Trаcey A. Young appeals his convictions of one count of possession of methamphetamine and one count of possession of drug paraphernalia. Young claims the district court erred in denying his motion to suppress evidence. Young had been approached by a police officer in a city park, and he consented to a search of his person, which led to his arrest. This case raises a single issue: Was Young’s contact with the police officer a voluntary encounter or an investigatory detention?
The facts are undisputed. While on routine patrol in the evening of February 25, 2005, Officer Brian Rousseau saw Young and Richard Beatty in a city park in Newton, Kansas. From his patrol vehicle, Rousseau observed Beatty hand something to Young, and the two men parted ways. Rousseau had prior contacts with Beatty and knew that he was involved with illegal drugs. Based on his observation of the exchange, Rousseau believed he may have witnessed a drug transaction.
Rousseau continued to observe Young as he walked through the park. Prior to Young leaving the park, Rousseau exited his vehicle and approached him on foot. According to Rousseau’s testimony, the following exchange took place:
“Q. [By the State] Officer Rousseau, when you made contact with Mr. Young, what happened then?
“A. I asked him what was up, what was going on, where he was headed. He told me his girlfriend’s house. I asked where he was coming from, he said his apartment complеx on Boyd.
“Q. Okay. Did you — during your conversation with Mr. Young did you ob— did anything catch your attention?
“A. While speaking with him I smelled a pretty strong odor of marijuana emitting from his person.
“Q. What did that prompt you to do?
“A. Based on what I observed between him and the — the subject who was later identified as Richard Beatty, I asked him if he had anything illegal on his person.
“Q. What did he say?
“A. He stated no.
*702 “Q. What did you ask him after that?
“A. I asked him if he minded if I could search him.
“Q. And what were you searching for, did you tell him that?
“A. I just asked him if I could search him for illegal contraband.
“Q. And what was his response to that?
“A. He said I could search him.
“Q. Okay. What did you do after you received permission to search his person?
“A. Um, I felt on the outside of his right front pocket and, uh, while searching or feeling that pocket I felt a long tube in his pocket. I asked him what it was.
“Q. Okay. What did he tell you it was?
“A. Well, he stated it was — It’s a pen.
“Q. [By the State] What happened after that?
“A. I asked him if I could remove the pen from his pocket.
“Q. Did he allow you to do that?
“A. Yes, he did.
“Q. Did he give you permission to do that?
“A. Yes, he did.
“Q. When you removed — what was it when you removed it?
“A. It was just a hollowed ink tube cartridge just where there was no — just a pen without the ink cartridge in it.
“Q. Okay. Anything about that catch your attention, Officer?
“A. Uh, based on my training and experience, that’s a common tiling that people use to ingest illegal narcotics. Also inside the tube I saw white residue within the tube.
“Q. And based on your training and experience what did you believe this white residue to be?
“A. It was either metliamphetamine or cocaine.”
Rousseau testified that the hollow ink tube field tested positive for methamphetamine and Young was placed under arrest.
Young was charged with one count of possession of methamphetamine and one count of possession of drug paraphernalia. Young filed a motion to suppress the evidence seized from his person. The district court held an evidentiary hearing in which Rousseau was the only witness who testified. After hearing the evidence, the district court denied the suppression motion. The district court found that Rousseau did not have reasonable suspicion of criminal activity to detain Young, but the court found that Young had voluntarily consented to the search during a voluntary encounter with Rousseau.
*703 The case proceeded to a bench trial on stipulated facts consisting of the suppression hearing transcript, police reports of the arrest, and KBI lab reports. Young preserved his motion to suppress and continued to object to the admission of any physical evidence taken by the police and any statement he may have made at the time of the search. The district court found Young guilty as charged. Young timely appeals.
Young claims the district court erred in denying his motion to suppress evidence. Young maintains his encounter with Rousseau was not voluntаry. Rather, Young asserts he was seized by Rousseau without reasonable suspicion of criminal activity thereby making his detention illegal. The State maintains the contact between Young and Rousseau was a voluntary encounter, which is not considered a seizure under the Fourth Amendment to the United States Constitution.
In reviewing a district court’s decision regarding suppression of evidence, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.
State v. Ackward,
The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Section 15 of the Kansas Constitution Bill of Rights contains similar language and “provides protection identical to that provided under the Fourth Amendment to the United States Constitution. [Citation omitted.]”
State v. Morris,
There are four types of police-citizen enсounters. The first type is a voluntary encounter, which is not considered a seizure under
*704
the Fourth Amendment.
State v. Hill,
Courts have sometimes struggled with the distinction between a voluntary encounter and an investigatory detention. Both instances involve contact between a law enforcement officer and a citizen, usually precipitated by the law enforcement officer. However, in a voluntary encounter, the citizen is always free to leave or terminate the encounter.
State v. McKeown,
United States Supreme Court decisions
In
Florida v. Royer,
In examining the nature of the contact between the defendant and the detectives, the Supreme Court recognized that law enforcement officers may engage in voluntary encounters with citizens in public places:
“[L]aw enforcement officers do not violate die Fourth Amendment by merely approaching an individual on the street or in another public place, by аsking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. [Citations omitted.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [Citation omitted.] The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations omitted.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citation omitted.] If there is no detention — no seizure within the meaning of the Fourth Amendment — then no constitutional rights have been infringed.”460 U.S. at 497-98 .
The Supreme Court ultimately determined that when the detectives asked the defendant to accompany them to tire separate
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room while retaining his ticket and drivers license, the defendant was effectively seized for Fourth Amendment purposes.
“We do not suggest that there is a litmus-paper test for distinguishing a consensual encоunter from a seizure or for determining when a seizure exceeds the bounds of an investigative stop. . . . [T]here will be endless variations in the facts and circumstances, so much variation that it is unlikely that the courts can reduce to a sentence or a paragraph a rule that will provide unarguable answers to the question whether there has been an unreasonable search or seizure in violation of the Fourth Amendment.”460 U.S. at 506-07 .
The Supreme Court reaffirmed the voluntary encounter principles from
Royer
in
Florida v. Bostick,
The Florida Supreme Court ruled the encounter was an illegal detention, focusing on the fact that the defendant’s movements were confined because he was a passenger on a bus. The United States Supreme Court rejected this analysis and stated:
“There is no doubt that if this same encounter had taken place before Bostick boarded thе bus or in the lobby of the bus terminal, it would not rise to the level of a seizure. The Court has dealt with similar encounters in airports and has found them to be ‘the sort of consensual encounter[s] that implicate] no Fourth Amendment interest.’ [Citation omitted.] We have stated that even when officers have no basis for suspecting a particular individual, they may generally ask questions *707 of that individual, [citations omitted]; ask to examine the individual’s identification, [citations omitted]; and request consent to search his or her luggage, [citation omitted] — as long as the police do not convey a message that compliance with their requests is required.”501 U.S. at 434-35 .
In Bostick, the Court set forth an objective standard for determining whether a seizure has occurred, and the Court emphasized the determination must be made by examining the totality of the circumstances:
“We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to encounters on a bus.”501 U.S. at 439-40 .
Applying Fourth Amendment jurisprudence to the facts in
Bostick,
die Supreme Court expressed doubt that the officers had ever seized the defendаnt. The Court noted the two officers had approached the defendant and asked for his identification, ticket, and consent to search his luggage. There was no evidence of any overt acts of intimidation or coercion. However, because the Florida trial court had not made express findings of fact, the Supreme Court remanded the case for further findings regarding whether the officers had seized the defendant under the totality of the circumstances.
In another case,
Ohio v. Robinette,
The Ohio Supreme Court held the search resulted from an unlawful detention and adopted a bright-line rule that citizens stopped for traffic offenses must be clearly informed by the detaining officer that they are free to go before the offiсer can attempt to engage in a consensual interrogation. The United States Supreme Court granted certiorari and considered the issue in light of its earlier rulings in Royer and Bostick. The Supreme Court held the Fourth Amendment does not require officers to inform individuals they are free to go before engaging in consensual interrogations, preferring an inquiry based on all the circumstances surrounding the encounter:
" While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as tire sine qua non of an effective consent.’ [Schneckloth v. Bustamante,412 U.S. 218 , 227,36 L. Ed. 2d 854 ,93 S. Ct. 2041 (1973)]. And just as it would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,’ [412 U.S.] at 231, so too would it be unrealistic to require police officers to always inform detainees that they are free to go before a consent to search may be deemed voluntary.”519 U.S. at 39-40 .
It should be noted that on remand, the Ohio Supreme Court still suppressed the evidence discovered inside the defendant’s car. The court found the officer did not have reasonable suspicion of criminal activity to detain the defendant beyond the traffic stop and determined the defendant’s ultimate consent to the car search was involuntary under the totality of the circumstances.
State v. Robinette,
Royer, Bostick, and Robinette clearly endorse the concept that law enforcement officers may engage in voluntary encounters with citizens in public places. An officer does not need reasonable suspicion оf criminal activity in order to engage a citizen in a voluntary encounter. An encounter between a citizen and a law enforcement officer in a public place is considered voluntary as long as a reasonable person would feel free to decline the officer’s requests for information or otherwise terminate the encounter. This determination must be made by examining the totality of the circum *709 stances. The officer is not required to inform the citizen that he or she is free to go before an encounter can be considered voluntary, but this is one factor to be considered under the totality of the circumstances.
Kansas decisions
The Kansas Supreme Court acknowledged the concept of a voluntary encounter in
McKeown,
The Kansas Court of Appeals addressed the constitutionality of a voluntary еncounter in
State v. Crowder,
On appeal, the defendant argued the officers had seized him and his consent to the search was not voluntary due to the coerciveness of the encounter. However, the court considered the encounter voluntary and stated:
“Crowder contends that he did not believe he could end the contact with the officers because there were two of them, armed and in unifоrm, and neither informed him that he was free to leave. Crowder cites U.S. v. Ward,961 F.2d at 1259 , and U.S. v. Bloom,975 F.2d 1447 (10th Cir. 1992), for the proposition that these factors establish the coerciveness of tire encounter. While some of these factors are present in Ward and Bloom, the court in both cases relied heavily on the fact that the ‘seizures’ took place in a private compartment on a railroad car and that the officers asked ‘ “focused, potentially incriminating questions.” ’975 F.2d at 1454 .
“Neither of these factors is present here. While it is true that there were two officers with Crowder, the contact occurred in a public place and the officer’s request for Crowder’s name was neither coercive nor incriminating. [Citation omitted.]
“Crowder correctly argues that the officers’ unspoken belief that Crowder was free to go does not preclude the existence of a seizure. Likewise, an individual’s view of the situation colored by his or her fear of being caught engaging in criminal activity cannot be grafted onto an otherwise innocent encounter to convert it into a seizure. [Citation omitted.]”20 Kan. App. 2d at 121 .
Thus, the court affirmed the denial of the defendant’s suppression motion, finding the defendant’s consent was voluntary under the totality of the circumstances.
The Kansas Supreme Court upheld a voluntary encounter in
State v. Reason,
The Kansas Supreme Court disсussed the United States Supreme Court holdings in
Royer
and
Bostick
and determined the police contact began as a voluntary encounter when the officers first approached the parked vehicle to check on the occupants.
The court determined the defendant’s consent to the search was voluntary under the circumstances. The court noted there was no taint to purge from the consent because there had been no illegal detention.
“The ‘free to go’ signal is a factor in determining whether [the defendant] objectively felt under police coercion at the time оf his consent. Even if [the officer] had failed to tell [the defendant] he was free to go before requesting consent to the search, that may not necessarily have invalidated the consent. [Citations omitted.]”263 Kan. at 414 .
In
State v. Grace,
The Court of Appeals suppressed the evidence on the ground that the defendant had been detained without reasonable suspicion of criminal activity, and the illegal detention tainted the defendant’s consent to the search, thereby making the consent involuntary. In reaching this result, the court determined the defendant’s prolonged detention converted what may have been a voluntary encounter intо an investigatory detention:
“Even if the officers’ initial approach of [the defendant] and the other occupants of the car did not qualify as a stop, the continued interaction for approximately 25 minutes while the warrant checks were run converted what could have been characterized as a voluntary encounter into an investigatory detention. Although officers are entitled to approach a stopped car and ask a few questions, [citations omitted], they clearly did more than that here.”28 Kan. App. 2d at 458 .
In
State v. Morris,
In evaluating the nature of the encounter, the court determined that a seizure occurs when “there is the application of physical force” or when “there is a show of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave [citation omitted] and the person submits to the show of authority. [Citation omitted.]”
We conclude our review of cases with
State v. Lee,
On appeal, the Kansas Supreme Court found the police officers’ contact with the defendant was a voluntary encounter. 283 Kan.
*714
at 777. The court determined that a reasonable person in the defendant’s situation would have felt free to disregard the officers and go about his or her business. The court noted that even though there were two officers, there was no evidence the officers displayed their weapons, physically restrained the defendant, or spoke with a commanding tone of voice.
Young’s encounter
Turning tо the facts of this case, Young claims his encounter with Rousseau was a seizure rather than a voluntary encounter. Young contends Rousseau exerted three separate displays of authority which communicated that Young was seized: (1) Rousseau was wearing his police uniform and weapon, (2) Rousseau blocked Young’s path of travel, and (3) Rousseau demanded that Young answer questions.
There is simply nothing in the record to support Young’s last two contentions. Rousseau’s testimony at the suppression hearing was undisputed. The evidence indicated that Rousseau exited his vehicle and approached Young on foot before he left the city park, but there was no evidence that Rousseau blocked Young’s path or prevented him from leaving. There was also no evidence that Rousseau demanded that Young answer any questions. Rousseau’s testimony, set forth verbatim in this opinion, reflects that Rousseau *715 only asked questions of Young, and he did not give any orders or make any demands for Young to answer.
This leaves the fact that Rousseau was wearing his police uniform and weapon as the only display of authority. Young argues that a “police uniform is a display of authority, and should be taken into account in determining whether a police-citizen encounter is voluntary.” However, the mere fact that an officer is in uniform and carrying a weapon does not render the encounter coercive. See
Bostick,
In determining that the encounter between Rousseau and Young was voluntary, the district judge found:
“Under the facts and circumstances elicited at the hearing, I cannot find that the officer’s actions conveyed a message that compliance was required. The officer made no threats or show of force, or coercion, other than his mere presence in a uniform. . . .
“The defendant may have felt or thought he had to comply with the officer’s requests, however, the officer took no action to lead to such a mistaken belief. The officer asked, and did not demand or require the defendant to comply.”
The district court’s findings are supported by the record. The facts here are similar to the facts in
Lee
and possibly even less characteristic of a seizure than the facts in
Lee
because Young was approached in a park by only one officer. Rousseau did not activate the emergency lights before he exited his vehicle. Rousseau did not command Young to stop, speak in a commanding tone of voice, physically restrain Young, attempt to control Young’s ability to flee, or otherwise indicate to Young that he was not free to leave. See
Lee,
Rousseau did not inform Young that he was free to leave or that he was not required to answer any questions. However, an officer
*716
is not required to give a citizen such advice before an encounter can be considered voluntary. See
Robinette,
After Young responded to Rousseau’s initial questions, Rousseau asked for permission to search Young’s person. Young consented. The district court found Young’s consent to be voluntary:
“The defendant was asked if the officer could search and the defendant consented to the intrusion. The officer did not order him to allow the search, he simply asked. The defendant was free to say no, and absent any objective coercive behavior by the officer, there is nothing in the record to suggest the defendant’s consent was a result of improper coercion or threat.”
These findings are also supported by the record. Because Young’s detention was not illegal, there was no taint to purge from his consent.
Reason,
As the United States Supreme Court stated in
Royer,
In summary, the encounter between Young and Rousseau was voluntary when viewed objectively under the totality of the circumstances. In fact, if this encounter is not considered voluntary, it is difficult to imagine any situation that would be. Young was never seized, and his Fourth Amendment rights were not implicated. The search of Young’s person was lawful based on his voluntary consent. Accordingly, the district court did not err in denying Young’s motion to suppress the evidence.
Affirmed.