State v. Cash ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,467
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
AARON DAVID CASH,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; ROBERT J. WONNELL, judge. Opinion filed March 27, 2020.
Affirmed.
Branden A. Bell, of Morgan Pilate LLC, of Kansas City, Missouri, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before GARDNER, P.J., BUSER, J., and BURGESS, S.J.
PER CURIAM: Aaron David Cash appeals the district court's denial of his motion
to suppress. Finding no error, we affirm.
Factual and Procedural Background
As a result of a 2018 traffic stop, the State charged Cash with possession of
methamphetamine, possession of diazepam, and possession of drug paraphernalia. Cash
moved to suppress the evidence seized during the traffic stop, arguing the investigating
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officer violated his Fourth Amendment right to be free from unreasonable search and
seizures.
At the hearing on the motion, the sole witness was Officer Caitlin Demarest. She
testified she saw a van driving without a registration decal. When she ran the license plate
number, dispatch replied that the plate was registered to a Chevrolet "Venture." But
Demarest mistakenly heard "Avenger," which led her to believe the license plate did not
match the van. Believing the van had committed two infractions, she stopped the van.
As she approached the van, Demarest saw a clear plastic baggie and a Crown
Royal bag hanging out of a partially opened safe on the van's floorboard. The van had no
backseat. She could not see what was inside the plastic baggie. Demarest testified that in
her training and experience, more often than not, Crown Royal bags contain drug
paraphernalia.
Cash was alone in the van. He explained that he did not own the van and told
Demarest the owner's name. He tried to find the van's registration and insurance, but had
trouble locating it. While waiting for Cash to find the registration, Demarest shined her
flashlight at the safe. She then asked Cash to open it. Cash complied. Demarest then saw
orange hypodermic needle tops and syringes inside the safe. Demarest asked Cash to
leave the safe open, but he slammed it shut, exclaiming, "I think there's a pipe in there."
Demarest then asked Cash to step out of the van and he did so. She searched the van and
found drugs and drug paraphernalia. Later, Demarest discovered Cash had an outstanding
warrant.
After the State charged Cash, he moved to suppress the evidence, arguing that
Demarest lacked reasonable suspicion of a crime as was necessary to extend the scope of
the traffic stop. The State countered that Demarest had seen the plastic baggie and the
Crown Royal bag in plain view while conducting a valid traffic stop. The State also
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argued that Demarest had probable cause to search the vehicle after she saw the contents
of the opened safe. The district court ruled:
"During that time, the Officer, from a standpoint that she had a lawful right to be,
looks into the back seat and sees this partially opened safe. From what she sees, a plastic
baggie and a purple Crown Royal bag, both of which she identified based upon training
and experience, that she associates with being drug paraphernalia, specifically that she
has on numerous occasions found drug paraphernalia in a Crown Royal bag. She then
asks the Defendant to open up the safe further, which he does, after which she sees needle
caps and syringes. He then slams down the top of the safe and says, 'I think there's is a
pipe in there.' Based upon all of that, at that point and time, the Officer had probable
cause to search that vehicle for drugs and drug paraphernalia. The Court does not find
that this stop was unlawfully extended. As the Defendant is looking through his papers
trying to locate the insurance and other things that she asked for, the Officer asked for,
the Officer simply shone a light in the back seat of the vehicle and she had an absolute
right to do. At that point she finds additional evidence, giving her reasonable suspicion to
continue that stop and extend that stop to investigate what she believes is now a drug
violation. So, I do not believe that she was limited to the traffic violation. Once she saw
those item in the safe and she saw them from a vantage point, that she had a legal right to
be.
....
"But the Court finds there was reasonable suspicion to stop the car. And that subsequent
to her stop, she developed reasonable suspicion to believe there was drug issues going on
and search the car pursuant to probable cause in the automobile exception based upon
what she saw in the vehicle and the Defendant's statement."
The district court denied Cash's motion to suppress.
After a bench trial on stipulated facts, the district court found Cash guilty of
possession of methamphetamine, possession of diazepam, and possession of drug
paraphernalia. It sentenced him to 11 months in prison then suspended that sentence and
imposed one year of probation.
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Cash timely appeals, challenging only the denial of his motion to suppress.
Did the District Court Err in Denying Cash's Motion to Suppress?
On appeal, Cash does not challenge the initial stop. Rather, Cash argues only that
Demarest unlawfully extended the traffic stop by asking him to open the safe without
having reasonable suspicion of a crime.
Standard of Review
Our standard of review for a district court's decision on a motion to suppress has
two components. We review the district court's factual findings to determine whether
they are supported by substantial competent evidence. In reviewing the factual findings,
we do not reweigh the evidence or assess the credibility of witnesses. State v. Hanke, 307
Kan. 823, 827, 415 P.3d 966 (2018). We review the ultimate legal conclusion, however,
de novo. Whether reasonable suspicion exists is a question of law. In reviewing an
officer's belief of reasonable suspicion, we determine whether the totality of the
circumstances justifies the detention. State v. Walker, 292 Kan. 1, Syl. ¶¶ 5, 6, 251 P.3d
618 (2011).
Analysis
The Fourth Amendment to the United States Constitution guarantees "[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." See also Kan. Const. Bill of Rights, § 15. A traffic
stop is considered a seizure of the driver. State v. Thompson, 284 Kan. 763, 773, 166 P.3d
1015 (2007). To comply with the Fourth Amendment, the officer conducting the stop
"must '"have a reasonable and articulable suspicion, based on fact, that the person
stopped has committed, is committing, or is about to commit a crime."'" 284 Kan. at 773.
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When, as here, a defendant claims a stop violated the Fourth Amendment, the
State bears the burden of proof to the trial court that the seizure was lawful. State v.
Schooler, 308 Kan. 333, 344, 419 P.3d 1164 (2018). To show the reasonableness of an
investigative detention, the State must show: (1) that the officer's stop was justified at its
inception, and (2) that the officer's actions during the detention were reasonably related in
scope to the circumstances justifying the initial interference. State v. Mitchell, 265 Kan.
238, 241, 960 P.2d 200 (1998). Cash challenges only the second part of this test.
Extension of Traffic Stop
Cash first argues that Demarest's inquiry about the safe was unrelated to the traffic
stop and measurably extended its length. See Rodriguez v. United States, 575 U.S. 348,
354, 135 S. Ct. 1609, 191 L. Ed. 2d 492 (2015) ("Authority for the seizure thus ends
when tasks tied to the traffic infraction are—or reasonably should have been—
completed."); State v. Jimenez, 308 Kan. 315, 326, 420 P.3d 464 (2018) ("[A]ny traffic
stop extension without reasonable suspicion or consent—by even a de minimis length of
time—amounts to an unreasonable seizure when the delay is based on anything but the
articulated components of the stop's mission."). The State does not brief this issue.
Rather, it appears to concede that the officer's questions about the safe were unrelated to
Cash's traffic infractions and extended the length of the traffic stop. We thus consider
only whether Demarest had reasonable suspicion to do so. Although consent could justify
such an extension, the State does not argue consent here.
Reasonable Suspicion
Our Supreme Court has recently summarized the governing law on reasonable
suspicion, emphasizing the totality of circumstances test:
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"Reasonable suspicion is a lower standard than probable cause, and '[w]hat is
reasonable depends on the totality of circumstances in the view of a trained law
enforcement officer.' State v. Martinez, 296 Kan. 482, 487, 293 P.3d 718 (2013). In
determining whether reasonable suspicion exists, the court must judge the officer's
conduct in light of common sense and ordinary human experience under the totality of
the circumstances. This determination is made with deference to a trained officer's 'ability
to distinguish between innocent and suspicious circumstances,' while recognizing that it
represents a 'minimum level of objective justification' and is 'considerably less than proof
of wrongdoing by a preponderance of the evidence.' Pianalto, 301 Kan. at 1011 (quoting
Martinez, 296 Kan. at 487, 293 P.3d 718). On appeal,
'[t]he reviewing court does not "pigeonhole" each factor as to
innocent or suspicious appearances, but instead determines whether the
totality of the circumstances justifies the detention. State v. DeMarco,
263 Kan. 727, 734-35, 952 P.2d 1276 (1998). The relevant inquiry is not
whether particular conduct is "innocent" or "guilty," but whether a
sufficient degree of suspicion attaches to particular types of noncriminal
acts. United States v. Sokolow, 490 U.S. 1, 10, 109 S .Ct. 1581, 104 L.
Ed. 2d 1 (1989). The totality of the circumstances standard precludes a
"divide-and-conquer analysis" under which factors that are "readily
susceptible to an innocent explanation [are] entitled to 'no weight.'"
United States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 151 L. Ed. 2d
740 (2002).' State v. Coleman, 292 Kan. 813, 817-18, 257 P.3d 320
(2011).
See also State v. Chapman, 305 Kan. 365, 371, 381 P.3d 458 (2016)." State v. Sharp, 305
Kan. 1076, 1081-82, 390 P.3d 542 (2017).
Our Supreme Court's recent reasonable suspicion cases denounce the "divide-and-
conquer" analysis and emphasize that "[t]he totality of the circumstances standard does
not envision a reviewing court pigeonholing each factor as to innocent or suspicious
appearances." Schooler, 308 Kan. at 352. See State v. Lowery, 308 Kan. 359, 366-67, 420
P.3d 456 (2018).
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With that legal standard in mind, we examine the facts to see whether Demarest
had a reasonable suspicion of drug activity justifying the extension. At the suppression
hearing, Demarest testified that she saw a plastic baggie and a Crown Royal bag hanging
out of a safe: "I observed [the safe] partially open and what I believed to be drug
paraphernalia partially outside of the safe." When asked whether the Crown Royal bag
was important, she replied, "Whenever I observe that, there's drug paraphernalia inside of
it."
"Q. Have you seen that before on the streets?
"A. Multiple times.
"Q. Multiple times. That's based on training and experience?
"A. Yes.
"Q. So odds are, it's not a bottle of Crown Royal in its purple felt bag inside the safe?
"A. Correct."
On cross-examination, Demarest confirmed that testimony:
"Q. Was it your testimony that a purple felt bag is an indication of drug
paraphernalia? Was that your testimony?
"A. My testimony was that more often than not, when I've located
Crown Royal bags, I've located drug paraphernalia inside of them."
Based on that testimony, the district court found Demarest had reasonable suspicion to
extend the stop.
Cash asserts that these facts were not enough to warrant reasonable suspicion of a
crime. True, "there are a multitude of innocent uses for clear plastic bags and the
presence of such a bag is not suspicious, at least by itself." State v. Jones, 300 Kan. 630,
648, 333 P.3d 886 (2014). Similarly, a panel of this court has found that a Crown Royal
bag, by itself, is not suspicious. State v. Armstrong, No. 93,941, 2006 WL 1668767, at *6
(Kan. App. 2006) (unpublished opinion). But we do not view each item separately.
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Instead, we view them collectively, as did the officer. Nor do we ignore the presence of
the safe in the back of the van. We decline Cash's invitation to use the prohibited divide-
and-conquer analysis.
The totality of the circumstances justified Cash's detention. Demarest observed a
partially opened safe in the back of a van which had no backseats. A plastic baggie and
Crown Royal bag were hanging out of the safe. Demarest testified that in her training and
experience a Crown Royal bag "more often than not" contains drug paraphernalia. The
district court found this testimony credible, and we do the same. See Hanke, 307 Kan. at
827 (stating appellate courts does not reweigh the evidence or assess the credibility of
witnesses); see also Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L.
Ed. 2d 911 (1996) (reviewing court must give "due weight" to factual inferences drawn
by resident judges and local law enforcement officers).
The State showed that Demarest had the minimum level of objective justification
required to support a reasonable suspicion. See City of Atwood v. Pianalto, 301 Kan.
1008, 1011, 350 P.3d 1048 (2015). Because Demarest had reasonable suspicion of drug
activity, which warranted an extension of the traffic stop, the district court properly
denied Cash's motion to suppress.
Affirmed.
***
BUSER, J., dissenting: I dissent. I would conclude that a Crown Royal bag and
small plastic baggy hanging out of a partially opened safe in a vehicle did not constitute
reasonable suspicion for Officer Caitlin Demarest to extend the traffic stop to investigate
a possible drug offense.
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At the outset, I agree that my colleagues have correctly summarized the governing
Fourth Amendment law regarding when a law enforcement officer may extend a traffic
stop based on reasonable suspicion of a criminal offense. Slip op. at 4. I disagree,
however, with the majority's legal conclusion that under these totality of circumstances
Officer Demarest had articulable facts to constitute reasonable suspicion that the Crown
Royal bag contained drug paraphernalia. Slip op. at 7-8.
The record does not support that Officer Demarest had such training and
experience in the detection of illegal drugs and drug paraphernalia to rely on her opinion
that an ordinary cloth bag used to package liquor or a small plastic baggy necessarily
contain drug contraband. Officer Demarest had four-and-a-half years' experience as a
Lenexa patrol officer. Although the officer testified that she had training in drug
investigations, that training occurred at the police academy she attended prior to being
commissioned as a police officer. The nature, duration, and extent of that training is
unknown. As to her experience with finding drug paraphernalia in Crown Royal bags,
Officer Demarest simply testified that she had witnessed this "[m]ultiple times" and
"more often than not, when I've located Crown Royal bags, I've located drug
paraphernalia inside of them." We are left to speculate how many times constitute
"multiple" times and under what circumstances the officer made this association.
Of course, an appellate court's evaluation of reasonable suspicion is made "'with
deference to a trained law enforcement officer's ability to distinguish between innocent
and suspicious circumstances.' [Citations omitted.]" State v. Moore, 283 Kan. 344, 359,
154 P.3d 1 (2007). In Moore, for example, our Supreme Court noted that the district court
"took judicial notice that Jimerson [the officer who extended the traffic stop to investigate
illegal drug activity] instructs other law enforcement personnel on drug interdiction
methods. It acknowledged that Jimerson has an 'extreme amount of experience in
interdiction of drug offenses' on highways in the State." 283 Kan. at 359. Based on these
findings our Supreme Court gave "appropriate deference to the opinions of a particular
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law enforcement officer on the scene who, with thousands of traffic stops, is highly
experienced in roadside searches and seizures and determination of reasonable
suspicion." 283 Kan. at 360.
Officer Demarest's training and experience pales in comparison to Trooper
Jimerson's expert qualifications. Based on Moore and my review of the limited record, I
am not persuaded that Officer Demarest had sufficient training and experience for the
district court to rely on her opinion regarding the illicit use of Crown Royal bags.
Moreover, as the majority candidly acknowledges, our Supreme Court and our
Court of Appeals in separate cases have questioned the basis for a law enforcement
officer to discern incriminating qualities in otherwise innocent bags or baggies. State v.
Jones, 300 Kan. 630, 648, 333 P.3d 886 (2014) ("[T]here are a multitude of innocent uses
for clear plastic bags and the presence of such a bag is not suspicious, at least by itself.");
State v. Armstrong, No. 93,941, 2006 WL 1668767, at *6 (Kan. App. 2006) (unpublished
opinion) (Crown Royal bag, by itself, is not suspicious.).
Officer Demarest's reasonable suspicion was primarily based on the Crown Royal
bag. The officer did not testify that she collectively considered the Crown Royal bag and
small plastic baggy found partially outside the safe that was inside Cash's vehicle to be
suspicious under the totality of the circumstances. We simply do not know what effect, if
any, the presence of the safe in the vehicle had on Officer Demarest's determination of
reasonable suspicion. In short, we are left with insufficient evidence of reasonable
suspicion to justify extending the traffic stop to investigate a possible drug offense.
All things considered, I believe our Supreme Court said it best:
"We do not advocate a total, or substantial, deference to law enforcement's opinion
concerning the presence of reasonable suspicion. The officers may possess nothing more
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than an 'inchoate and unparticularized suspicion' or 'hunch' of criminal activity. Such a
level of deference would be an abdication of our role to make a de novo determination of
reasonable suspicion. [Citation omitted.]" 283 Kan. at 359-60.
I would reverse and remand with directions to suppress the evidence seized from
Cash's vehicle.
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