City of Wichita v. Kennedy

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NOT DESIGNATED FOR PUBLICATION

No. 114,353

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF WICHITA,
Appellant,

v.

JESSE KENNEDY,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; J. PATRICK WALTERS, judge. Opinion filed May 27, 2016.
Reversed and remanded.

Jan Jarman, assistant city attorney, for appellant.

No appearance by appellee.

Before POWELL, P.J., ARNOLD-BURGER, J., and BURGESS, S.J.

Per Curiam: A law enforcement officer may arrest any person he or she observes
committing a misdemeanor or felony. K.S.A. 22-2401(d). Jesse Kennedy was followed
by police and observed committing a reckless driving offense, a misdemeanor. Kennedy
was stopped, arrested, and eventually charged with several crimes including battery on a
law enforcement officer. He filed a motion to suppress the evidence obtained after his
arrest on the basis that the officer lacked probable cause to arrest him. The district court
granted the motion. The City of Wichita (City) then filed this interlocutory appeal.
Because we find that the district court erred in granting Kennedy's motion to suppress, we
reverse and remand for further proceedings.
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FACTUAL AND PROCEDURAL HISTORY

Detective Christian Cory was driving home from work in an unmarked police car
when two vehicles driving the opposite direction caught his attention. One of the
vehicles, a large white SUV, was swerving and driving aggressively making it appear as
though "[s]omething was going on between [the] two vehicles." Cory continued to watch
the approaching cars and saw the white SUV travel down the road straddling the lane
lines and drive in a way that led Cory to believe "there was a disturbance of some type."
Cory then turned his vehicle around to follow the white SUV. Once he was behind the
SUV, Cory observed additional traffic violations including an unsafe lane change, using
the center turn lane to pass another car, and reckless driving. Because Cory was in an
unmarked car, he radioed in to dispatch and requested backup rather than immediately
conducting a traffic stop.

Cory eventually followed the vehicle to the parking lot of an apartment complex.
At that point, Cory made the decision to initiate a stop despite the fact that backup had
not yet arrived because he was concerned the occupants of the car would enter an
apartment making contact with them more difficult. Since he did not have the benefit of
lights or a siren, Cory waited for the vehicle to stop, then exited his car, drew his gun to
threat-ready level, and yelled "[p]olice." As Cory approached, he issued verbal
commands for the passengers in the vehicle to "[s]how me your hands" and to stay in the
vehicle.

When Cory reached the vehicle, he made contact with the driver, Kennedy, and
asked for his driver's license. Cory then put his gun away and tried to deescalate the tone
of the encounter. As Kennedy reached for his driver's license, Cory noticed that
Kennedy's eyes were bloodshot, he smelled of alcohol, and he had difficulty getting his
license.
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After Kennedy handed Cory his license, Cory asked all three occupants of the
vehicle to put their hands up. Cory then asked the passengers to provide identification as
well. The passengers started to comply, but the passenger in the front seat changed his
mind and ultimately refused. Soon after that, the remaining occupants in the vehicle
became noncompliant—they removed their hands from the seats and began talking over
Cory's commands.

After Kennedy took his hands down from the dash, he reached for Cory and
grabbed his driver's license out of Cory's hand. Cory reached toward Kennedy to retrieve
the license and Kennedy hit his hand out of the way. At that point, Cory felt that he had
lost control of the situation and became worried for his safety.

As Cory continued to attempt to control the situation, Kennedy made a move to
get out of the vehicle. Kennedy put his hands in Cory's face forcing him to take a step
back away from the car. Cory cleared Kennedy's hands out of his face only to have
Kennedy bring them forward again. Cory then told Kennedy he was under arrest.
Kennedy continued to be noncompliant so Cory punched him in the face once, knocking
him back into the vehicle. Cory then attempted to handcuff Kennedy, but Kennedy
continued to move around and resist. Cory hit Kennedy several more times as he
attempted to subdue Kennedy. After five or six strikes Kennedy complied and Cory was
able to handcuff him.

Soon after Kennedy was subdued, additional officers arrived at the scene to assist
Cory. Kennedy was then taken into custody.

Kennedy was charged with battery of a law enforcement officer, assault,
interference with law enforcement, reckless driving, driving under the influence, and
three counts of unsafe lane change. Kennedy pled no contest to all but the DUI charge
which was dismissed by the municipal court. Kennedy then appealed to the district court.
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At the district court, Kennedy filed a motion to quash arrest and suppress
evidence. In his supporting memorandum, Kennedy argued that Cory arrested him,
without probable cause, when Cory approached his vehicle with gun drawn and
demanded to see the vehicle occupants' hands. After a hearing, the district court granted
the motion, finding that the "City has not met its burden."

The City then filed this interlocutory appeal.

ANALYSIS

The City argues that the district court erred when it granted Kennedy's motion to
suppress "all evidence flowing from [his] illegal arrest." When reviewing a district court's
grant of a motion to suppress, appellate courts utilize a bifurcated standard. Appellate
courts review district courts' factual findings to determine whether they are supported by
substantial competent evidence. The legal conclusions drawn from the application of the
law to the facts are reviewed de novo. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367
(2014). When the facts material to a district court's decision are not in dispute, the
question of whether to suppress is one of law over which this court exercises unlimited
review. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014). The facts related to this
motion are not in dispute.

This case is complicated by the fact that the City's brief on appeal and Kennedy's
memorandum in support of his motion to suppress seem to argue past each other. On
appeal, the City takes for granted that the dispute revolves around whether there was
probable cause to arrest Kennedy after he hit Cory's hand in his attempt to regain control
of his driver's license. Kennedy did not file an appellate brief. However, Kennedy's
memorandum below argued that his arrest was illegal because there was not probable
cause to arrest him at the moment Cory approached his vehicle with gun drawn. This
discrepancy would be easily resolved but for the fact that the district court made no
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factual findings and provided no reason for granting Kennedy's motion. Presumably, the
district court granted Kennedy's motion for the reason he expounded in his motion—
namely, because the City failed to convince the district court that Cory had probable
cause to arrest Kennedy when he initiated contact. This presumption will serve as the
foundation for the analysis here. Therefore, the question this court must answer is
whether Cory's initial stop of Kennedy constituted an unlawful arrest.

Courts distinguish between four types of citizen-police interactions: voluntary
encounters, public safety stops (also known as welfare checks), investigatory detentions
(Terry stops), and arrests. State v. Hill, 281 Kan. 136, 141-42, 130 P.3d 1 (2006).
Voluntary encounters are just that, voluntary, and are not considered a seizure under the
Fourth Amendment to the United States Constitution. The target citizen is free to engage
or disregard the officer. When an officer initiates an investigatory detention, however, the
target citizen is not free to disregard the officer or terminate the encounter at his or her
pleasure. Thus, the encounter is a form of seizure and triggers the protective requirements
of the Fourth Amendment; because of this, a minimum level of suspicion is required
before an officer can initiate the interaction. However, because investigatory detentions
are limited in scope and duration, officers need only have reasonable suspicion that a
person is, has, or is about to commit a crime prior to making contact. See 281 Kan. at
141. A traffic stop is one type of investigatory detention. 281 Kan. at 143. Clearly at a
minimum, this case involves an investigatory detention.

An arrest occurs when an individual is "physically restrained or when he or she
submits to the officer's custody for the purpose of answering for the commission of a
crime." 281 Kan. at 143; see K.S.A. 2015 Supp. 22-2202(d). Because arrest involves a
significant intrusion on an individual's liberty, a higher level of suspicion, probable cause,
that a person has committed or is committing a crime, is necessary before an officer may
initiate an arrest. 281 Kan. at 145.

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Because both investigatory detentions and arrests involve a restraint on an
individual's freedom, it can be difficult at times to distinguish between the two
encounters. Our Supreme Court has held that "the test for whether a seizure and an arrest
has occurred is based on what a reasonable person would believe under the totality of the
circumstances surrounding the incident." 281 Kan. at 145. Aside from Hill, there are few
Kansas cases that attempt to distinguish between an investigatory detention and an arrest
under circumstances similar to those at issue here. Accordingly, solely for purposes of
this decision, we will assume—without deciding—that Kennedy is correct and that Cory
arrested Kennedy when Corey stepped from his vehicle with his gun drawn and ordered
Kennedy to remain in the vehicle and put his hands on the dashboard.

Kansas statutes dictate the circumstances under which an officer is justified in
making an arrest. As it applies to the facts here, an officer is justified in making an arrest
when the officer has probable cause to believe the person is committing or has committed
a misdemeanor and either evidence of the crime will be irretrievably lost unless the
person is immediately arrested or the person may cause injury to self or others or damage
to property unless immediately arrested. K.S.A. 22-2401(c)(2)(A), (B). Moreover, an
officer is justified in making an arrest when any crime, except a traffic infraction, is
committed by the person in the officer's view. K.S.A. 22-2401(d).

Reckless driving, K.S.A. 8-1566, is not a traffic infraction. K.S.A. 2015 Supp.
21-5102(b) (traffic infractions are only those offenses listed in subsection (c) of K.S.A.
8-2118). It is not a felony. K.S.A. 2015 Supp. 21-5102(a) (felonies are crimes punishable
by death or imprisonment in a state prison or a crime defined as a felony by law).
Therefore, reckless driving is a misdemeanor. K.S.A. 2015 Supp. 21-5102(d) (all other
crimes are misdemeanors).

Corey testified that Kennedy was driving the vehicle recklessly. He first observed
the SUV Kennedy was driving "swerving heavily," crossing and straddling the dotted
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lane lines for some time, and exceeding the posted speed limit. While still speeding,
Kennedy proceeded to abruptly turn in front of a vehicle that was in the process of
stopping in a right turn lane, cutting the vehicle off and causing the other driver to stop
suddenly to avoid a collision. This constituted a separate offense of making an unsafe
lane change. At this point the officer classified Kennedy's behavior as reckless driving.
Kennedy then continued by failing to yield the right of way as his vehicle returned to the
lanes of traffic. Subsequently, Kennedy passed a vehicle by using the center "suicide
lane" to pass. He then continued to straddle the lanes of traffic. Even though Corey
testified that he thought something else might be going on, at the time of the stop he
knew he had observed several traffic violations. Kennedy did not dispute this driving
behavior. In fact, he was charged with reckless driving and pleaded no contest to reckless
driving. Accordingly, Corey was justified in arresting Kennedy because he observed a
misdemeanor being committed in his presence.

Given that Kennedy was legally under arrest, the district court erred in granting his
motion to suppress and we reverse and remand for further proceedings.

Reversed and remanded.