State v. Roth ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,667
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ABRAM JON ROTH,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed May 7, 2021.
Affirmed.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Kimberly A. Rodebaugh, senior assistant district attorney, Thomas R. Stanton, district attorney,
and Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., GREEN and BUSER, JJ.
PER CURIAM: Abram J. Roth appeals the district court's denial of his motion to
suppress evidence based on a warrantless search and seizure of his automobile. The law
enforcement officer conducted a public safety check on Roth's welfare which transformed
into an investigatory detention. As a result, the officer developed probable cause to
conduct a warrantless search of Roth's vehicle and the seizure of contraband and
evidence. Finding no error, we affirm the district court's denial of Roth's motion to
suppress evidence.
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FACTUAL AND PROCEDURAL BACKGROUND
On June 18, 2019, at about 6:15 in the evening, Bert Sigler noticed a man, later
identified as Roth, sleeping in the driver's seat of a legally parked Ford Fusion outside of
his house. About two hours later, Roth was still asleep in the car, so Sigler—who was
concerned the man may have overdosed due to a string of drug overdoses that had
occurred in Hutchinson—notified the police.
Officer Robert Winslow of the Hutchinson Police Department was dispatched to
respond to the call. When he located the automobile, the window was open and Roth was
seated in the driver's seat, sleeping, with his head bowed over. Officer Winslow
attempted to wake Roth by knocking on the door. At the time, the keys were in the
ignition of the car and Roth had his seat belt fastened. Roth seemed startled upon
awakening. Officer Winslow asked, "How are you today, sir? Catching a little nap?"
Because Officer Winslow had difficulty communicating with Roth, who had slurred
speech, the officer suspected that Roth was impaired.
Officer Winslow asked to see Roth's driver's license. As Roth began reaching
around for his license, the officer noticed that Roth picked up an uncapped syringe filled
with a substance. The syringe had been placed between the driver's seat and console.
Roth quickly dropped the syringe between the seats. Upon viewing Roth's actions,
Officer Winslow asked him to get out of the automobile. This request occurred about 1
minute and 14 seconds after Roth was awakened.
Officer Winslow asked Roth about the syringe, and Roth told him it was for his
diabetic son. Officer Winslow asked whether Roth usually kept the syringe filled and
uncapped. Roth replied, "yeah" and indicated the amount was sufficient in case his son
needed it.
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Officer Winslow, a 10-year veteran of the Hutchinson Police Department, was
familiar with individuals under the influence of methamphetamine. Through his training
and experience he knew that methamphetamine could be injected and that it may cause
disorientation or lack of memory.
About four minutes after first encountering Roth, Officer Winslow requested a K-
9 unit to respond to the scene to investigate the automobile for illicit drugs. When the
drug dog arrived less than 10 minutes later, it alerted on Roth's car, indicating the
presence of a controlled substance. Officer Winslow searched the car, seizing the filled
syringe, a burnt straw covered in residue, several other syringes in an eyeglass case and a
handgun. A field test on the substance contained within the syringe, indicated it was
methamphetamine—a finding later confirmed by the KBI laboratory. Roth was arrested
at the scene.
The State charged Roth with possession of methamphetamine, criminal possession
of a firearm, and possession of drug paraphernalia. Prior to trial, Roth filed a motion to
suppress the evidence seized from his automobile. He contended that Officer Winslow
impermissibly extended the scope of the welfare check by removing Roth from the car
without reasonable suspicion that a crime had been committed.
An evidentiary hearing was held which included testimony by Officer Winslow,
Sigler, and the viewing of the officer's bodycam recording of the incident. In denying the
motion to suppress, the district court ruled:
"[C]ustody or restraint occurred when the defendant was asked to be taken from the car.
And this was after the syringe being observed.
"The court will find the viewing of the syringe rose to the level of giving an
officer a reasonably articulable belief that there were narcotics in the vehicle. The
defendant gave an explanation but . . . enough questions existed at that point for the
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officer to conduct a further investigation . . . in which the dog came and hit, then that
clearly established probable cause."
A bench trial was held on stipulated facts. The district court found Roth guilty of
possession of methamphetamine, criminal possession of a firearm, and possession of drug
paraphernalia.
Prior to sentencing, Roth filed a motion for a dispositional departure. The district
court denied Roth's motion and sentenced him to 28 months' imprisonment. Roth timely
appeals.
DENIAL OF MOTION TO SUPPRESS EVIDENCE
On appeal, Roth contends the district court erred in denying his motion to suppress
evidence because Officer Winslow impermissibly extended the scope of the public safety
welfare check and conducted an investigatory detention without reasonable suspicion.
We begin the analysis with our standard of review and a brief summary of relevant
search and seizure law. Our court utilizes a bifurcated standard when reviewing a district
court's ruling on a motion to suppress: the factual underpinnings of the decision are
reviewed for substantial competent evidence and the court's ultimate legal conclusion is
reviewed de novo. State v. Doelz, 309 Kan. 133, 138, 432 P.3d 669 (2019). When, as
here, the material facts are not in dispute, suppression is a question of law over which our
court's review is unlimited. State v. Stevenson, 299 Kan. 53, 57-58, 321 P.3d 754 (2014).
Although a defendant initiates a constitutional challenge to a search or seizure by filing a
motion to suppress, the State has the burden to prove any challenged police conduct was
permissible. State v. Cleverly, 305 Kan. 598, 605, 385 P.3d 512 (2016).
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The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment's Due Process Clause, protects "[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures." Section 15 of the Kansas Constitution Bill of Rights contains
similar language and provides "the same protection from unlawful government searches
and seizures as the Fourth Amendment." State v. Daniel, 291 Kan. 490, 498, 242 P.3d
1186 (2010). Under both the Fourth Amendment and section 15, warrantless searches and
seizures by law enforcement officers are deemed unreasonable and invalid unless a
recognized exception to the warrant requirement applies. Doelz, 309 Kan. at 140.
Whenever a law enforcement officer interacts with a person in a public place,
rights granted by the United States Constitution and Kansas Bill of Rights may be
implicated. The legal principles applied to safeguard them vary depending on the type of
interaction that takes place. State v. Manwarren, 56 Kan. App. 2d 939, 945-46, 440 P.3d
606 (2019). Kansas courts recognize four such police-citizen interactions: (1) voluntary
encounters; (2) investigatory detentions; (3) welfare checks or public-safety stops; and
(4) arrests. Cleverly, 305 Kan. at 605.
In this case, both parties agree that Officer Winslow and his partner were
dispatched to perform a welfare check on Roth after he was seen sleeping in his car for
about two hours. But Roth argues Officer Winslow exceeded the scope of that welfare
check by asking for his driver's license, which quickly led to the discovery of the
uncapped and filled syringe in Roth's possession.
Welfare checks fall under law enforcement's community-caretaking function and
permit law enforcement officers to check on a person's welfare for safety or assistance
reasons. State v. Vistuba, 251 Kan. 821, 824, 840 P.2d 511 (1992), disapproved of on
other grounds by State v. Field, 252 Kan. 657, 847 P.2d 1280 (1993). Neither encounter
is meant for investigative purposes. See State v. Gonzales, 36 Kan. App. 2d 446, 457, 141
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P.3d 501 (2006). Welfare checks must be "'"divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal statute."'" State v. Messner,
55 Kan. App. 2d 630, 637, 419 P.3d 642 (2018).
Kansas courts employ scrutiny carefully when applying this public safety rationale
to ensure that the protections of the Fourth Amendment are not rendered meaningless.
Gonzales, 36 Kan. App. 2d at 455. A three-part test helps to define the contours of a valid
welfare check: First, an officer has the right to stop or investigate when there are
objective, specific, and articulable facts to suspect that a person needs help or is in peril.
Second, if the person needs help, the officer may take the appropriate steps to render
assistance. And third, when the officer believes that the person is no longer in need of
assistance, any further actions constitute a seizure. State v. Ellis, 311 Kan. 925, 929-30,
469 P.3d 65 (2020) (citing Gonzales, 36 Kan. App. 2d at 456).
Under the first part of the welfare check test, Officer Winslow's initial contact with
Roth was plainly justified by safety reasons based on specific and articulable facts—the
call by Sigler, a concerned citizen, to the police after seeing Roth apparently asleep in his
automobile for two hours. Roth does not contest that Officer Winslow was rightfully
dispatched to check on his wellbeing or the court's findings that Officer Winslow "would
not have been doing his duty had he not checked to see if [Roth] was safe as far as from a
health standpoint."
Turning to the second prong, whether Officer Winslow took appropriate action to
render assistance, Roth contends that Officer Winslow did not make sufficient efforts at
ascertaining his wellbeing. Upon our review, however, the evidence shows that Officer
Winslow awakened Roth to check on his welfare and promptly noticed that Roth slurred
his words and had difficulty communicating with the officer. This benign colloquy was
consonant with a lawful encounter by the officer to ascertain Roth's wellbeing.
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Regarding the third prong, if the officer believes that the person is no longer in
need of assistance, any further actions constitute a seizure. Roth contends that Officer
Winslow "was not justified in asking for identification in the complete absence of doing
anything to check on [his] welfare." Moreover, Roth asserts that "at the point that
Winslow asked for identification, he was conducting a criminal investigation without any
reasonable suspicion of criminal activity. . . . It also changed what had ostensibly been a
welfare check into a traffic stop, albeit an illegal traffic stop."
Roth's complaint is mistaken. Our Supreme Court has held that "a law
enforcement officer's mere request for identification or identifying information generally
will not constitute a seizure." Ellis, 311 Kan. at 930; see State v. Pollman, 286 Kan. 881,
888, 190 P.3d 234 (2008). Similarly, in this appeal, the mere fact that Officer Winslow
asked to see Roth's driver's license did not constitute a seizure. And there is no evidence
that Officer Winslow was unlawfully attempting to extend the welfare check beyond its
permissible limits.
Roth also maintains the attempt to obtain his driver's license was a fishing
expedition and unreasonably extended the welfare check. However, the voluntary
encounter was not extended based on Officer Winslow's request for identification.
Rather, the voluntary encounter transformed into a criminal investigation when Officer
Winslow saw Roth drop the uncapped syringe filled with a substance while attempting to
locate his driver's license. Based on Officer Winslow's training and experience, Roth's
slurred speech and difficulty in communicating, coupled with his possession of the
syringe clearly suggested the presence of both illicit drugs and drug paraphernalia. As a
result, Officer Winslow's request for identification did not impermissibly extend the
welfare check. Roth's unusual behavior and discovery of the syringe at the time Officer
Winslow asked Roth for his driver's license transformed the welfare check into a criminal
investigation.
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In the district court's ruling, it found "the true custody or restraint occurred" when
Officer Winslow asked Roth to get out of the car. This seizure occurred after Officer
Winslow's observations of Roth's behavior and the presence of the uncapped and filled
syringe. Accordingly, the next question for our consideration is whether detaining Roth,
requesting a K-9 unit, and later searching the vehicle were statutorily and constitutionally
permissible.
Law enforcement officers must have reasonable suspicion that an individual is
committing, has committed, or is about to commit a crime in order to extend a welfare
check and detain the person for further investigation. See Ellis, 311 Kan. at 931; Pollman,
286 Kan. at 889 ("[I]nvestigatory detentions are permitted under K.S.A. 22-2402 and the
Fourth Amendment to the United States Constitution if an objective officer would have a
reasonable and articulable suspicion that the detainee committed, is about to commit, or
is committing a crime.") Reasonable suspicion is defined as a "'"minimum level of
objective justification' which is 'considerably less than proof of wrongdoing by a
preponderance of the evidence."'" Doelz, 309 Kan. at 139. Whether reasonable suspicion
exists is a question of law. State v. Thomas, 291 Kan. 676, 688, 246 P.3d 678 (2011).
The State argues, in part, that Officer Winslow was reasonably suspicious of
criminal activity—specifically, that Roth may have been driving under the influence—
based on Roth's "behavior, speech and disorientation." But the district court rejected this
argument at the hearing on the motion to suppress, noting that Officer Winslow did not
know for certain whether Roth had been driving his automobile.
Apart from Officer Winslow's testimony regarding Roth's apparent inebriation, the
court found that the sight of the uncapped, filled needle provided reasonable suspicion to
detain Roth and request a K-9 unit. According to the district court, the drug dog's alert
then provided probable cause to conduct a warrantless search of the automobile. We
agree. Our review of the record supports the district court's findings.
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In conclusion, we find that Officer Winslow conducted a valid public safety
welfare check. Shortly after waking and conversing with Roth, and upon asking him to
provide his driver's license, the officer observed Roth drop an uncapped filled syringe
inside the car. Under the circumstances, given the officer's training and experience with
methamphetamine users, there were specific articulable facts warranting a brief
investigatory detention. Lastly, the drug dog's detection of illegal substances in the
automobile provided probable cause to search it without a warrant and recover the
contraband. We hold the district court did not err in denying Roth's motion to suppress
evidence.
Affirmed.
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