State v. Hardyway

Lockett, J.,

dissenting: I dissent from the majority’s failure to follow our rules governing how issues are raised in a petition for review and determining an issue decided contrary to the State by the Court of Appeals and not raised as error in the State’s petition for review or argued before this court. Under the circumstances the majority has (1) deprived the defendant of his right to procedural due process guaranteed under the United States and Kansas Constitutions and (2) failed to recognize that whether the evidence was legally seized is a question of law and not a factual determination to be made by the district court.

Petition For Review

Any party aggrieved by a decision of the Kansas Court of Appeals may petition the Kansas Supreme Court for discretionary review. Rule 8.03 (1997 Kan. Ct. R. Annot. 52). The petition shall contain concise statements of the following: (1) a prayer for review, clearly stating the nature of the relief sought and (2) a statement of the issues decided by the Court of Appeals for which review is sought. Issues not presented in the petition, or fairly included therein, will not be considered by the court.

Pursuant to K.S.A. 20-3018(b), the State petitioned for review, challenging the Court of Appeals’ determination of the voluntariness of Hardyway’s consent. The State did not request review of the Court of Appeals’ determination that the district court erred in finding the officers had a reasonable suspicion of drug activity at the house sufficient to stop and detain Hardyway.

In its petition for review, the State contends that (1) U.S. v. Recalde, 761 F.2d 1448 (10th Cir. 1985), relied upon by the Court of Appeals, is factually different from this case; (2) Recalde only applies to federal cases, where egregious police behavior is thought to be involved; and (3) the Court of Appeals failed to give sufficient guidance to the district court on remand. The State’s argument focuses on the Court of Appeals’ reliance on Recalde and asserts that Recalde does not require that the State prove the defendant’s consent was voluntary by a level of proof greater than a preponderance of the evidence. We granted review of that issue.

The Issue Not Presented But Decided

The district court found that the officers’ justification for the traffic stop had ceased after the officers enforced the relevant traffic law. Therefore, the district court considered the officers’ knowledge of the investigation of drug activity prior to the traffic stop and concluded that under the facts, the officers had reasonable articulable suspicion of prior drug activity and exigent circumstances sufficient for the officers to stop the vehicle and detain and question Hardyway. The district court found that the stop, detention, and Officer Fettke’s request to search Hardyway were proper. The defendant appealed.

In the appeal, Hardyway argued that the district court erred in denying the motion to suppress the evidence seized from his person. In an unpublished decision, the Court of Appeals stated:

“There is no question that the defendant was lawfully detained during the questioning and search of the driver and that he could have been detained for the purpose of investigating the seat belt violation. Thus, up to the point that the defendant got out of the car there was no Fourth Amendment violation. See U.S. v. Hill, 60 F.3d 672, 682 (10th Cir. 1995).

“After the questioning and search of the driver, the officers decided not to ticket the driver because of his excellent cooperation with them. When that decision was made, the only legitimate purpose .of detention was to warn the defendant about the seat belt violation. See U.S. v. Guzman, 864 F.2d 1512 (10th Cir. 1988). The record does not indicate when the decision was made not to ticket the driver; however, Officer Price testified that during Fettke’s search of the defendant, the driver was not free to go.”

The Court of Appeals then stated:

“Does an officer’s request that an individual submit to a search for weapons or drugs during a traffic stop for a seat belt offense violate the second step of the Terry analysis when the officer has informed the individual that he suspects the detainee is in possession of drugs and the subject matter of the police-citizen encounter focuses exclusively on the officer’s suspicion of drug activity? Under the facts of this case, we believe that such a request is the equivalent of an investigation into a matter unrelated to the initial stop that can be justified only if the events at the suspected residence amount to reasonable suspicion of drug activity.”

The Court of Appeals found that Hardy way s detention was unrelated to the traffic stop. It determined that the officer’s request that Hardyway submit to a search for weapons or drugs was an investigation into a matter unrelated to the traffic stop that could be justified only if the prior events at the suspected residence created a reasonable suspicion of drug activity and provided probable cause to search the defendant. The court rejected the district judge’s conclusion that the officer had reasonable suspicion of drug activity. The Court of Appeals determined that the district court’s findings that Hardyway had visited a “known” drug house was not supported by evidence that rose to the level of an objective, reasonable, and articulable suspicion of illegal activity that would authorize detention of Hardyway.

The Court of Appeals concluded that the trial court’s determination that Hardyway’s consent to be searched was voluntary was based upon insufficient evidence because the officer’s testimony as to the voluntary nature of Hardyway’s consent was “so devoid of details as to make a totality of the circumstances analysis impossible in light of the higher, but undefined, burden of proof placed on the State by [U.S. v.] Recalde, 761 F.2d 1448 [10th Cir. 1985].” Based on this conclusion, the Court of Appeals then found there were insufficient facts in the record on appeal to determine whether the questioning of Hardyway was extended because, prior to the traffic stop, the officers were suspicious that Hardyway had purchased narcotics. The State did not request review of this finding by the Court of Appeals in its petition for review.

The Court of Appeals set aside Hardyway’s convictions and remanded the case to the district court with directions to determine whether (1) the initial stop of the car was a pretextual or a valid stop; (2) Hardyway had been informed of his right to refuse a request that he be searched; and (3) Hardyway’s consent to be searched was voluntary “in light of the heavier burden placed on the State in accordance with the factors we have suggested and any others that are pertinent to the issue.” The Court of Appeals dedared that the district court’s analysis should include the proximity of the illegal detention to the consent, any intervening circumstances, and, particularly, the purpose and flagrancy of the officer’s unlawful conduct. Several times in its opinion, the Court of Appeals referred to a “higher burden of proof” placed upon the State to prove voluntariness of the consent.

The Court of Appeals then found that Hardyway’s detention after the stop was unrelated to the traffic infractions. The Court of Appeals determined that the officer’s request that Hardyway submit to a search for weapons or drugs was an investigation into a matter unrelated to the traffic stop that could be justified only if the prior events at the suspected residence created a reasonable suspicion of drug activity and provided probable cause to search the defendant. The court rejected the district judge’s conclusion that the officer had reasonable suspicion of drug activity. The Court of Appeals found that the district court’s findings that Hardyway had visited a “known” drug house were not supported by evidence that rose to the level of an objective, reasonable, and articulable suspicion of illegal activity that would authorize detention of Hardyway.

The Court of Appeals then concluded that the trial court’s determination that Hardyway’s consent to be searched was voluntary was based upon insufficient evidence because the officer’s testimony as to the voluntary nature of Hardyway’s consent was so “devoid of details” that a totality of the circumstances analysis was impossible in light of the “higher, but undefined, burden of proof placed on the State by Recalde, 761 F.2d 1448.”

The only issue decided by the majority was whether Hardyway’s consent was voluntary. The majority never reached the issue raised in the State’s petition for review; instead it determined an issue decided contrary to the State and not raised in its petition for review.

No Reasonable Suspicion to Search

Not only does the majority determine an issue not raised, it errs in overruling the Court of Appeals’ determination that there was no reasonable suspicion justifying a stop and search.

The police received complaints that three of four residences in a four-plex in Wichita were involved with gang activity and “mostly narcotic sales.” Officers of the Special Community Action Team (SCAT) conducted surveillance of the residences. The purpose of the surveillance was to establish probable cause to obtain a warrant for the search of the residences. In other words, the officers did not have sufficient information indicating that drugs were being sold in the apartment complex to obtain a search warrant.

While investigating whether drugs were being sold, the officers were informed by another SCAT unit that a passenger in a brown Cadillac entered one of the residences under surveillance. After a brief period of time, the passenger returned to the car. Believing the passenger, Hardyway, might have purchased narcotics, the officers left the apartment complex and located and stopped the brown Cadillac. A traffic stop is a seizure within the meaning of the Fourth Amendment. State v. McKeown, 249 Kan. 506, 510, 819 P.2d 644 (1991).

The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights protect against unreasonable searches and seizures of persons and property. The exclusionary rule prohibits introduction into evidence of (1) materials directly obtained from an illegal search or seizure and (2) evidence derived from the unlawful search or seizure. Nardone v. United States, 308 U.S. 338, 340-41, 84 L. Ed. 307, 60 S. Ct. 266 (1939); see State v. Daly, 14 Kan. App. 2d 310, 314, 789 P.2d 1203, rev. denied 246 Kan. 769 (1990). Once the officers detained Hardyway, and prior to interrogating him, the officers were required to inform him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). They failed to do so. The district judge determined that due to the exigent circumstances, the officers properly stopped and detained Hardyway.

An exception to the warrant requirement is probable cause to search coupled with exigent circumstances. See State v. Sanders, 5 Kan. App. 2d 189, 195, 614 P.2d 998 (1980). Exigent circumstances sufficient to justify a warrandess search include situations where the police reasonably determine, from the surrounding circumstances, that the evidence will be destroyed or concealed before a search warrant can be obtained. (The police were attempting to obtain evidence sufficient to obtain a search warrant for the apartment complex.) Exigent circumstances, however, do not include situations where only a mere possibility exists that evidence could be destroyed or concealed. The officers did not have sufficient evidence to obtain a search warrant for the apartment complex; therefore, they did not have sufficient evidence to stop and detain Hardyway.

Under the circumstances the officers violated Hardyway’s Fourth Amendment rights. If the consent to search is preceded by a Fourth Amendment violation, the State, in addition to proving the voluntariness of the consent, must also establish, by a preponderance of the evidence, a break in the causal connection between the illegality and the evidence thereby obtained. U. S. v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994). Consent to a search operates to remove the taint of illegality of the seizure if voluntarily given. Voluntariness is measured in part by the proximity in time of the Fourth Amendment violation to the consent, by intervening circumstances, and by the purpose and flagrancy of the police officers’ misconduct. State v. Crowder, 20 Kan. App. 2d 117, Syl. ¶ 5, 887 P.2d 698 (1994). In a hearing on a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. The Court of Appeals’ application of the factors cited in Recalde was correct.

Here, the consent to search was preceded by a Fourth Amendment violation. The Court of Appeals’ determination is correct. The district court should be reversed, the Court of Appeals affirmed, and the case remanded to the district court with directions to determine whether the defendant’s consent to search was voluntary and, particularly, whether there was a breach in the causal connection of the illegality and the evidence thereby obtained.

Allegrucci, J., joins the foregoing dissenting opinion.