfully carrying a firearm,
whether the defendant's conduct took place in a common area or in an area over which
defendant retained exclusive control was crucial to determining criminality of his
conduct.); Commonwealth v. Ortiz, 558 Pa. 473, 476, 738 A.2d 403 (1999) ("[T]he
common meaning of 'place of abode' is the actual house or apartment of a person. It does
not include common areas to which a person has a right of access but which are shared
with others who have a similar right of access. . . . The shared backyard of the apartment
house in which appellee's apartment is located is no more appellee's 'place of abode' than
is a tenant's shared elevator or fitness center in a high-rise apartment complex."); Wilson
v. State, 418 S.W.2d 687, 688 (Tex. Crim. App. 1967) (A tenant who carries a pistol upon
the grass, sidewalks, driveway, and parking lot jointly used by all tenants of a large
apartment complex is not on one's own premises within meaning of statute relating to
unlawful carrying of firearms.); White v. United States, 283 A.2d 21, 23 (D.C. 1971)
(Since defendant did not have exclusive control and possession of the hallway on the
floor above his apartment, he failed to bring himself within the statutory exemption that
no person shall carry a pistol without a license except in his dwelling house, place of
business or on other land possessed by him.).
12
Using the analysis in Spangler and multiple other jurisdictions as guidance, the
Wheatshocker lobby was not an extension of Bannon's apartment or abode. Bannon did
not have exclusive control over the area; it was a shared space in which hundreds of
students, their guests, WSU staff, and WSU security had access. Additionally, Bannon
did not hold legal title to the land, and while legal title is not required, he needed more
than nonexclusive permissive use with others.
Was the lobby an extension of Bannon's land via an easement?
At the motion to dismiss hearing and on appeal, Bannon argues that while the land
might not have been directly his, he acquired an interest in the land via an easement and
thus, it should meet the statutory exception. An easement is defined by Black's Law
Dictionary as:
"An interest in land owned by another person, consisting in the right to use or control the
land, or an area above or below it, for a specific limited purpose (such as to cross it for
access to a public road). The land benefiting from an easement is called the dominant
estate; the land burdened by an easement is called the servient estate. Unlike a lease or
license, an easement may last forever, but it does not give the holder the right to possess,
take from, improve, or sell the land. The primary recognized easements are (1) a right-of-
way, (2) a right of entry for any purpose relating to the dominant estate, (3) a right to the
support of land and buildings, (4) a right of light and air, (5) a right to water, (6) a right to
do some act that would otherwise amount to a nuisance, and (7) a right to place or keep
something on the servient estate." Black's Law Dictionary 622 (10th ed. 2014)
An ingress-and-egress easement is defined as "[t]he right to use land to enter and leave
another's property." Black's Law Dictionary 623 (10th ed. 2014).
However, we need not decide that issue. At the time of the stop and frisk, Bannon
was not using the lobby under an ingress-egress easement. He was sitting in a chair
13
reading a book. Thus, the lobby was not being used as an extension of his land covered
by an easement to carry directly to and from his apartment. We find under the facts of
this case, Bannon had no right under an easement to possess a firearm in the front lobby
of Wheatshocker.
Denial of Bannon's Motion to Suppress
Next, Bannon argues the district court erred in denying his motion to suppress
because (1) the officers violated his constitutional rights by performing a warrantless
search within the curtilage of his home and (2) even if the lobby was not considered
curtilage, the officers lacked reasonable suspicion to believe Bannon was committing an
offense at the time they seized and searched his person.
When reviewing a district court's decision on a motion to suppress, the appellate
court applies a bifurcated standard. The appellate court reviews the district court's factual
findings to determine whether they are supported by substantial competent evidence. The
ultimate legal conclusion is reviewed using a de novo standard. In reviewing the factual
findings, the appellate court does not reweigh the evidence or assess the credibility of
witnesses. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016) (reviewing scope
of search warrant); State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014)
(determining if emergency aid exception applied to search of apartment); State v. Gibson,
299 Kan. 207, 215-16, 322 P.3d 389 (2014) (motion to suppress inculpatory statements).
Substantial evidence refers to legal and relevant evidence that a reasonable person could
accept as being adequate to support a conclusion. State v. Talkington, 301 Kan. 453, 461,
345 P.3d 258 (2015). When the material facts relating to a search are not in dispute, the
appellate court will exercise plenary review of the district court's ruling on a motion to
suppress. State v. Cleverly, 305 Kan. 598, 604, 385 P.3d 512 (2016). The State bears the
burden of proof for a suppression motion. It must prove to the trial court the lawfulness
of the search and seizure. Cleverly, 305 Kan. at 605.
14
When the trial court has denied a motion to suppress, the moving party must
object to the introduction of that evidence at the time it was offered at trial to preserve the
issue for appeal. State v. Richard, 300 Kan. 715, 726, 333 P.3d 179 (2014). Bannon
timely objected and preserved the issue for appeal.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights assures each person's right to be secure in his or her person
and property against unreasonable searches and seizures. Any warrantless search is per se
unreasonable unless it falls within one of the recognized exceptions to the search warrant
requirement in Kansas. Neighbors, 299 Kan. at 239.
"A law enforcement officer may stop any person in a public place based upon a specific
and articulable facts raising a reasonable suspicion that such person has committed or is
about to commit a crime. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968). K.S.A 22-2402(1), the Kansas stop and frisk statute is a codification of the Fourth
Amendment search and seizure principles expressed in Terry." State v. Slater, 267 Kan.
694, 696-97, 986 P.2d 1038 (1999).
See State v. Walker, 292 Kan. 1, 5-6, 251 P.3d 618 (2011) (investigatory stop of
pedestrian).
In order for the officers' stop of Bannon to be constitutional, it had to have been
made in a public location and the officers had to have reasonable suspicion he was
committing or about to commit a crime.
Was the lobby sufficiently public?
"The curtilage concept originated at common law to extend to the area
immediately surrounding a dwelling house the same protection under the law of burglary
as was afforded the house itself." United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct.
15
1134, 94 L. Ed. 2d 326 (1987). It is well established curtilage plays a part in interpreting
the reach of the Fourth Amendment. Dunn, 480 U.S. at 300.
"The ultimate question in determining whether property is embraced by a premises'
curtilage is whether the area in question is so intimately tied to the home itself that it
should be placed under the home's umbrella of Fourth Amendment protection. Four
principle factors guide whether the area is under the 'umbrella' of the curtilage: (1) how
near the area is to the home; (2) whether any enclosures surrounding the home embrace
the area in question; (3) how the area is used; and (4) whether the resident has acted to
protect the area from observation by people passing by." State v. Patterson, 49 Kan. App.
2d 1001, Syl. ¶ 3, 319 P.3d 588 (2014), aff'd 304 Kan. 272, 371 P.3d 893 (2016).
As discussed above, Bannon's home is considered to be his apartment and not the
halls, stairways, lobby, or other parts of the building accessible to tenants and guests; the
front lobby does not qualify as curtilage to Bannon's apartment. Bannon's apartment was
on the fourth floor; the lobby was not immediately connected. While there was a lock on
the door preventing random individuals from entering the building, approximately 500
WSU resident students had access along with their guests, members of the WSU staff,
and the WSU police department. The area was used as an open pass-through space and
hangout space for anyone in the building including invited guests. It was not exclusive or
private. Finally, Bannon did not act to prevent people passing by from observing what
was occurring in the lobby. The lobby was not private and does not qualify as curtilage.
Therefore, the front lobby was sufficiently public for the officers to initiate the stop.
Terry Stop
The Stop
The United States Supreme Court defined the standard for reasonable suspicion in
Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990):
16
"Reasonable suspicion is a less demanding standard than probable cause not only in the
sense that reasonable suspicion can be established with information that is different in
quantity or content than that required to establish probable cause, but also in the sense
that reasonable suspicion can arise from information that is less reliable than that required
to show probable cause . . . Reasonable suspicion, like probable cause, is dependent upon
both the content of information possessed by police and its degree of reliability. Both
factors—quantity and quality—are considered in the 'totality of the circumstances—the
whole picture,' [citation omitted] that must be taken into account when evaluating
whether there is reasonable suspicion."
The Kansas Supreme Court adopted the White standard for reasonable suspicion in
State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998).
In this very case on appeal to the Supreme Court, the court expanded upon the
factors to be considered when reviewing whether the actions of law enforcement officers
during a Terry stop are reasonable. The court must look at each step of the Terry stop.
"Each element, the stop and the frisk, must be analyzed separately; the reasonableness of
each must be independently determined." United States v. Thomas, 863 F.2d 622, 628
(9th Cir. 1988).
Sergeant Potter and Officer Shelite had reasonable suspicion that Bannon was
violating K.S.A. 2012 Supp. 21-6302. The officers received a verified report Bannon was
always carrying a firearm, was telling people he worked for Homeland Security, and was
interrogating students on campus. This was not an anonymous report. The report came
from a currently enrolled student who also lived in Wheatshocker and was friends with
Bannon. There was sufficient reasonable suspicion Bannon was committing a crime to
justify an investigatory detention. Since we have determined the officers' initial contact
and stop of Bannon was in a public place and was reasonable, we now concentrate on the
second step: whether the frisk of his person was reasonable.
17
The Frisk
The Kansas Supreme Court in Bannon stated:
"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." Bannon, 306 Kan. at 894.
Next, our Supreme Court looked at the analysis from State v. Warren, 78 P.3d 590
(Utah 2003), where the court applied a hybrid approach to address the issue of whether
the frisk was reasonable. This approach from the previous standard now expands the old
standard of the "objective test" to include the hybrid approach as described below:
"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. . . .
18
"'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.
"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."
19
"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." Bannon, 306 Kan. at 896-97.
Applying the hybrid test adopted by our Supreme Court, we believe an objectively
reasonable officer investigating the illegal carrying of a gun would have, under the
totality of the circumstances, subjectively believed Bannon was presently armed and
dangerous. Under our prior opinion dated December 11, 2015, we found the record
insufficient to establish that the officers had a subjective belief they needed to do a pat-
down search for their safety or the safety of others in the lobby. Such testimony is always
beneficial in addressing the reasonableness of the search. But the absence of a particular
officer on the scene who will directly testify that he or she actually believed the officer or
others were in danger is no longer required. When considering the facts before us under
the hybrid test, we examine the subjective information provided by the officers in the
process of a Terry stop and the totality of the circumstances to weigh the bigger picture
surrounding the stop and frisk.
Considering the totality of the circumstances presented in this case, including the
officer's testimony, we find it was objectively reasonable for the officers to believe he
had a gun and to perform a pat-down search for their safety and the safety of others. As
the officers approached Bannon, they had the following objective knowledge from a
known informant that Bannon always carried a gun; he used Xanax and morphine; had
posed as a federal officer; and had interrogated students. When the officers contacted
Bannon, he acknowledged his name upon request and immediately denied carrying a gun.
Considering the totality of the circumstances, we conclude the search did not violate
Bannon's Fourth Amendment rights and therefore the district court did not err in denying
Bannon's motion to suppress.
Affirmed.
20