State v. Hamilton

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NOT DESIGNATED FOR PUBLICATION

No. 120,729

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JACOB W. HAMILTON,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed November 22,
2019. Affirmed.

Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellant.

No appearance by appellee.

Before SCHROEDER, P.J., PIERRON and STANDRIDGE, JJ.

PER CURIAM: In this interlocutory appeal, the State of Kansas appeals the district
court's decision to grant Jacob W. Hamilton's motion to suppress evidence. We affirm
suppression of the evidence but for reasons different than those relied on by the district
court.




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FACTS

The facts in this case are undisputed. On December 16, 2017, Hutchinson Police
Officer Terry Martin was dispatched to the Sunflower Inn following a report of a
disturbance there. On arrival, Martin spoke with Marina Benewiat, a hotel employee, who
said that guests were complaining about an argument or commotion in the hallway near
the stairs. Benewiat directed Martin and another officer to the room where Hamilton and
his wife were living at the time. There, the officers made contact with Hamilton.
Hamilton admitted to the officers that he had called his wife a "fucking bitch." Based on
this admission, Martin placed Hamilton under arrest for disorderly conduct involving
domestic violence. Inside the rear left pocket of Hamilton's jeans, law enforcement
discovered a plastic bag containing unused syringes and a clear glass smoking pipe with
burnt residue that later tested positive for methamphetamine.

The State charged Hamilton with one count each of possession of
methamphetamine, disorderly conduct, and possession of drug paraphernalia. Hamilton
filed a pretrial motion to dismiss and/or motion to suppress the evidence, alleging that
law enforcement lacked probable cause to arrest him because there was no evidence that
he had engaged in disorderly conduct.

The parties appeared before the district court for a hearing on Hamilton's motion,
where Officer Martin testified to the events as set forth above. Martin personally did not
witness the reported disturbance but claimed there was probable cause to arrest Hamilton
after learning that Hamilton had called his wife a fucking bitch. According to Martin,
Hamilton's use of the offensive term constituted fighting words that required his arrest
under domestic violence laws. Martin later spoke with Betty Widener, Hamilton's wife.
Widener agreed that Hamilton had called her the offensive term during an argument, but
she did not want Hamilton to be arrested. Widener also testified at the hearing. Widener
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said that she and Hamilton had been engaged in a mutual argument and were calling each
other names when Hamilton called her a fucking bitch.

The State asked the district court to deny Hamilton's motion to suppress, arguing
that Officer Martin had probable cause to believe that Hamilton had committed the crime
of disorderly conduct when Hamilton admitted to calling his wife a fucking bitch. The
State further argued that Hamilton's arrest was mandatory as a domestic violence crime.
In response, defense counsel claimed that Hamilton's use of the offensive term did not
constitute an arrestable offense.

After hearing testimony from the witnesses and argument from counsel, the
district court took the matter under advisement and later issued a written ruling granting
Hamilton's motion to suppress. Specifically, the court held that Hamilton's arrest was
illegal because his act of calling his wife a vulgar name during a mutual argument did not
constitute actual or threatened violence. The State filed this interlocutory appeal.

ANALYSIS

The State argues the district court erred in granting Hamilton's motion to suppress,
claiming that Hamilton's arrest was lawful and that the subsequent search of his pocket
was a valid search incident to arrest. Hamilton did not file an appellate brief in response.

When, as here, the material facts to a district court's decision on a motion to
suppress evidence are not in dispute, the question of whether to suppress is a question of
law over which an appellate court has unlimited review. State v. Cleverly, 305 Kan. 598,
604, 385 P.3d 512 (2016).

The district court granted Hamilton's motion to suppress based on a finding that
his arrest was illegal. Officer Martin arrested Hamilton for the crime of disorderly
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conduct, a misdemeanor. See K.S.A. 2018 Supp. 21-6203(b). In Kansas, a law
enforcement officer may arrest a person without a warrant if the officer has probable
cause to believe that the person is committing or has committed a misdemeanor, and the
law enforcement officer has probable cause to believe that (a) the person will not be
apprehended or evidence of the crime will be irretrievably lost unless the person is
immediately arrested, (b) the person may cause injury to themselves or others or damage
to property unless immediately arrested, or (c) the person has intentionally inflicted
bodily harm to another person. K.S.A. 22-2401(c)(2).

Rather than relying on the general arrest provisions of K.S.A. 22-2401, the State
asserts that the police in this case were acting under an affirmative duty to arrest under
K.S.A. 2018 Supp. 22-2307(b)(1) because it involved a domestic violence situation.
K.S.A. 2018 Supp. 22-2307 is a procedural statute that requires all law enforcement
offices in Kansas to adopt written policies regarding domestic violence calls. The policies
must include a statement directing officers to make an arrest, without undue delay, when
the officer determines there is probable cause to believe that a person has committed a
crime or offense involving domestic violence. K.S.A. 2018 Supp. 22-2307(b)(1).
Domestic violence is defined as "an act or threatened act of violence" or "any other crime
committed against . . . a family or household member by a family or household member."
K.S.A. 2018 Supp. 21-5111(i). The definition of "family or household member" includes
spouses. K.S.A. 2018 Supp. 21-5111(i)(2).

The district court found that Hamilton's arrest was illegal because his conduct did
not constitute an act or threatened act of violence. Although the court did not explicitly
address the State's argument that Hamilton's arrest was proper because he had committed
the "other crime" of disorderly conduct, the court appeared to implicitly reject this claim.

Disorderly conduct is defined in relevant part as "using fighting words or engaging
in noisy conduct tending reasonably to arouse alarm, anger or resentment in others."
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K.S.A. 2018 Supp. 21-6203(a)(3). The phrase "fighting words" means "words that by
their very utterance inflict injury or tend to incite the listener to an immediate breach of
the peace." K.S.A. 2018 Supp. 21-6203(c). Because the First Amendment to the United
States Constitution protects freedom of speech and prohibits states from punishing the
use of language or words except in limited circumstances, the disorderly conduct statute
has been deemed constitutional only so far as the prohibited speech constitutes fighting
words. See State v. Huffman, 228 Kan. 186, 192-93, 612 P.2d 630 (1980).

The State argues that Hamilton's arrest was required under K.S.A. 2018 Supp. 22-
2307(b)(1) because he committed the crime of disorderly conduct by using vulgar
language when arguing with his wife and by disturbing other hotel guests enough that a
hotel employee reported him to the police. To the extent that the State claims Hamilton
committed the crime of disorderly conduct by engaging in "noisy conduct tending
reasonably to arouse alarm, anger or resentment in others," Officer Martin testified that
he did not intend to make an arrest when he first approached Hamilton's room to discuss
the disturbance call. See K.S.A. 2018 Supp. 21-6203(a)(3). Martin further testified that he
only obtained probable cause to make the arrest upon learning that Hamilton had called
his wife a fucking bitch. The question before us, then, is whether Hamilton used fighting
words when he called his wife that name.

Whether language constitutes fighting words varies with each case and depends
upon the totality of the circumstances. See State v. Beck, 9 Kan. App. 2d 459, 462-63,
682 P.2d 137 (1984) (holding that defendant's use of profanity towards police officers
constituted fighting words when considering defendant's offer to fight with officers, his
resistance to officers' efforts to restore peace, and provocative nature of words
themselves). When determining whether disorderly conduct has occurred, the courts look
to "the intention of the person uttering the language, the person to whom uttered, and all
the surrounding facts and circumstances." State v. Stroble, 169 Kan. 167, 170, 217 P.2d
1073 (1950).
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Here, the surrounding facts and circumstances establish that Hamilton and
Widener were engaged in a mutual argument in a common area of the hotel. During the
argument, the couple called each other names; Hamilton called Widener a fucking bitch.
The argument was loud enough that it caused hotel guests to complain and a hotel
employee to call the police. There was no evidence of any physical altercation between
Hamilton and Widener. Nor was there any evidence that Hamilton's words were
accompanied by any threatening movement. Widener admitted to participating equally in
the argument and also confessed to calling Hamilton names. There is no indication that
Widener believed her personal safety was at risk. To the contrary, Widener told Officer
Martin that she did not want Hamilton to be arrested.

In sum, there is no evidence that Hamilton engaged in disorderly conduct by using
fighting words towards Widener. Although the phrase "fucking bitch" is offensive and
profane, when it is said in a mutual argument between a husband and wife,
unaccompanied by any physical actions or threats, the phrase does not rise to the level of
words which "by their very utterance inflict injury or tend to incite the listener to an
immediate breach of the peace." See K.S.A. 2018 Supp. 21-6203(c). Thus, Officer Martin
lacked probable cause to arrest Hamilton for disorderly conduct. As a result, the
subsequent search of Hamilton's pocket was invalid. The district court properly granted
Hamilton's motion to suppress. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516
(2015) (if district court reaches correct result, its decision will be upheld even though it
relied upon wrong ground or assigned erroneous reasons for its decision).

Affirmed.