State v. GrayState v. Gray
K.S.A. 22-3216(1) , which permits a defendant aggrieved by an unlawful search and seizure to move to suppress evidence, provides a suppression remedy for a violation of Kansas’ biased-based policing statutes,K.S.A. 2014 Supp. 22-4606 et seq.- A district judge considering a motion to suppress based on an alleged violation of Kansas’ biased-based policing statutes,
K.S.A. 2014 Supp. 22-4606 et seq., must examine more than a law enforcement officer‘s ultimate justification for a traffic stop—i.e., more than whether the officer observed a traffic offense. The judge must consider whether the officer unreasonably used race, ethnicity, national origin, gender, or religion in deciding to initiate the enforcement action. K.S.A. 22-3216(2) requires a motion to suppress to be in writing and to state facts showing that a search and seizure were unlawful. Thus, a defendant asserting biased-based policing in violation ofK.S.A. 2014 Supp. 22-4606(d) and22-4609 must state that the defendant‘s race, ethnicity, national origin, gender, or religion was unreasonably used by a law enforcement officer in deciding to initiate a traffic stop.- Under
K.S.A. 22-3216(2) , once a defendant has filed a motion to suppress stating the basis for the claim that a search and seizure were unlawful, the State has the burden of proving that the search and seizure were lawful. To meet this burden when a defendant has alleged a violation ofK.S.A. 2014 Supp. 22-4606(d) and22-4609 , the State must establish that neither race, ethnicity, national origin, gender, nor religion were unreasonably used by a law enforcement officer in deciding to initiate an enforcement action.
Review of the judgment of the Court of Appeals in 51 Kan. App. 2d 1085, 360 P.3d 472 (2015). Appeal from Harvey District Court; JOE DICKINSON, judge. Opinion filed October 27, 2017. Judgment of the Court of Appeals affirming in part and reversing in part the district court is reversed on the issues subject to our review. Judgment of the district court is reversed on the issues subject to our review, and the case is remanded with directions.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Jason R. Lane, chief deputy county attorney, argued the cause, and David E. Yoder, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.:
We have not had occasion to consider the biased-based policing statute and the suppression statute together. In State v. Gray, 51 Kan. App. 2d 1085, 360 P.3d 472 (2015), a panel of the Kansas Court of Appeals agreed with Gray‘s legal theory that these two statutes provide a suppression remedy for unlawful biased-based policing. Yet the panel affirmed the denial of Gray‘s motion to suppress because substantial competent evidence supported the district judge‘s determination that Gray was not actually stopped because of his race. 51 Kan. App. 2d at 1092-97. Gray petitioned this court for review of the panel‘s decision.
We first determine that the Court of Appeals and district court correctly concluded that Kansas law provides a suppression remedy for a violation of the biased-based policing
FACTS AND PROCEDURAL HISTORY
This appeal focuses on Gray‘s motion to suppress and the evidence presented at the hearing on that motion.
The State called Deputy Brandon Huntley of the Harvey County Sheriff‘s Office, who had arrested Gray. The deputy saw a Ford Focus driving north on Interstate 135 (I-135) between Wichita and Newton at approximately 2 a.m. on November 10, 2013. The deputy decided to follow the car; he explained he initially had no reason for doing so other than the fact the car was there. He ran a check on the license plate and learned it was registered to a woman in Salina. The deputy explained that he continued to follow the car because, through his “extensive experience with drug interdiction, specifically on I-135, [he had] often found . . . narcotics or illegal narcotics trafficking from Sedgwick County or the City of Wichita to Saline County or the City of Salina.” On cross-examination, he affirmed he did not automatically assume every car traveling north through Harvey County with a Saline County tag was involved in drug activity. In this case he was suspicious, however, noting that the car‘s travel circumstances were among the “many indicators.” The deputy acknowledged the driver did not speed, change speed, or take evasive action when the driver might have observed the patrol car.
At Newton, the Ford Focus exited I-135, and the deputy followed. As the Ford Focus drove through a roundabout with street lighting, the deputy could see that the driver, later identified as Gray, was male. The deputy testified he had “often found in [his] experience in drug interdiction” that male drivers of vehicles registered to women “are involved in illegal activity or criminal activity because they don‘t want to be attached or their name to be attached to anything.” The deputy became more suspicious when Gray drove to a gas station, where he pulled up to the pumps on what the deputy incorrectly believed to be the side of the car without the gas cap. Gray exited the car and went inside without pumping gas. The deputy testified that it was at this point he first observed that Gray was African-American. When Gray walked back to his car, he looked around 360 degrees, got into the Ford Focus, and stayed there for a minute before driving away.
The deputy followed the car. During his testimony, he admitted he was looking for a traffic infraction to pull the car over and, although the driver made several turns without incident, at a final turn the deputy observed a failure to signal. The deputy activated his sirens and stopped the car. During Gray‘s testimony, he insisted he had turned on his turn signal. On further questioning, however, Gray admitted that on the last turn he did so only after he reached the intersection; he did not signal during the last 100 feet before the turn.
Gray testified that after he was pulled over he told the deputy he believed he had been a victim of racial profiling. According to Gray, the deputy said, “I‘m just doing my job.” Gray initially gave the deputy false information about his identity and later attempted to run away. The deputy and a Newton police officer, who had responded as backup, apprehended Gray and placed him under arrest. The deputy then learned Gray‘s identity and determined he had outstanding out-of-state warrants and a suspended driver‘s license. The police officer transported Gray to the Harvey County Detention Center and found marijuana and cocaine on Gray.
After Gray was charged, he filed the motion to suppress that is the subject of this appeal. In the written motion, he generally argued he had been subject to an “illegal traffic stop and detention.” The written motion did not assert the issue now before us—
The district judge, after hearing the deputy‘s and Gray‘s testimony, denied Gray‘s motion to suppress. The district judge initially stated “the only issue is whether or not there‘s a traffic infraction” because Kansas courts had sanctioned pretextual stops as long as the driver had committed a traffic infraction. The judge noted that the deputy testified there was no turn signal at all—a fact Gray disputed, although his own testimony established he at least did not signal before the turn, as the law required. See
Gray then indicated he wished to preserve an additional argument for appeal, and he asked the judge to consider whether there was “any racial profiling involved in the stop.” He referenced
Gray‘s case proceeded to a bench trial, where the parties stipulated to the admission of the evidence and exhibits presented at the suppression hearing, the deputy‘s police report, and the Kansas Bureau of Investigation‘s laboratory report. Because our decision focuses on the suppression issues, we will not recount the full evidentiary record. In short, the district judge convicted Gray of possession of cocaine, felony possession of marijuana, two counts of obstruction or interference with a law enforcement officer, driving with a suspended license, and a turn signal violation. The district judge sentenced Gray to a controlling sentence of 26 months’ imprisonment.
Gray appealed and raised three issues before the Court of Appeals: (1) whether the district judge erred in denying Gray‘s motion to suppress; (2) whether there was sufficient evidence supporting Gray‘s convictions for felony interference with a law enforcement officer; and (3) whether the district judge had jurisdiction to convict Gray of felony possession of marijuana. The Court of Appeals ruled in Gray‘s favor on Issue 2—the sufficiency of the evidence challenge—and “reverse[d] Gray‘s convictions of two counts of felony interference with law enforcement and remand[ed] with directions for the district court to resentence Gray for the misdemeanor [interference with law enforcement] convictions.” Gray, 51 Kan. App. 2d at 1100. Neither Gray nor the State has sought further review of this ruling, and so we do not consider it. See
ANALYSIS
1. We cannot determine whether the district court applied the correct test to Gray‘s argument that a statutory violation created a possible suppression remedy.
Before reaching the substance of Gray‘s argument, we pause to clear a few preliminary matters out of the path. Before the Court of Appeals, the State argued Gray failed to preserve his biased-based policing argument for appeal because he did not mention it or cite the relevant statutes in his written motion to suppress. The Court of
Although the State has again raised its preservation argument before us at oral argument, we note that the State did not cross-petition for review. This failure means the Court of Appeals’ preservation conclusion is not properly before us, and we will not consider it. See
Another preliminary consideration: This appeal differs from typical suppression issues based on alleged violations of the Fourth Amendment to the United States Constitution. Gray does not make a constitutional argument nor does he seek suppression under the court-imposed exclusionary rule designed to protect Fourth Amendment rights. See Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) (extending the constitutional federal exclusionary rule to the states via the Fourteenth Amendment); Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 640, 176 P.3d 938 (2008) (discussing history and purposes of judicially imposed exclusionary rule), overruled on other grounds by City of Atwood v. Pianalto, 301 Kan. 1008, 1011-13, 350 P.3d 1048 (2015).
This understanding impacts our analysis in two respects. First and most obviously, we do not decide any constitutional issues here. See Whren v. United States, 517 U.S. 806, 810, 813, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (holding [1] a traffic-violation arrest does not violate the Fourth Amendment to the United States Constitution simply because “it was ‘a mere pretext for a narcotics search‘” and [2] “the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment“); see also Holland, Racial Profiling and a Punitive Exclusionary Rule, 20 Temple Political & Civil Rights L. Rev. 29 (2010) (gathering and discussing post-Whren cases brought under the Equal Protection Clause of the Fourteenth Amendment). Second, limiting our consideration to statutory, rather than constitutional, provisions means our analysis diverges from that used in a typical case involving appellate review of a motion to suppress.
While we will discuss some of these differences later on in our decision, we note here the impact on our standard of review: The circumstances of this case require us to step back from the traditional vantage point from which we review a district judge‘s ruling on a motion to suppress. See State v. DeMarco, 263 Kan. 727, 732, 952 P.2d 1276 (1998) (appellate courts “review the factual underpinnings of the district court‘s suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard“). This deviation occurs because Gray presents arguments of first impression regarding the test to be applied under Kansas’ biased-based policing statutes,
We exercise unlimited review over issues of statutory interpretation. In re Marriage of Brown, 295 Kan. 966, 969, 291 P.3d 55 (2012). Legislative intent governs that review, and “[r]eliance on the plain and unambiguous language of a statute is ‘the best and only safe rule for determining the intent of the creators of a written law.‘” State v. Spencer Gifts, 304 Kan. 755, 761, 374 P.3d 680 (2016) (quoting Merryfield v. Sullivan, 301 Kan. 397, 399, 343 P.3d 515 [2015]). Therefore, we read the statutory language as it appears, without adding or deleting words, and only “[i]f the language is less than clear or is ambiguous, [do] we move to statutory construction.” Ambrosier v. Brownback, 304 Kan. 907, 911, 375 P.3d 1007 (2016). If a statute is not ambiguous, we do not examine “legislative history, background considerations that speak to legislative purpose, or canons of statutory construction.” In re Marriage of Brown, 295 Kan. at 969.
1.1. Remedy for violation of K.S.A. 2014 Supp. 22-4606(d) and 22-4609
We, as did the Court of Appeals, begin our analysis with the question of whether a statutory suppression remedy under
Our sparse caselaw on this subject accords with our plain language determination. The one case that appears to have applied
Vrabel, like Sodders, involved a motion to suppress where a defendant challenged evidence of a controlled drug buy that was set up by law enforcement officers outside their city boundaries—and arguably outside their statutorily limited jurisdiction. This court agreed with the district court that the law enforcement officers acted in violation of the police jurisdiction statute, but we were less sure about the district court‘s decision to therefore suppress the evidence. Vrabel, 301 Kan. at 808-09.
We ultimately ruled that Vrabel was not a search and seizure case at all, and thus there was no statutory suppression remedy to consider. Vrabel, 301 Kan. at 810; see
We found Hawaii‘s “rationale of maintaining the integrity of the judicial process by refusing to justify and condone tainted evidence . . . mildly seductive.” Vrabel, 301 Kan. at 812. But the police jurisdiction statute involved in Vrabel “was put in place to protect the local autonomy of neighboring
The reasons for our reservations in Vrabel do not apply in this case. Here, we clearly have a seizure followed by a search. See Whren, 517 U.S. at 809-10 (“Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment]. . . . An automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances.“); DeMarco, 263 Kan. at 733 (“A routine traffic stop is a seizure under the Fourth Amendment.“).
Consequently,
In summary, the Kansas Legislature has tied the suppression remedy to one consideration and one consideration alone: Was there “an unlawful search and seizure?” (Emphasis added.)
1.2. Violation of K.S.A. 2014 Supp. 22-4606(d) and 22-4609
Although we hold Gray could pursue a suppression remedy for a statutory violation, that is quite different from an inquiry into whether he should have received such a remedy in this case—and what framework the district judge should have used in evaluating Gray‘s claim.
Those inquiries begin with
“It is unlawful to use racial or other biased-based policing in:
“(a) Determining the existence of probable cause to take into custody or to arrest an individual;
“(b) constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a vehicle; or
“(c) determining the existence of probable cause to conduct a search of an individual or a conveyance.”
Considering this language alone, a court could arguably conclude that so long as an officer observed someone committing a traffic or other offense, then a stop was legal. See State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006) (For Fourth Amendment purposes “[a] traffic violation provides an objectively valid reason to effectuate a traffic stop, even if the stop is pretextual.“); see also Whren, 517 U.S. at 814, 819 (“[W]hatever the subjective intent” of officers they “had probable cause to believe that petitioners had violated the traffic code,” which “rendered the stop reasonable under the Fourth Amendment, [and] the evidence thereby discovered admissible.“). In other words, a stop would be lawful if an officer stopped a vehicle because of the traffic violation, not because of the driver‘s race, ethnicity, national origin, gender, or religion.
At least facially, that is what the district court and Court of Appeals concluded. The district judge found “there was nothing on the record that [he] heard that would lead [him] to believe that Mr. Gray was stopped because he was black.” Likewise, the Court of Appeals concluded this finding demonstrated the district judge found Deputy “Huntley‘s testimony credible that he did not stop Gray because of his race.” 51 Kan. App. 2d at 1097.
We read
Here, the Court of Appeals recognized the impact of
This evidence, the Court of Appeals concluded, provided substantial competent evidence to support the district judge‘s findings that Gray was not stopped because of his race. Gray, 51 Kan. App. 2d at 1094-97. The Court of Appeals ultimately accepted the district court‘s conclusion and affirmed that race did not “cause” the stop.
Nevertheless, these conclusions about the cause of the stop are simply not nuanced enough to encompass whether race was used by the deputy in his decisionmaking process. Race may not have caused the traffic stop—i.e., it may not have produced the result. See Black‘s Law Dictionary 265 (10th ed. 2014) (defining “cause“). In fact, the stop may have occurred even if Gray‘s race had not been identifiable. See Black‘s Law Dictionary 265 (defining “actual cause” as “but-for cause,” meaning “[t]he cause without which the event could not have occurred“). But race still may have been employed, or used, as a factor in the deputy‘s decision, and race may have given weight to those but-for reasons the deputy identified as the causes for his decision to initiate the traffic stop.
Granted, the district judge did find that the deputy “wanted to stop the car because of other reasons . . . but they didn‘t have anything to do with Mr. Gray being black.” But this statement was bookended by the judge‘s findings that nothing “would lead me to believe that Mr. Gray was stopped because he was black” and “I don‘t find there‘s anything in the record Mr. Gray got stopped because he happened to be a black man.” In this context, we cannot be confident the district judge applied the correct test and evaluated whether the deputy unreasonably used race in deciding to initiate the traffic stop.
We recognize that the bias-based policing issue flew at the district judge with no warning
Gray further faults the district judge for relying too heavily on the deputy‘s statement that his suspicion did not increase when he realized Gray was African-American. He argues that “if [it] is sufficient to simply testify that race did not factor into a decision, the statute prohibiting racial profiling is left impotent.” He suggests we must “give some teeth to the Kansas statutory prohibition on racial profiling.”
To do so, Gray proposes a burden-shifting test similar to that employed in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), when a party preemptively strikes a potential juror because of his or her race or another protected characteristic. Specifically, Gray offers this procedure: “Whenever an officer makes a pretextual stop of a member of a protected class, the burden should shift to the state to show some race-neutral justification, other than the basis for the pretextual stop itself, for investigating a particular person or vehicle.”
Some parallels exist between Batson and this case. Through the Batson procedure, the United States Supreme Court hoped to curb a process that “permits ‘those to discriminate who are of a mind to discriminate.‘” 476 U.S. at 96 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S. Ct. 891, 97 L. Ed. 1244 [1953]). The legislative record surrounding the 2004 enactment of and the 2011 amendments to Kansas’ biased-based policing statutes demonstrates a legislative attempt to prevent pretextual traffic stops from being a process that permits bias to interfere with the fair and equal enforcement of laws—that is, similar enforcement regardless of the offender‘s race, ethnicity, national origin, gender, or religion. See, e.g., Minutes, Hearing Before the Senate Federal and State Affairs Comm., 2005 Legislative Session (Feb. 3, 2005; Feb. 9, 2005; Feb. 22, 2005); Conference Committee Report Brief, Senate Bill No. 77 (March 31, 2005); 2011 Summary of Legislation, Racial and Bias-Based Policing—SB 93; Minutes, Hearing Before the Senate Federal and State Affairs Comm., 2011 Legislative Session (Feb. 9, 2011; Feb. 10, 2011); Minutes, Hearing before the House Judiciary Comm., 2011 Legislative Session (March 16, 2011); Supplemental Note on Senate Bill No. 93, as amended by House Committee of the Whole, 2011 Legislative Session.
Furthermore, both the practices discussed in Batson and the alleged conduct in this case create harm “extend[ing] beyond that inflicted on the defendant” that “touch the entire community,” as they “undermine public confidence in the fairness of our system of justice.” Batson, 476 U.S. at 87, 96. Consequently, the goals of both processes are similar.
Nevertheless, Gray has failed to persuade us a unique process is necessary here, especially in light of the procedures put in place by
After this first step in the motion to suppress process, the suppression statute provides that “the burden of proving that the
Gray asks us to go a step further and essentially end all pretextual traffic stops by requiring the officer to provide a basis for an articulable belief that the driver was committing a crime other than a traffic offense. The United States Supreme Court decided not to take a similar step in Batson, stating: “[W]e emphasize that the prosecutor‘s explanation need not rise to the level justifying exercise of a challenge for cause.” 476 U.S. at 97. Likewise, we stop short of requiring an officer to articulate grounds separate from a traffic offense as the “but-for” cause of the stop. The biased-based policing statutes do not require this result. Instead they prohibit the unreasonable use of race in deciding to initiate a pretextual enforcement action.
This means that ultimately, at least in many cases, the determination of whether an officer unreasonably used race will largely depend on credibility—a weighing-of-the-evidence process that is already quite familiar to district judges. As with any credibility assessment, a district judge must weigh surrounding facts and circumstances along with a witness’ statements. In a case like Gray‘s, where the defendant urges suppression based on an unlawful (but not unconstitutional) search or seizure, a district court cannot focus on whether a traffic violation caused or justified a pretextual stop. Instead, the district court must consider whether race, national origin, ethnicity, gender, or religion was unreasonably used in deciding to initiate the enforcement action. This means that a judge will consider any reasons proferred by the State as to why a particular traffic signal violation was enforced and determine whether those reasons credibly, fairly, and uniformly would result in decisions to initiate traffic stops regardless of a driver‘s race, ethnicity, national origin, gender, or religion.
We simply cannot determine from the record whether this is the assessment made by the district judge in this case. We, therefore, vacate Gray‘s convictions and remand Gray‘s case to the district court for another hearing on Gray‘s motion to suppress. We express no opinion as to the outcome of that hearing and only instruct that the district court should consider whether the State met its burden of “proving that the search and seizure were lawful,” taking into account the language of
2. We do not reach the question of whether the district court had jurisdiction to convict Gray of felony possession of marijuana.
Gray additionally argues the State failed to properly charge him with felony possession of marijuana because, while the charging document stated Gray possessed marijuana, it did not allege Gray had at least one prior conviction for possession of marijuana. He contends this oversight rendered the district court without jurisdiction to convict and sentence Gray for felony possession of marijuana, as at most the charging document only charged misdemeanor possession of marijuana.
Because we have vacated Gray‘s convictions we need not reach this issue. As guidance on remand, we note that since the Court of Appeals considered this issue, this court decided State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). As Gray‘s counsel conceded at oral argument, Dunn must frame any arguments made by the parties on remand and must guide the district court‘s decision.
The Court of Appeals decision on the issues before us is reversed. The district court‘s judgment on those issues is reversed and the case is remanded for further proceedings in accordance with this decision.
MARLA J. LUCKERT
JUSTICE OF THE SUPREME COURT OF KANSAS