State v. Castaneda ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,968
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DANIEL OSVALDO CASTANEDA,
Appellant.
MEMORANDUM OPINION
Appeal from Meade District Court; E. LEIGH HOOD, judge. Opinion filed December 23, 2020.
Affirmed.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: This direct criminal appeal centers on whether a police deputy had a
reasonable suspicion to extend a traffic stop and call for a drug dog to examine a stopped
car. We hold that he did and affirm the conviction.
After losing a motion to suppress the marijuana found in the car, Daniel Castaneda
and the State submitted to the court agreed stipulations of fact. The trial court found
Castaneda guilty of having 90 pounds of marijuana in that stopped car. The court then
1
imposed a downward durational departure sentence of 66 months based on the joint
recommendation of the parties.
In July 2018, a Meade County Sheriff's deputy searched Castaneda's SUV during a
traffic stop and discovered a large amount of marijuana. There is no video of the car stop,
but the facts are undisputed. The parties stipulated to the facts. The stipulations began
with a general description of the location, the vehicle, and the initial circumstances of the
car stop:
"1. Approximately 3:00 pm on July 28, 2018, Deputy Ritter with the Meade County Sheriff's
Department stopped a blue GMC Yukon with Arizona plates for changing lane without
signaling on US-64 at mile marker 43. The location described is within the City of
Meade, Meade County, Kansas.
"2. Upon the Deputies initial approach, he noticed two large cardboard boxes in the rear
cargo area of the Yukon and that the vehicle. The Deputy also noticed two juveniles in
the middle row of passenger seats and a female driver and male passenger, later identified
as Daniel O. Castaneda, the Defendant. The Deputy asked for identification, insurance,
and registration. While the Defendant was looking insurance and registration, the Deputy
asked where they were heading. The Defendant stated, 'Lexington.' The Deputy asked to
which Lexington they were heading. The Defendant took a few seconds to respond. The
Deputy asked if it was in Missouri, Illinois, or Kentucky. The Defendant, after another
pause, said 'Kentucky.'
"3. Upon retrieval of the insurance and registration, the Deputy relayed the information into
dispatch to perform a driver's license check. The Deputy learned the travel plans from
Phoenix, Arizona to Lexington, Kentucky and while waiting on dispatch, the Deputy
searched the travel plans on Google Maps and noted that the route through Meade,
Kansas added two hours of estimated drive time."
After that, the parties offered the court more details of the deputy's observations
and suspicions:
2
"4. Upon clearing the driver's license check, the Deputy re-approached the Yukon and
returned the information back to the driver and gave a warning. After taking several steps
and breaking contact with the Yukon, the Deputy re-engaged the Defendant. The Deputy
learned that Defendant and his family were heading to Kentucky for a week to celebrate
his son's birthday. The Deputy did not see a great deal of luggage and only noticed a
medium sized suitcase and back pack.
"5. The Deputy asked the Defendant if he had any marijuana in the vehicle and the
Defendant gave a nervous response of 'no, no, no' while waving both hands. He
responded with a simple 'no' without body movement to other similar questions.
"6. The Deputy asked several questions. The Deputy asked to search the vehicle and the
Defendant stated 'no, you may not.' The Deputy interpreted the response, to the marijuana
question as nervous. Deputy Hornback responded to the scene about 20 minutes after
called. The vehicle, not its occupants, were free to leave while waiting on Deputy
Hornback."
The parties then described for the court what happened when the drug dog arrived at the
scene:
"7. Deputy Hornback asked to have everyone exit the vehicle. Upon deployment of the K-9
officer, the K-9 alerted. Deputy Ritter searched the vehicle by beginning in the trunk. The
Deputy opened one of the cardboard boxes located in the trunk and could smell the odor
of raw marijuana. Deputy Hornback commented that he could smell the marijuana also.
"8. Inside the cardboard box was a speaker system. Deputy Ritter could see vacuum sealed
packages inside the speaker box. In total, forty-six (46) packages were removed from the
speaker boxes. Each vacuum sealed package contained a green leafy vegetation that field
tested positive for marijuana. The total weight of the forty-six (46) packages was 92.115
pounds, or 41.80 kilograms.
"9. The Deputy later interviewed the Defendant and the Defendant stated that he had placed
the vacuum sealed packages of marijuana in the speaker boxes. He said that he was on his
way to Lexington, Kentucky but that he did not have any friends or family there. The
Defendant further stated that his girlfriend, the driver of the vehicle, did not have any
knowledge of the marijuana in the vehicle."
3
The State charged Castaneda with one count of unlawful cultivation or distribution
of a controlled substance, one count of a tax stamp violation, and one misdemeanor count
of child endangerment.
In Castaneda's pretrial motion to suppress the marijuana found in his SUV, he
argued that the deputy had impermissibly detained him while waiting for the drug dog to
arrive.
In response, the State called the deputy to testify. He testified that he had a
reasonable suspicion to detain the occupants of the SUV and wait for the drug dog
because:
• Castaneda could not quickly recall what state he was traveling to;
• the deputy could only see one suitcase and one backpack, which seemed
inadequate for a family of four for a week-long trip;
• Castaneda had a tattoo on his hand that is sometimes associated with gang
membership;
• Castaneda was physically animated and nervous when the deputy had asked
whether there was marijuana in the car, but had calmly answered "no" when
asked about other drugs;
• Castaneda had been nervous and overexplained by showing his pocketknife
when asked if there were illegal weapons in the car;
• Castaneda was taking a route from Arizona to Kentucky that added two hours
to the trip; and
• Castaneda and his girlfriend were travelling from Phoenix—a known "source
spot" of narcotics trafficking.
4
After hearing this, the court found that the deputy had reasonable suspicion to
detain Castaneda while waiting for the drug dog to arrive and denied the motion to
suppress. In its analysis, the court cited three factors:
(1) Castaneda told the deputy that he was heading to Lexington but could not
immediately recall which state that was in;
(2) Castaneda's nervous response when asked about marijuana; and
(3) Castaneda was out-of-route for his trip.
The record discloses that the court explicitly rejected the deputy's testimony about
Castaneda's tattoo because it found that the deputy did not have any related training or
experience concerning such identifiers.
Castaneda makes a twofold attack on his conviction. He contends there is
insufficient evidence in the record to prove an intent to distribute the marijuana, an
element of the crime that the State had to prove. And, secondly, he alleges the court erred
when it denied his motion to suppress the evidence. We address the issues in that order.
There is sufficient evidence in the record to support a finding of guilt.
In this argument, Castaneda focuses on the judge finding him guilty of
"distribution" of marijuana. Castaneda contends that, based on the stipulated facts, there
is no evidence that he ever sold, offered to sell, transferred, or tried to transfer the
marijuana. As a result, Castaneda argues, insufficient evidence supports his conviction
for distribution of marijuana. But Castaneda's argument omits some important context.
The State charged Castaneda with violating K.S.A. 2019 Supp. 21-5705(a)(4),
which makes it a crime "to distribute or possess with the intent to distribute" marijuana.
At Castaneda's preliminary hearing, the State said that it was proceeding with a charge of
possession with intent to distribute based on its second amended complaint. Then at the
5
trial on stipulated facts, when the court asked what the charge was, the prosecutor and
Castaneda's attorney both said that it was possession with intent to distribute under the
second amended complaint.
Castaneda's attorney then found a copy of the complaint, gave it to the judge, and
stated that it was for "[u]nlawful cultivation or distribution of a controlled substance,"
which is K.S.A. 2019 Supp. 21-5705. And the trial court wrote in its journal entry of the
trial that it found Castaneda guilty beyond a reasonable doubt of violating K.S.A. 2019
Supp. 21-5705(a)(4), which, again, makes it a crime to distribute marijuana or possess
marijuana with the intent to distribute it.
The record is clear that the trial court found Castaneda guilty of possession with
intent to distribute, and sufficient evidence supports that conviction. Sufficient evidence
supports a conviction on appeal when, with the evidence viewed in a light most favorable
to the prosecution, the appellate court is convinced that a rational fact-finder could have
found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509,
Syl. ¶ 1, 324 P.3d 1078 (2014), overruled on other grounds by State v. Dunn, 304 Kan.
773, 807, 375 P.3d 332 (2016). Here, a rational fact-finder could easily find beyond a
reasonable doubt that Castaneda possessed the marijuana with the intent to distribute
it—the marijuana was being transported cross-country, it had been divided into 46
vacuum sealed packages, and the amount far exceeded what could be considered an
amount for personal use.
There is no reversible error here.
The deputy had a reasonable suspicion to wait for the drug dog.
Castaneda's main attack concerns the deputy prolonging the car stop. He does not
contest the basis for the traffic stop. Nor does he say that the deputy lacked probable
6
cause to search the SUV once the drug dog alerted. Instead, he argues that the deputy
improperly detained him after he did not consent to a search and the initial traffic stop
was completed.
The law is clear. Traffic stops are seizures under the Fourth Amendment to the
United States Constitution and are subject to its limitations. State v. Lowery, 308 Kan.
359, 363, 420 P.3d 456 (2018). In our view, this was an investigatory detention. To
lawfully conduct an investigatory detention under the Fourth Amendment, police officers
must have reasonable suspicion—an objective and specific basis for suspecting that the
person being detained is involved in criminal activity. 308 Kan. at 366. We also note that
K.S.A. 22-2402(1) allows a law enforcement officer to stop a person in a public place
when the officer reasonably suspects the person "is committing, has committed or is
about to commit a crime."
Of course, what is reasonable depends on all of the circumstances as viewed from
the perspective of a trained police officer. But officers must have specific and articulable
facts to support their suspicion for it to be reasonable. Lowery, 308 Kan. at 366.
When the defense moves to suppress evidence arising from a police stop, the State
must show the court that the stop was lawful. On appeal, we will accept the factual
findings of the district court when substantial evidence supports them. We will not
reweigh the evidence nor assess the credibility of witnesses. But we review the legal
conclusions drawn from those facts independently, without deferring to the district court's
decision. Lowery, 308 Kan. at 364. Whether reasonable suspicion exists is a question of
law. State v. Sharp, 305 Kan 1076, 1081, 390 P.3d 542 (2017).
The State argues that five factors support the trial court's reasonable suspicion
finding:
7
(1) Castaneda's delayed response when asked to which Lexington he was
traveling;
(2) Castaneda's use of a route from Phoenix to Lexington that added two hours
to the trip;
(3) the deputy saw only one small suitcase and a backpack in the back of the
SUV;
(4) Castaneda's nervousness when asked whether there was marijuana in the
car; and
(5) Castaneda's nervous "over-explaining" when denying that there were illegal
weapons in the vehicle.
We note that the deputy also testified about Phoenix being a known "source spot"
for drug trafficking, but the State has not mentioned that factor on appeal. Thus, we
consider that point abandoned. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787(2018).
Destination and route traveled
The record reveals that while Castaneda was looking for his insurance and
registration, the deputy asked where he was heading. Castaneda told him Lexington. The
deputy then asked which Lexington. Castaneda was silent for "a few seconds," then the
deputy prompted him with "Missouri, Illinois, or Kentucky?" Castaneda responded with
Kentucky.
The record also reveals that the fact stipulations of the parties admitted that the
deputy's Google map search suggested the route from Phoenix, Arizona to Lexington,
Kentucky was two hours longer by going through Meade, Kansas. The deputy said this
made him suspicious.
8
Discrepancies in travel plans or histories have been used as objective reasonable
suspicion factors in other cases, depending on the nature of the discrepancy. See State v.
Schooler, 308 Kan. 333, 354, 419 P.3d 1164 (2018). In Schooler, our Supreme Court
approvingly cited the Tenth Circuit's approach to the issue, which distinguishes between
"merely unusual travel plans, which do not contribute to reasonable suspicion, and
'bizarre, inconsistent and evasive' ones, which do." 308 Kan. at 354. Inconsistent and
evasive answers to questions contribute to reasonable suspicion because "lies, evasions or
inconsistencies about any subject while being detained may contribute to reasonable
suspicion." (Emphasis added.) 308 Kan. at 354 (quoting United States v. Simpson, 609
F.3d 1140, 1149 [10th Cir. 2010]).
The deputy, based on Castaneda's responses, suspected that he may be lying to
him. On appeal, we only have the words from a transcript to weigh and did not hear the
words as they were spoken, nor did we see Castaneda's demeanor when he was speaking
them. The trial court held there was certainly reasonable suspicion here. We recognize
along with the trial court that these concerns about Castaneda's responses contributed to
the deputy's suspicion.
Castaneda's nervousness
Two of the factors the State uses for support involve Castaneda's nervousness. We
note the contrast. The deputy testified that Castaneda calmly responded to questions
about methamphetamine and cocaine, but he acted nervous when asked about marijuana.
The deputy said that Castaneda became physically animated and had a smirk or slight
grin:
"[H]e became very physically animated with his hands and arms, waving them side-to-
side. He shook his head no, and he—his facial expression was almost, like, a smirk or a
9
slight grin where one side of his face was kinda cracking a smile, but it wasn't a full
smile."
The deputy then testified that when he asked if there were illegal weapons in the car,
Castaneda responded that all he had was a pocketknife. He then pulled it out of the
glovebox and showed it to the deputy. The deputy perceived that as a nervous over-
explanation because he had asked about illegal weapons, not legal weapons.
Again, on appeal, we will not usurp the trial court's role and decide about the
degree of nervousness Castaneda presented to the deputy. We defer to the lower court
that saw and heard the deputy testify at the suppression hearing. The judge ruled that this
factor contributed to the deputy's reasonable suspicion.
Lack of luggage
The deputy testified that he saw a medium-sized suitcase and a backpack. In his
view, that was not enough luggage for a week-long trip for a family of four. He also said
there could have been more luggage under the two boxes in the trunk, but he did not
know about that while he was conducting the stop.
Amounts of luggage that are inconsistent for the claimed duration of a trip can
support the formation of a reasonable suspicion. Several federal cases illustrate this point.
In United States v. Wisniewski, 358 F. Supp. 2d 1074, 1092 (D. Utah 2005), aff'd 192
Fed. Appx. 749 (10th Cir. 2006) (unpublished opinion), the court pointed out that very
little luggage in the automobile compared to the stated purpose of the trip contributed to a
reasonable suspicion. In United States v. Jones, 44 F.3d 860, 872 (10th Cir. 1995), the
lack of luggage for an alleged two-week trip was a factor supporting a reasonable
suspicion finding. Then, in United States v. Pulido-Vasquez, 311 Fed. Appx. 140, 145
(10th Cir. 2009) (unpublished opinion), the court held that a lack of luggage, even though
10
two men claimed to be taking an overnight trip, was a factor that suggested illegal
activity. And finally, in United States v. Correa, 641 F.3d 961, 964 (8th Cir. 2011), the
presence of just a small gym bag, which the officer considered too small for the trip
described, contributed to a reasonable suspicion.
Lies, evasions, or inconsistencies about any subject—including a lack of
luggage—while being detained may contribute to a reasonable suspicion. See Schooler,
308 Kan. at 354. Here, Castaneda's lack of luggage supports the trial court's ruling.
To sum up, we do not feel compelled to reverse. Considering all of the
circumstances here, the deputy did have specific and articulable facts suggesting that
Castaneda had committed, was committing, or planned to commit a crime. Castaneda did
not know where he was going until prompted by the deputy. He appeared nervous when
answering questions, and he became physically animated during one of those answers.
The deputy did not think the amount of luggage he could see was adequate, which
supports reasonable suspicion.
We affirm Castaneda's conviction.
11