State v. Bulk ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,783
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellant,
v.
JEANNIE R. BULK,
Appellee.
MEMORANDUM OPINION
Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed April 10, 2020. Affirmed.
Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellant.
Jeffery S. Adam, of Robinson Firm, LLC, of Manhattan, for appellee.
Before LEBEN, P.J., SCHROEDER, J., and LAHEY, S.J.
PER CURIAM: On January 29, 2019, Jeannie R. Bulk was stopped for a traffic
infraction. The district court ordered suppression of the evidence discovered in her
vehicle following its search, finding the officer unconstitutionally extended the stop and
the officer's testimony lacked credibility. The State timely filed this interlocutory appeal,
arguing the district court improperly suppressed the evidence. After review, we find the
district court's decision is supported by substantial competent evidence, and we affirm.
FACTS
Undersheriff Jim Bogart of Clay County was on duty with his certified drug dog.
He executed a traffic stop on the car driven by Bulk because it was being operated with a
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defective muffler. Bulk provided him with her license and vehicle registration. Back in
the police vehicle, Bogart ran Bulk's license and registration but did not start writing her
a ticket. Instead, he went back to the car and asked Bulk for consent to search the vehicle.
She denied consent, and Bogart asked her to exit the vehicle while he deployed his dog to
sniff the car. Shortly before the search, Officer Billy Smith of the Clay County Police
Department was dispatched to the scene.
The dog alerted on the driver's side door, and Bogart searched the car. He searched
the driver's seat area first, then the rear passenger compartment on the driver's side,
before searching Bulk's purse and the driver's seat area a second time. About 10 minutes
later, Bogart opened the vehicle's ashtray and discovered a glass smoking pipe wrapped
in a paper towel. The glass pipe field-tested positive for methamphetamine. Bulk was
arrested and charged with possession of methamphetamine and possession of drug
paraphernalia.
Bogart was not wearing a body camera during the encounter, nor was his police
vehicle equipped with a recording device. Smith, however, was wearing a body camera
when he arrived just before Bogart started searching the car.
Bulk moved to suppress the evidence, arguing Bogart unlawfully extended the
traffic stop without reasonable suspicion she had committed a crime other than operating
a car with a defective muffler.
At the suppression hearing, Bogart testified when Bulk gave him her license and
registration, he saw in plain view a clear glass tube wrapped in a paper towel sticking out
of the vehicle's ashtray. Based on his training and 29 years of experience in law
enforcement, Bogart said the item appeared to be a glass smoking pipe used as drug
paraphernalia. Initially, Bogart testified he said nothing to Bulk about the item. But on
cross-examination, defense counsel confronted Bogart with a prior inconsistent statement
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from his report in which he claimed to have told Bulk he "believed that there was drug
paraphernalia in the car." Bogart readopted the report statement and said, "If it's on the
report, I did tell her that." Bogart testified he waited to tell Smith about the drug
paraphernalia he saw in plain view until after he collected it.
Defense counsel admitted into evidence footage taken from Smith's body camera
and played the video in court. When the footage starts, Bogart is walking towards the
vehicle. Bogart has a discussion with Bulk, during which he can be heard asking, "Do
you have anything illegal in the vehicle I should be aware of?" Bulk's response is
inaudible. Bogart then asks Bulk for consent to search the vehicle, but their conversation
after his request is muddled by background noise. Bogart does not tell Smith in the video
about his suspicion the car contains drug paraphernalia.
Bogart said he did not immediately seize the drug paraphernalia because the
evidence was under his control and was not going anywhere. He waited to seize the pipe
because he was trained to search vehicles in a grid pattern, and he would stick to that
method even if he had already seen something illegal.
Bogart admitted his request for consent and the use of the dog sniff were
unnecessary because he had previously seen what appeared to be drug paraphernalia in
plain view. He claimed the purpose of these additional measures was to confirm his
suspicion there was drug paraphernalia in the vehicle.
The district court granted Bulk's motion, finding Bogart's testimony lacked
credibility for the district court to believe Bogart saw the glass pipe in plain view when
he first approached the car. The district judge remarked, "Obviously, if he'd seen drug
paraphernalia, he had reasonable suspicion." But the district court found Bogart's actions
did not align with his testimony on the matter, stating it had seen "so many videos of
traffic stops over the years and . . . usually officers explain to the drivers why they're
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being stopped, why they're being asked to get out. If they observe things, they usually
inquire about them." The district court found it very unusual Bogart did not tell Bulk or
Smith he had seen the smoking pipe in plain view and he "did not tell anyone at all until
. . . after he placed the defendant under arrest after 13 minutes of searching . . . that there
was drug paraphernalia." However, our review of the tape reflects the search lasted about
10 minutes, and we make this disclosure for purposes of clarity in the record. The district
court went on to question why Bogart did not go "straight to the item he observed . . . was
drug paraphernalia which would be the logical thing a person would expect somebody to
do," or why Bogart asked for consent when he claimed to have plainly seen drug
paraphernalia.
Finally, the district court adopted defense counsel's reasoning at the suppression
hearing that (1) Bogart did not see the paraphernalia in plain view until after he started
searching the car, and (2) Bulk's detention was therefore extended without the requisite
reasonable suspicion.
After ruling on the motion, the district court gave both parties the opportunity to
ask questions. Neither party had questions.
ANALYSIS
When a defendant moves to suppress evidence, the State has the burden to prove
its search and seizure was lawful. In reviewing the granting or denial of a motion to
suppress evidence, we first determine—without reweighing evidence or assessing witness
credibility—whether the district court's factual findings are supported by substantial
competent evidence. State v. Sanders, 310 Kan. 279, 285, 445 P.3d 1144 (2019).
"'Substantial competent evidence is "such legal and relevant evidence as a reasonable
person might accept as being sufficient to support a conclusion."'" State v. Doelz, 309
Kan. 133, 138, 432 P.3d 669 (2019). Second, we review the district court's ultimate legal
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conclusion de novo, without required deference to the lower court's decision. Sanders,
310 Kan. at 285.
Only the facts are at issue here. Accordingly, our review is limited to whether the
district court's factual findings are supported by substantial competent evidence. The
State argues the district court's findings indicating it did not believe Bogart are
unsupported by the evidence.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights prohibit unreasonable searches and seizures. State v. Williams,
297 Kan. 370, 376, 300 P.3d 1072 (2013). "A routine traffic stop is a seizure under the
Fourth Amendment, so it is subject to the constitutional requirement of reasonableness."
State v. Arrizabalaga, 57 Kan. App. 2d 79, 86, 447 P.3d 391 (2019), rev. granted
February 25, 2020. Depending on the circumstances, a search or seizure is generally
"unreasonable" when it is accomplished without a valid warrant or without a recognized
exception to the warrant requirement. Sanders, 310 Kan. at 285.
One exception to the warrant requirement is an investigatory detention, which
allows an officer to stop and briefly detain an individual without a warrant as long as the
officer has facts supporting a reasonable and articulable suspicion the individual is
committing, has committed, or is about to commit a crime. 310 Kan. at 286; see Terry v.
Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Courts treat traffic stops like investigatory detentions. State v. Jimenez, 308 Kan.
315, 323, 420 P.3d 464 (2018). An investigatory detention must be justified from the start
and reasonably related in scope to the circumstances supporting the seizure was lawful in
the first place. Terry, 392 U.S. at 19-20. In the traffic-stop context, the duration of the
officer's inquiry must be limited to the ordinary steps incident to the stop—such as
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checking the driver's license and registration, running a computer check, and issuing a
citation—and related safety concerns. See Jimenez, 308 Kan. at 323.
When the officer's mission exceeds the scope of a traffic stop, the officer must
have reasonable suspicion or consent to further detain the individual. 308 Kan. at 323-24,
326; see Rodriguez v. United States, 575 U.S. 348, 354-55, 135 S. Ct. 1609, 191 L. Ed.
2d 492 (2015). "Reasonable suspicion is '"'a particularized and objective basis' for
suspecting the person stopped of criminal activity."' . . . Reasonable suspicion is a lower
standard than probable cause. 'What is reasonable depends on the totality of
circumstances in the view of a trained law enforcement officer.'" State v. Lowery, 308
Kan. 359, 366, 420 P.3d 456 (2018).
And when officers conducting a traffic stop unconstitutionally obtain evidence,
suppression of the evidence may be warranted under a judicially created remedy known
as the exclusionary rule, which allows courts to prevent the evidence from being used at
trial. State v. Pettay, 299 Kan. 763, 768, 326 P.3d 1039 (2014).
Here, both parties agree when Bogart abandoned writing Bulk a ticket, he needed
reasonable suspicion other than the reason for the initial stop to extend the encounter with
the dog sniff. If the district court would have accepted Bogart's testimony that he
observed a glass tube in plain view in the ashtray at the start of the encounter, it could
have reasonably concluded Bogart had reasonable suspicion to extend the stop based on
his training and experience as an officer. See, e.g., State v. Morris, 276 Kan. 11, 15, 72
P.3d 570 (2003) (officers had reasonable suspicion to further detain individual after they
smelled chemical odor coming from inside vehicle and saw camp stove in plain view). As
the district judge remarked, "Obviously, if he'd seen drug paraphernalia, he had
reasonable suspicion."
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But the district court's analysis shows it did not find Bogart's testimony on that
point credible, finding Bogart (1) claimed to have seen the pipe but said nothing about it
to Bulk or Smith until after he seized it; (2) asked for Bulk's consent to search the
vehicle, which would have been unnecessary if he had seen the pipe; and (3) searched the
car for 10 minutes before seizing the pipe. The district court found these facts very
unusual based on the numerous traffic stop videos it had reviewed over the years.
The State argues each of these findings is unsupported by the evidence. But this
argument lacks persuasion in light of the record as a whole. At first, Bogart testified he
did not tell Bulk he had seen drug paraphernalia. He changed his testimony after being
confronted with a contrary statement he had made in his report. And Bogart testified he
did not tell Smith about the drug paraphernalia until after he collected it. The district
court reviewed footage taken from Smith's body camera, which shows Bogart searching
various areas of the car for about 10 minutes before arresting Bulk.
The State argues the district court incorrectly "based its conclusions on its
personal view of what it believed to be standard police procedure." But "[a] court 'must
judge the officer's conduct in light of common sense and ordinary human experience
under the totality of the circumstances.'" Jimenez, 308 Kan. at 324. The district court
properly relied on its common sense and experience when evaluating Bogart's credibility.
Overall, the State's real argument is the district court should have weighed the
evidence and assessed Bogart's credibility differently. But we will not reweigh the
evidence or disturb the district court's credibility determination of Bogart. See Sanders,
310 Kan. at 285. The State asks us to do so anyway, arguing the district court should have
believed Bogart's statement in his report over his initial testimony that he did not tell
Bulk about the drug paraphernalia and the district court should have accepted Bogart's
reasonable explanation for the manner in which he searched the car. The district court
clearly acted within its power when it weighed the evidence and found Bogart's actions
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contradicted his testimony that he observed the pipe in plain view at the start of his
contact with Bulk.
At the conclusion of the hearing, the district court expressly asked the parties if
they had any questions. They both said no. The State could have asked for clarification
on the district court's credibility finding and did not. And the State did not object to the
district court's findings or lack of findings. Generally, a party must object to inadequate
findings of fact to preserve the issue for appeal. See State v. Herbel, 296 Kan. 1101,
1119, 299 P.3d 292 (2013). When a party fails to object, we presume the district court
"found all facts necessary to support its judgment." State v. Jones, 306 Kan. 948, 959,
398 P.3d 856 (2017). Here, the district court's finding on Bogart's credibility could have
been clearer. However, we presume the district court found all facts necessary to support
its holding Bulk's detention was extended without the requisite reasonable suspicion of
Bogart having observed the glass pipe in plain view upon his initial contact with Bulk.
Affirmed.
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