NOT DESIGNATED FOR PUBLICATION. No. 119,170 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellant,

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1 NOT DESIGNATED FOR PUBLICATION No. 119,170 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellant, v. CHRISTOPHER SHANE DOUGLAS, Appellee. MEMORANDUM OPINION Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed December 21, Reversed and remanded with directions. Natasha Esau, assistant district attorney, Keith Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant. Shannon Crane, of Crane Law, of Hutchinson, and Sam S. Kepfield, of Hutchinson, for appellee. Before STANDRIDGE, P.J., MALONE, J., and STUTZMAN, S.J. STUTZMAN, J.: This is an appeal by the State from an order granting a motion to suppress evidence seized during a traffic stop. The district court held it had no basis to find the stop and detention were based on a reasonable and articulable suspicion. For the reasons discussed below, we reverse and remand with instructions to deny the motion to suppress. 1

2 FACTS AND PROCEDURAL BACKGROUND Just after 2:30 a.m. on July 28, 2017, Reno County Sheriff's Deputy Mikel Bohringer initiated a traffic stop when he saw a small truck traveling at 83 miles per hour in a 70-mile-per-hour zone on highway K-96. When the truck pulled over, Bohringer approached and identified the driver as Christopher Shane Douglas. Bohringer asked for proof of insurance for the truck and Douglas said it belonged to a friend, so Bohringer suggested looking in the glove box for the documentation. As Douglas leaned over toward the glove box and pulled out a registration envelope, Bohringer saw what he later described to the district court as "a clear capsule with a crystalized substance inside of it, just hanging out of [Douglas'] left front [pants] pocket." Based on his training and experience, Bohringer believed the crystalized substance was methamphetamine. Bohringer found the registration and insurance to be in order and instructed Douglas not to leave. Bohringer returned to his vehicle and requested assistance from another unit which arrived about 10 minutes later. In a subsequent search of the truck, Bohringer saw the clear capsule with the suspected methamphetamine located on the left part of the truck seat, near the backrest. He arrested Douglas and the State charged him with possession of methamphetamine and drug paraphernalia. Douglas filed a motion to suppress the evidence obtained during his traffic stop. He contended Bohringer "was playing a hunch" and unconstitutionally extended the length of the traffic stop, in violation of the Fourth and Fourteenth Amendments to the United States Constitution and 15 of the Kansas Constitution Bill of Rights. The State admitted and played the recording from the dash-mounted camera in Bohringer's patrol vehicle. Bohringer testified he also activated his body camera during the stop and agreed that camera should have shown a partial view of the truck's interior. 2

3 After Bohringer's testimony, Douglas requested the hearing be continued for a short time because he had not seen the recording from Bohringer's body camera. When the hearing was reconvened five days later, the parties agreed the court could review the recordings from the dash and body cameras, presented argument, and submitted the motion for decision. The district court found Bohringer stopped Douglas for speeding and "observed a capsule in defendant's pants pocket when defendant reached for the vehicle registration in the glove compartment." The court made an additional finding of fact that Bohringer detained Douglas longer than necessary to issue a speeding ticket. In its analysis of the evidence, the district court wrote: "Officer Bohringer testified he observed a capsule in defendant's pants pocket when defendant reached for the vehicle registration. The State introduced evidence consisting of two videos, the patrol car video and Officer Bohringer's body camera video. No description of the capsule was provided to the court. The capsule itself was not provided to the court to examine. The videos did not show the capsule. The court has no basis on which to find the detention was based on a reasonable and articulable suspicion." From there, the district court concluded the State had failed to meet its burden of proof and granted Douglas' motion to suppress. The State timely appeals. ANALYSIS Our standard for review of a district court's decision on a motion to suppress has two components. We review the district court's factual findings to determine whether they are supported by substantial competent evidence, then we consider the ultimate legal conclusion de novo. Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as adequate to support a conclusion. We do not reweigh 3

4 the evidence presented to the district court or assess the credibility of witnesses. State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015). Nothing in this case suggests Bohringer stopped Douglas for any reason, or with any suspicion in mind, other than the fact he was speeding. Nevertheless, important constitutional guarantees then came into play: "[W]hen a law enforcement officer displays authority and restrains an individual's liberty by stopping a vehicle on a public roadway, constitutional issues arise because a seizure occurs within the meaning of the Fourth Amendment to the United States Constitution and 15 of the Kansas Constitution Bill of Rights, both of which protect individuals against unreasonable searches and seizures." State v. Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014). During a routine traffic stop, an officer may request an individual's driver's license and registration, run a computer check, and issue a citation but cannot prolong a stop beyond the time necessary to issue the citation. State v. Lewis, 54 Kan. App. 2d 263, 271, 399 P.3d 250 (2017). Generally, if the driver has a valid driver's license, the driver must be allowed to leave without delay once the purpose of the traffic stop has been accomplished. Jones, 300 Kan. at 640. To extend a routine traffic stop, an officer must have more than a hunch; the officer must have an "objectively reasonable and articulable suspicion that some other criminal activity had taken or is taking place." Lewis, 54 Kan. App. 2d at 271. Here, the district court made three findings of fact: (1) Bohringer stopped Douglas for speeding; (2) Bohringer "observed a capsule in defendant's pants pocket when defendant reached for the vehicle registration in the glove compartment;" and (3) Bohringer detained Douglas longer than necessary to issue a speeding ticket while the capsule was seized and tested. The first two fact findings are clearly supported by Bohringer's testimony that he stopped Douglas for driving 83 miles per hour in a 70-mile- 4

5 per-hour zone and his direct statement about what he saw when Douglas leaned over to the glove compartment to look for documents. The support in the record for the third finding is not as clear. On crossexamination, Bohringer did agree that he held Douglas for "at least 10 minutes" until another officer arrived in support, since it was a nighttime stop when a subject was going to be outside the vehicle. He did not, however, agree with the statement by Douglas' counsel that for "a typical traffic stop" all the usual actions "wouldn't take five minutes." He testified that a quick stop might be five minutes, but he had also made traffic stops that required up to 20 minutes to process. Applying our deferential standard, we accept that the district court could have assessed the evidence of this stop to be among those that should have resolved in less than the time that was taken. As we have found the district court's factual findings are supported by the record, we move to the district court's legal conclusion. Since the district court found the traffic stop was extended beyond the time needed to issue a speeding ticket, we must decide whether Bohringer had an objectively reasonable and articulable suspicion of criminal activity. Whether reasonable suspicion exists is a question of law reviewed de novo. Jones, 300 Kan. at 642. Reasonable suspicion is a particularized and objective basis for suspecting the person stopped of criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. State v. Lowery, 308 Kan. 359, 366, 420 P.3d 456 (2018). "Any court making a reasonable suspicion determination must be able to find by a preponderance of the evidence that the State has presented 'at least a minimal level of objective justification' which, when examined under the totality of the circumstances, justifies a reasonable suspicion of the presence of illegal drugs or of some other serious criminal activity." Jones, 300 Kan. at 642. In ruling on the motion to suppress, the district court stated its reasoning: 5

6 "Officer Bohringer testified he observed a capsule in defendant's pants pocket when defendant reached for the vehicle registration. The State introduced evidence consisting of two videos, the patrol car video and Officer Bohringer's body camera video. No description of the capsule was provided to the court. The capsule itself was not provided to the court to examine. The videos did not show the capsule. The court has no basis on which to find the detention was based on a reasonable and articulable suspicion." (Emphasis added.) From that reasoning, the district court then concluded that "[t]he State... failed in its burden to prove the seizure of defendant and search of defendant's vehicle was reasonable." The district court's declaration that the State failed to provide a description of the capsule Bohringer saw is directly contrary to the evidence. The State called Bohringer to give evidence and he described what he saw in the beam of his flashlight for a period of about five seconds a clear capsule with a crystallized substance inside that in his trained opinion was consistent with methamphetamine. The district court made a specific finding of fact based on Bohringer's observation of the capsule but, in its brief discussion, appeared to ignore that finding. Consequently, the district court's final analysis that "[t]he court has no basis on which to find the detention was based on a reasonable and articulable suspicion" erroneously derived from the same omission. The district court then arrived at the legal conclusion, which we review de novo, that the State failed to meet its burden to show the reasonability of the search and seizure. As noted above, the State's burden was to provide evidence sufficient to support a finding, by a preponderance of the evidence, that there was "'at least a minimal level of objective justification' which, when examined under the totality of the circumstances, justifie[d] a reasonable suspicion of the presence of illegal drugs or of some other serious criminal activity." Jones, 300 Kan. at 642. The evidence the State presented and the district court accepted was sufficient to clear that threshold. Further, Bohringer's 6

7 observation of the capsule soon after he stopped Douglas provided the basis for extending the detention beyond the time needed to process a speeding citation. Consequently, we reverse and remand to the district court with directions to deny the motion to suppress. Reversed and remanded with directions. * * * MALONE, J., dissenting: I respectfully dissent from the majority's conclusion that this case should be remanded with directions to deny Christopher Shane Douglas' motion to suppress. I would dispose of this appeal in a different way. The district court filed a two-page written order granting Douglas' motion to suppress. As the majority states, the district court found that Officer Mikel Bohringer stopped Douglas for speeding and "observed a capsule in defendant's pants pocket when defendant reached for the vehicle registration." The court also found that Bohringer detained Douglas longer than necessary to issue a speeding ticket. This finding is significant because "[t]raffic stops cannot be measurably extended beyond the time necessary to process the infraction that prompted the stop unless there is a reasonable suspicion of or probable cause to believe there is other criminal activity, or consent." State v. Jimenez, 308 Kan. 315, Syl. 2, 420 P.3d 464 (2018). In its "discussion" of the evidence, which is basically a mixture of additional factual findings and legal conclusions, the district court wrote: "Officer Bohringer testified he observed a capsule in defendant's pants pocket when defendant reached for the vehicle registration. The State introduced evidence consisting of two videos, the patrol car video and Officer Bohringer's body camera video. No description of the capsule was provided to the court. The capsule itself was not 7

8 provided to the court to examine. The videos did not show the capsule. The court has no basis on which to find the detention was based on a reasonable and articulable suspicion." Significantly, in the next sentence, the district court concluded that the State "failed in its burden to prove" that the seizure of Douglas and the search of his vehicle was reasonable. As the parties acknowledge, the State bears the burden of proving the lawfulness of the search and seizure at a hearing on a motion to suppress. K.S.A (2); State v. DeMarco, 263 Kan. 727, Syl. 2, 952 P.2d 1276 (1998). The district court's finding that the State did not meet its burden of proof is a negative factual finding. In reviewing a negative factual finding, the appellate court must consider whether the district court arbitrarily disregarded undisputed evidence or relied upon some extrinsic consideration such as bias, passion, or prejudice to reach its decision. State v. Smith, 303 Kan. 673, 679, 366 P.3d 226 (2016). I interpret the district court's written order as saying that because Bohringer's testimony that he saw a capsule in Douglas' pants pocket was not corroborated by some additional evidence, the court found that the State failed to meet its burden of proof on whether there was reasonable suspicion to extend the duration of the car stop. Although the district court did not come right out and say it, there is a reasonable inference here that the court did not find Bohringer's testimony standing alone credible enough to uphold the search and seizure. Generally, an appellate court does not reweigh the evidence presented to the district court or assess the credibility of witnesses. State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015). Here, the district court found that the State failed to meet its burden of proof because the capsule that Bohringer observed "was not provided to the court to examine." This finding is supported by the record. The district court also found that the State failed to meet its burden of proof because "[t]he videos did not show the capsule." This finding is supported by the record. The district court also found that the State failed to meet its 8

9 burden of proof because "[n]o description of the capsule was provided to the court." As the majority points out, this finding is not supported by the record because Bohringer did, in fact, describe the capsule and testified that it looked like methamphetamine. The district court's finding that no description of the capsule was provided to the court is not supported by substantial competent evidence and cannot be used to uphold the court's legal conclusion that the evidence should be suppressed. The district court arbitrarily disregarded undisputed evidence by making this finding. But in my view, this error does not mean that we should remand this case with directions for the district court to deny the motion to suppress. The district court expressed other valid reasons why it found that the State failed to meet its burden to prove the search and seizure was lawful. I would reverse the district court's decision and remand with directions for the district court to reevaluate its findings based on the evidence that Bohringer did, in fact, describe the capsule that he saw in Douglas' pants pocket. On remand, the district court should clarify its factual findings to conform to the evidence admitted at the suppression hearing, and make specific credibility determinations of witness testimony to the extent that it is necessary, in order to justify the court's ultimate legal conclusion on whether Douglas' motion to suppress should be granted or denied. 9