State v. Bates

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 122,128
STATE OF KANSAS,
Appellee,
v.
CARLOS R. BATES,
Appellant.
SYLLABUS BY THE COURT
1.
The Fourth Amendment to the United States Constitution protects the right of an
individual to be secure and not subject to unreasonable searches and seizures by the
government. Section 15 of the Kansas Constitution Bill of Rights offers the same
protections. Under the Fourth Amendment and section 15, any warrantless search or
seizure is presumptively unreasonable unless it falls within one of the few established and
well-delineated exceptions to the warrant requirement.
2.
One exception to the warrant requirement of the Fourth Amendment to the United
States Constitution is an investigatory detention under Terry v. Ohio, 392 U.S. 1, 88 S.
Ct. 1868, 20 L. Ed. 2d 889 (1968). This exception applies to brief investigatory stops of
persons or vehicles that fall short of traditional arrest. For this exception to apply, an
investigatory stop must be justified by some objective manifestation that the person
stopped is, or is about to be, engaged in criminal activity.
1
3.
The reasonable suspicion standard requires consideration of the totality of the
circumstances—the whole picture. Based on that whole picture the detaining officers
must have a particularized and objective basis for suspecting the particular person
stopped of criminal activity. A mere hunch is not enough to be a reasonable suspicion.
But the particularized basis need not rise to the level of probable cause, which is the
reasonable belief that a specific crime has been committed and that the defendant
committed the crime.
4.
Appellate courts apply a well-settled, bifurcated standard of review when
reviewing a district court ruling on a motion to suppress. Under the first part of the
standard, an appellate court reviews a district court's factual findings to determine
whether they are supported by substantial competent evidence. Substantial competent
evidence is defined as such legal and relevant evidence as a reasonable person might
regard as sufficient to support a conclusion. Appellate courts do not reweigh the evidence
or assess credibility of witnesses when assessing the district court's findings. Under the
second part of the bifurcated standard of review, appellate courts review de novo the
district court's conclusion of law about whether a reasonable suspicion justifies the
investigatory detention.
Review of the judgment of the Court of Appeals in an unpublished opinion filed January 29,
2021. Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed July 29, 2022.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.
Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.
2
Julie A. Koon, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, C.J.: This appeal arises after police detained Carlos R. Bates while he
sat in a minivan in an alleyway. The detention followed a series of events that began with
a late-night 911 call reporting an unwelcomed knocking on the door of a home. An
officer quickly arrived, and an occupied minivan parked near the home drove away.
Another officer then spotted the minivan in a nearby alleyway and turned on emergency
lights and blocked the minivan from leaving. When both officers reached the alleyway,
they approached the vehicle. Smelling marijuana, the officers conducted a search that led
to the State charging Bates with possession of drugs and drug paraphernalia with the
intent to distribute. Bates sought to suppress evidence obtained during the search because
he argued the seizure of the minivan violated his right to be free from unreasonable
searches and seizures guaranteed by the Fourth Amendment to the United States
Constitution and section 15 of the Kansas Constitution Bill of Rights.
The district court judge denied Bates' motion to suppress, concluding the detention
was reasonable and justified under the public safety exception to the warrant requirement.
Bates appealed, and the Court of Appeals affirmed the denial of the motion to suppress
after holding the district court judge correctly denied the motion but used the wrong
rationale for doing so. The Court of Appeals rejected the judge's reliance on the public
safety exception and instead held the officers held a reasonable suspicion of criminal
activity and legitimately conducted a valid investigatory detention under Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See State v. Bates, No. 122,128,
2021 WL 301896, at *3-4 (Kan. App. 2021) (unpublished opinion).
3
Upon review, we affirm the Court of Appeals and the district court's denial of
Bates' motion to suppress. We hold, as did the Court of Appeals, that the officers had a
reasonable suspicion of criminal activity that justified an investigatory detention.
FACTUAL AND PROCEDURAL BACKGROUND
A brief discussion of the procedural background helps frame the issue before us,
which is narrower than the issue presented to either the district court or the Court of
Appeals. We begin by explaining the procedure that leads us to a limited review of the
district court and Court of Appeals decisions.
We first note that we do not have before us the question of whether a police officer
seized the minivan parked in the alleyway when he pulled behind it and activated his
emergency lights. The parties litigated that question in the district court, and the district
court determined a seizure occurred. On appeal, the parties do not dispute that ruling.
Likewise, no party raises issues about the legality of the search of the minivan if we
determine its seizure was valid. As a result, the single overarching issue is whether the
officers' seizure of the minivan violated the Fourth Amendment and section 15.
The trial and appellate process have further narrowed the scope of that single
issue. To explain, it helps to keep in mind that the Fourth Amendment protects the right
of an individual to be secure and not subject to unreasonable searches and seizures by the
government. State v. Ryce, 303 Kan. 899, 909, 368 P.3d 342 (2016). Section 15 of the
Kansas Constitution Bill of Rights offers the same protections. Ryce, 303 Kan. at 909;
State v. Williams, 297 Kan. 370, 376, 300 P.3d 1072 (2013). Under the Fourth
Amendment and section 15, any warrantless search or seizure is presumptively
unreasonable unless it falls within one of the few established and well-delineated
encounters recognized as a warrant exception. Ryce, 303 Kan. at 909.
4
Of the possible exceptions, the district court judge considered two: whether the
stop was (1) a valid investigatory detention, also known as a Terry stop (and concluded it
was not) or (2) a valid public safety stop (and concluded it was). See State v. Cleverly,
305 Kan. 598, 605, 385 P.3d 512 (2016) (listing some warrant exceptions, including
investigative detentions and public safety stops). On appeal, the Court of Appeals
considered the same two exceptions but reached the opposite conclusions, holding the
detention was not a valid safety stop but was a valid investigatory detention. Bates, 2021
WL 301896, at *3-4.
Bates petitioned for review and asks us to reverse the Court of Appeals' holding
that the stop was a valid investigatory detention. He does not seek review of the ruling on
which he prevailed before the Court of Appeals—that is, that the detention was not a
valid public safety stop. It was the State that was adversely affected by that ruling. The
State thus had the option of filing a cross-petition or conditional cross-petition for review
to ask us to review that portion of the Court of Appeals decision. See Supreme Court
Rule 8.03(c)(3) (2022 Kan. S. Ct. R. at 57) ("The purpose of a cross-petition is to seek
review of specific holdings the Court of Appeals decided adversely to the cross-
petitioner."). But it did not, and the Court of Appeals' holding that the detention was not a
valid public safety stop is thus settled in Bates' favor. See State v. Taylor, 314 Kan. 166,
168, 496 P.3d 526 (2021).
This narrowing of the issues means we must determine only whether the officers
conducted a valid investigatory detention. The district court judge held they did not, and
Bates now argues we should defer to both the judge's findings of fact and his conclusion
of law on that point. He also argues the Court of Appeals failed to analyze whether the
judge's determination of no reasonable suspicion was based on substantial competent
5
evidence (he contends it was). He also argues the Court of Appeals panel made factual
findings to support its conclusion.
Given Bates' contention that the panel engaged in fact-finding, we set out in full
the district court judge's findings of fact, omitting his citations to the record:
"1. On September 1, 2017, Officer Gilmer was dispatched to a 'suspicious character'
call at 1906 N. Hood, Wichita, Sedgwick County, Kansas.
"2. The suspicious character was reported to be knocking on the front door of the
residence at that address.
"3. The report was made by a 9-1-1 call.
"4. Officer Gilmer had no information about the description of the person or people
knocking on the door or any involved vehicles.
"5. Officer Gilmer arrived in the area of 1906 N. Hood shortly after the 1:27 a.m.
9-1-1 call.
"6. Officer Gilmer observed a red mini-van parked on the street in front of or near
the house at 1906 Hood.
"7. The red mini-van appeared to be running and the lights were on.
"8. Officer Gilmer saw no one outside the vehicle.
"9. It was dark outside.
"10. Officer Gilmer did not have his emergency overhead lights or sirens on when he
arrived in the area of 1906 N. Hood.
"11. Officer Gilmer approached the vehicle on foot and shined his flashlight onto the
vehicle. He did not recall having used his police car's overhead flashing lights up to this
point.
6
"12. Officer Gilmer was wearing a green polo shirt and tan pants, and a badged vest.
"13. The vehicle drove off when Officer Gilmer walked up to the vehicle and shined
his flashlight on it.
"14. Officer Gilmer did not announce himself as 'police' or say 'stop' when he
approached the vehicle.
"15. Officer Gilmer communicated to another police officer to stop the vehicle.
"16. Officer Gilmer knew the neighborhood to have 'a lot' of larceny to autos, car
break-ins, and residential burglaries.
"17. Officer Oliphant knew the area to have 'a lot of vandalisms . . . lot of burglaries
. . . lot of gang activity.'
"18. Officer Gilmer did not make contact with the 9-1-1 caller or the home prior to
approaching the vehicle of interest at either 1906 N. Hood or in the alley.
"19. Officer Gilmer 'heard' Officer Oliphant stop the vehicle nearby and drove to that
location.
"20. Upon Officer Gilmer's arrival about a minute later he found that the same vehicle
which had driven away was now parked in an alleyway with its lights off, about one and
a half blocks away from where he first saw it.
"21. When Officer Gilmer arrived at the alley, Officer Oliphant's police car
emergency overhead lights were on.
"22. Officer Gilmer walked up to the passenger side of the vehicle, made contact with
the passenger, and noted an odor of marijuana coming from the vehicle.
"23. The passenger identified himself as Brown.
"24. Officer Gilmer has experienced cases of people knocking on a front door and
then breaking into the rear of the home if no one answers the door.
7
"25. Officer Oliphant did not see people walking outside when he arrived in the area
of 1906 N. Hood, prior to the vehicle driving away from Officer Gilmer.
"26. Officer Oliphant's emergency equipment was not activated when he was
approaching 1906 N. Hood and he was not trying to stop the vehicle at that time.
"27. Officer Oliphant had a suspicion that the vehicle was involved in the door
knocking.
"28. Officer Oliphant found the vehicle parked in an overgrown alleyway with its
lights off.
"29. Officer Oliphant first drove by the parked car, realized he had missed something,
then backed up, and activated his emergency equipment. The vehicle of interest had
already stopped, parked, and had its headlights turned off when Officer Oliphant turned
on his emergency equipment and parked in the street near the alley entrance.
"30. After Officer Gilmer arrived, both officers walked up to the vehicle.
"31. Officer Oliphant found it suspicious to be parked in an alley right off the street
completely blacked out.
"32. Other than the occupants of the vehicle, from the time of the arrival of Officers
Oliphant and Gilmer in response to the 9-1-1 dispatch and the vehicle 'stop,' they did not
observe any other people in the area near 1906 N. Hood.
"33. Because of the location of the vehicle near 1906 N. Hood, the occupants of the
vehicle could have been involved in the door knocking, or they could have been
witnesses to it.
"34. At the beginning of the encounter between the officers and the vehicle in the
alleyway, both officers smelled the odor of marijuana coming out of the car.
"35. The officers did not think that knocking on the door of the residence was a
crime."
8
After making those findings, the district court judge concluded: "Officers
Oliphant and Gilmer could not have conducted a Terry stop because, according to their
testimony, they did not believe a crime had been committed, was being committed, or
was about to be committed." But the judge also concluded: "They did, however, conduct
a reasonable and acceptable community caretaking public safety inquiry, even if they do
not refer to it as such." The judge thus denied Bates' motion to suppress.
The case proceeded to a bench trial on stipulated facts. The judge convicted Bates
of possession of cocaine with intent to distribute and possession of drug paraphernalia
with intent to distribute. Bates appealed.
Before the Court of Appeals, Bates argued the district court relied on facts not in
the record to support the public safety justification for the stop because the officers did
not testify about concern for the welfare of the minivan's occupants or anyone else. The
State disagreed but also suggested an alternative rationale to the Court of Appeals by
renewing the argument it had made in district court that the stop was a valid investigatory
detention.
The Court of Appeals panel agreed with Bates' arguments about the district court's
conclusion the officers conducted a valid public safety stop. It held the stop did not fall
within the public safety exception because the officers testified concern for the well-
being of the minivan's occupants did not motivate their actions. Bates, 2021 WL 301896,
at *3. But the panel affirmed the district court as right for the wrong reason because the
facts in the record supported a finding that the officers had reasonable suspicion to detain
the occupants of the minivan. 2021 WL 301896, at *4. The panel concluded that
reasonable inferences derived from the facts gave "rise to a reasonable suspicion that
criminal activity was afoot." 2021 WL 301896, at *4. The panel listed seven facts
supporting a conclusion that officers could reasonably suspect criminal activity:
9
"Officers Gilmer and Oliphant relied on seven facts when stopping the van: (1)
They responded to a report of someone knocking on the front door of a caller's residence;
(2) they received the report early in the morning; (3) burglaries were common in the
neighborhood; (4) Officer Gilmer stated burglars will sometimes knock on the front door
to determine whether someone is home; (5) upon arriving, the officers saw a van parked
outside the residence with its lights on; (6) the van drove away as Officer Gilmer
approached it; and (7) Officer Oliphant found the van parked with its lights off in an alley
1 1/2 blocks away." Bates, 2021 WL 301896, at *4.
The panel included two other statements about facts that Bates contends were fact-
finding by the appellate court. First, it discussed the reliability of the information about
the 911 call:
"While the officers did not observe the knock, this information was reliable
because the caller, by providing the house's address, could be identified and held to
account. See State v. Chapman, 305 Kan. 365, 373, 381 P.3d 458 (2016) (discussing
reliability of tip based on whether identity of provider is disclosed, could be ascertained,
or could not be discovered). The caller indicated he did not expect a visitor. Based on the
van's location and its lights being on, the officers could reasonably conclude one of the
van's occupants was the door-knocker." 2021 WL 301896, at *4.
Second, he argues the following inference drawn by the Court of Appeals conflicts
with substantial competent evidence:
"Officer Gilmer's statement describing how some burglars operate tied the
knocking to potential criminal activity. The time of the call and the prior illegal activity
in the neighborhood strengthened that connection. And after Officer Gilmer attempted to
approach the van, it drove away and parked with its lights off in a nearby alley,
suggesting its occupants did not want to interact with police." 2021 WL 301896, at *4.
10
After drawing that inference, the Court of Appeals concluded:
"Individually, these circumstances may simply appear odd. See Chapman, 305
Kan. at 372 (report of suspicious but not criminal activity cannot form reasonable
suspicion). But in light of Officer Gilmer's description of burglaries, these circumstances
become sufficiently suspicious to suggest a crime was going to be committed, warranting
an investigatory detention. See State v. Kirby, 12 Kan. App. 2d 346, 353, 744 P.2d 146(1987) (noting 'location, time of day, previous reports of crime in the area, and furtive
actions of suspects' may support reasonable suspicion but time of day and crime in the
area cannot justify a stop by themselves), disapproved of on other grounds by State v.
Jefferson, 297 Kan. 1151, 310 P.3d 331 (2013).
"We conclude that, under the totality of the circumstances, the officers'
investigatory detention of the van was supported by reasonable suspicion that the
occupants intended to commit a burglary." 2021 WL 301896, at *4.
Noting that Bates did not challenge the officers' subsequent search of the minivan,
the Court of Appeals affirmed the district court decision to deny the motion to suppress.
2021 WL 301896, at *4.
Bates timely petitioned for review, which this court granted. This court's
jurisdiction is proper under K.S.A. 20-3018(b) (providing for petitions for review of
Court of Appeals decisions), and K.S.A. 60-2101(b) (Supreme Court has jurisdiction to
review Court of Appeals decisions upon petition for review).
ANALYSIS
As we have discussed, the only exception to the warrant requirement that the
parties have preserved for our consideration is the one allowing an investigatory
detention, also known as a Terry stop. This exception applies to "brief investigatory stops
11
of persons or vehicles that fall short of traditional arrest." United States v. Arvizu, 534
U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). Recognizing that the "'balance
between the public interest and the individual's right to personal security,' . . . tilts in
favor of a standard less than probable cause" in a brief investigative stop, "the Fourth
Amendment is satisfied if the officer's action is supported by reasonable suspicion to
believe that criminal activity '"may be afoot."'" 534 U.S. at 273 (quoting United States v.
Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 104 L. Ed. 2d 1 [1989]); see Terry, 392 U.S. at
30. For this exception to apply, "[a]n investigatory stop must be justified by some
objective manifestation that the person stopped is, or is about to be, engaged in criminal
activity." United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621(1981).
The Kansas Legislature has codified this exception in K.S.A. 22-2402: "Without
making an arrest, a law enforcement officer may stop any person in a public place whom
such officer reasonably suspects is committing, has committed or is about to commit a
crime and may demand of the name, address of such suspect and an explanation of such
suspect's actions." See State v. Doelz, 309 Kan. 133, 139, 432 P.3d 669 (2019)
("'Investigatory detentions are generally permitted under the Fourth Amendment to the
United States Constitution and K.S.A. 22-2402 if "an objective officer would have a
reasonable and articulable suspicion that the detainee committed, is about to commit, or
is committing a crime."'").
The reasonable suspicion standard requires consideration of "the totality of the
circumstances—the whole picture . . . . Based upon that whole picture the detaining
officers must have a particularized and objective basis for suspecting the particular
person stopped of criminal activity." Cortez, 449 U.S. at 417-18. A mere "hunch" is not
enough to be a reasonable suspicion. Terry, 392 U.S. at 27. But the particularized basis
need not rise to the level of probable cause, Navarette v. California, 572 U.S. 393, 397,
12
134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014), which "'"is the reasonable belief that a
specific crime has been committed and that the defendant committed the crime."'" State v.
Fewell, 286 Kan. 370, 377, 184 P.3d 903 (2008).
It is these legal principles that define our analysis of the district court's denial of
Bates' motion to suppress. A well-settled, bifurcated standard of review applies to that
analysis. Under the first part of the standard, an appellate court reviews a district court's
factual findings to determine whether they are supported by substantial competent
evidence. State v. Scheuerman, 314 Kan. 583, 593, 502 P.3d 502 (2022). Substantial
competent evidence is defined as such legal and relevant evidence as a reasonable person
might regard as sufficient to support a conclusion. State v. Queen, 313 Kan. 12, 20,
482 P.3d 1117 (2021). Appellate courts do not reweigh the evidence or assess credibility
of witnesses when assessing the district court's findings. Scheuerman, 314 Kan. at 593.
Under the second part of the bifurcated standard of review, appellate courts review de
novo the district court's conclusion of law about whether a reasonable suspicion justifies
the investigatory detention. 314 Kan. at 593.
Application of this bifurcated standard is at the heart of the parties' arguments.
Bates asserts we must defer to the district court findings and to any conclusion of law
supported by that substantial competent evidence. We agree only in part. As Bates
suggests, if substantial competent evidence supports the findings, we grant deference to
the district court to the extent that we do not reweigh evidence or judge the credibility.
Rather, we accept the judge's factual findings when substantial evidence supports them.
See 314 Kan. at 593. But we disagree with his suggestion that our de novo review
requires us to defer to the district court's legal conclusion drawn from those facts. De
novo review means we exercise unlimited review without deference to the legal
conclusions of the district court. State v. Sanchez-Loredo, 294 Kan. 50, 54, 272 P.3d 34(2012). In other words, "[t]he ultimate determination of the suppression of evidence is a
13
legal question requiring independent appellate review." State v. Moore, 283 Kan. 344,
349, 154 P.3d 1 (2007). Our role is to review the judge's findings of fact for substantial
competent evidence and then independently apply those facts to determine whether the
officers had a reasonable suspicion.
Neither Bates nor the State suggests any one of the district court judge's factual
findings lacked the support of substantial competent evidence. Bates' quarrel thus is not
that the Court of Appeals panel failed to fact check the district court findings. Instead,
Bates faults the panel for failing to recognize that substantial competent evidence
supports the judge's legal conclusion that the officers lacked reasonable suspicion. He
also contends the panel should have deferred to the judge's conclusion because it had that
factual support. But, again, that ignores de novo review.
Ironically, if we applied the standard Bates' proposes, our analysis would not lead
to the outcome he seeks. The district court judge concluded: "Officers Oliphant and
Gilmer could not have conducted a Terry stop because, according to their testimony, they
did not believe a crime had been committed, was being committed, or was about to be
committed." Our review of the record confirms they testified it was not a crime to ring a
doorbell, even at 1:27 a.m., and that it was not a crime to park in an alleyway with your
lights off. But we do not find support for a conclusion they did not believe the minivan
occupants were not about to commit a crime. In fact, the officers often described Bates'
conduct as suspicious, and they tied that suspicious behavior to patterns of criminal
conduct.
Bates counters the officers' testimony about their suspicions by repeating the
judge's conclusion that the officers admitted they saw no crimes committed, by
examining each factor identified in the testimony individually, by suggesting each relates
to a lawful activity, and by contending the actions are subject to innocent explanations.
14
These arguments attempt to persuade us to apply a probable cause standard by requiring
an officer to articulate a belief a crime was committed. They also ignore the totality of the
circumstances, especially those circumstances that can be innocently explained. Terry
itself instructs that these arguments are incorrect.
In Terry, an officer watched men repeatedly walk back and forth, looking in a
store window and talking to each other. The United States Supreme Court recognized that
each of the acts was "perhaps innocent in itself," but the totality of the circumstances
"warranted further investigation." 392 U.S. at 22. Those suspicious circumstances
justified the officer's action of approaching the men and asking questions, even though he
had not seen a crime committed.
Likewise, in Sokolow, 490 U.S. 1, the Court observed that individually the facts
forming the proffered suspicion did not reveal a crime and were innocent when
considered individually. The defendant had traveled under an alias, followed an evasive
path through an airport, paid cash for plane tickets, and traveled from Honolulu to Miami
where he stayed for about 48 hours. Despite the innocent nature of each act, the Court
held that "taken together they amount to reasonable suspicion." 490 U.S. at 9. The Court
observed that "'the relevant inquiry is not whether particular conduct is "innocent" or
"guilty," but the degree of suspicion that attaches to particular types of noncriminal acts.'"
490 U.S. at 10 (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct. 2317, 76 L.
Ed. 2d 527 [1983]).
In yet another illustrative case, Arvizu, 534 U.S. 266, the Court reversed a Court of
Appeals conclusion that reasonable suspicion did not justify a border patrol agent from
stopping a minivan because most of the 10 factors identified by the district court as part
of the totality of circumstances were "readily susceptible to an innocent explanation [and
thus] entitled to 'no weight.'" 534 U.S. at 274 (quoting United States v. Arvizu, 232 F.3d
151241, 1249-51 [9th Cir. 2000], rev'd and remanded 534 U.S. 266 [2002]). The Court
rejected "this sort of divide-and-conquer analysis," noting: "The court's evaluation and
rejection of seven of the listed factors in isolation from each other does not take into
account the 'totality of the circumstances,' as our cases have understood that phrase." 534
U.S. at 274.
Our caselaw mirrors these holdings. See State v. Martinez, 296 Kan. 482, 487,
293 P.3d 718 (2013) ("'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 justify the detention."); Moore,
283 Kan. at 354 (same); State v. DeMarco, 263 Kan. 727, 734, 952 P.2d 1276 (1998)
(same).
Here, contrary to the instruction of these cases, the district court judge focused on
the fact the officers testified they observed no crime being committed. And while neither
Officer Ryan Oliphant nor Officer Joshua Gilmer clearly stated that he formed a
reasonable suspicion a crime had been or was about to be committed, they noted the
behaviors they found suspicious and identified other factors that contribute to a
reasonable suspicion. Their testimony conveys their belief they had a reasonable
suspicion to investigate the actions of those in the minivan. But the judge did not
discuss the totality of the circumstances that include:
• Both officers repeatedly referred to "suspicious" conduct by labeling the initial
call as a "suspicious character call" because, in Officer Gilmer's words, having
someone knock on a door at 1:27 in the morning made it suspicious. The district
court judge agreed:
16
"Based on the information available to the officers, they knew that a dwelling
occupant had an unknown and unwanted person at his door. The door knocking was
at such a time that it would be reasonable to conclude that something was wrong—
regardless of whether it involved crime—and that a citizen of the community wanted
the police to deal with it. . . . Under the circumstances of this case, it was reasonable
for both the 9-1-1 caller and the officers to conclude that something was amiss that
should be looked into."
• The judge also found in his findings of fact 16 and 17 that both officers were
aware of there being "a lot" of residential burglaries, larceny to autos, car
break-ins, vandalism, and gang activity in the area. And on cross Officer
Gilmer explained this pattern was occurring in the subject neighborhood
around the time of this incident.
• As the judge found in finding 24, "Officer Gilmer has experienced cases of
people knocking on a front door and then breaking into the rear of the home if
no one answers the door." They had been involved with burglaries where the
burglars had knocked to see if anyone was home.
• The judge found in finding 5 that Officer Gilmer arrived "shortly" after the
911 call. And in the text of his decision, the judge noted: "The responding
officers saw only one possible source of the door knocking: the occupants of
the vehicle." Then, in finding 27, the judge referred to Officer Oliphant having
a "suspicion" the minivan was tied to the door knocking.
• When the minivan drove away, the officers searched for it and found it nearby,
parked without its lights on in an overgrown alleyway that Officer Oliphant
described as one "that's not traveled very much . . . and is mostly grass."
17
According to finding 31, "Officer Oliphant found it suspicious to be parked in
an alley right off the street completely blacked out."
The Court of Appeals panel also discussed the reliability of the information
relayed in the 911 call. It also noted: "And after Officer Gilmer attempted to approach
the van, it drove away and parked with its lights off in a nearby alley, suggesting its
occupants did not want to interact with police." 2021 WL 301896, at *4.
Bates argues both these conclusions required fact-finding by the panel. While it is
true the district court judge did not explicitly discuss the reliability of the 911 call, he
implicitly did so when he concluded that the officers "knew that a dwelling occupant had
an unknown and unwanted person at his door." But we agree the panel engaged in fact-
finding when it inferred the minivan occupants did not want to interact with police. The
district court never found that the occupants knew police approached the minivan. And
such a conclusion is not obvious from the record. Officer Gilmer explained that he parked
his patrol car around the corner, it was dark when he walked toward the minivan with
only his flashlight on, and he was wearing "soft clothes" that did not readily identify him
as an officer. Under those circumstances, we agree with Bates that driving away was not
on its own suspicious. But the circumstance of driving away and traveling only about a
block and a half to park in an alleyway and turning off the minivan's lights helps explain
Officer Oliphant's conclusion the behavior was suspicious.
We hold the totality of these circumstances provided "a 'particularized and
objective basis' for suspecting legal wrongdoing"—in other words, a reasonable suspicion
sufficient to justify an investigative detention. Arvizu, 534 U.S. at 273.
18
In doing so, we distinguish the totality of the circumstances from two somewhat
analogous cases: State v. Andrade-Reyes, 309 Kan. 1048, 442 P.3d 111 (2019), and
Schreiner v. Hodge, 315 Kan. 25, 504 P.3d 410 (2022).
In Andrade-Reyes, police approached two people sitting in a vehicle legally parked
in an apartment complex parking lot late at night. The passenger seemed nervous and
moved his hands. After holding that the initial encounter was a seizure and not a
voluntary encounter, this court held the officers lacked reasonable suspicion of any
criminal activity as required by Terry. 309 Kan. at 1058. As here, police did not observe
any illegal activity. What is more, as here, the State said the fact that it was late at night
in a high crime area was one of the factors supporting reasonable suspicion. 309 Kan. at
1058-59.
In Schreiner v. Hodge, the plaintiff sought monetary damages under various tort
theories for an alleged wrongful detention. The detention happened after the plaintiff
legally parked his vehicle on a residential street and walked into a wooded, public area, in
the middle of the day. Someone called police and reported the unoccupied vehicle as
suspicious. When the plaintiff returned to his vehicle, an officer detained him and
prevented him from leaving. The officer observed nothing that suggested the vehicle had
been involved in a crime, nor did he observe the plaintiff committing any crimes. He did
consider hypotheticals involving potential criminal activity and knew other crimes had
taken place in the area. Under the totality of the circumstances, we concluded the officer
had no reasonable suspicion of criminal activity. 315 Kan. at 35.
A side-by-side comparison of this case with Andrade-Reyes and Schreiner v.
Hodge highlights the fact-specific nature of determining reasonable suspicion. Just slight
variations in circumstances can create reasonable suspicion even though somewhat
analogous situations fail to rise to that standard. See Arvizu, 534 U.S. at 274-75 (noting
19
Court has "deliberately avoided reducing [the reasonable suspicion standard] to '"a neat
set of legal rules"'" but observing that "[e]ven if in many instances the factual 'mosaic'
analyzed for a reasonable-suspicion determination would preclude one case from
squarely controlling another, 'two decisions when viewed together may usefully add to
the body of law on the subject'").
Unlike the circumstances in Andrade-Reyes and Schreiner v. Hodge, the police
suspected Bates or the other occupant of the minivan of ringing a stranger's doorbell at
1:27 a.m. As the district court judge stated: "Under the circumstances of this case, it was
reasonable for both the 9-1-1 caller and the officers to conclude that something was amiss
that should be looked into." And this specific—and unusual—practice followed a pattern
seen in burglaries. The officers also felt it suspicious the minivan had driven to a nearby
spot and parked with its lights off in a seldom-used alleyway. Granted, none of these
circumstances—or all of them taken together—rule out innocent behavior. "A
determination that reasonable suspicion exists, however, need not rule out the possibility
of innocent conduct." Arvizu, 534 U.S. at 277 (citing Illinois v. Wardlow, 528 U.S. 119,
125, 120 S. Ct. 673, 145 L. Ed. 2d 570 [2000]).
In summary, each of the factors we have identified is no doubt alone susceptible of
innocent explanation, none provide probable cause to believe a crime occurred, and some
factors are more probative than others. Taken together and "remembering that reasonable
suspicion represents a 'minimum level of objective justification,'" DeMarco, 263 Kan. at
735, they suffice to form a particularized and objective basis for a reasonable suspicion
that Bates was about to commit a crime. The seizure of the minivan was thus reasonable
under the Fourth Amendment and section 15.
Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.
20