A divided panel of the Kansas Court of Appeals has upheld 2-1 a trial court that had earlier found that an officer had unreasonably used race in deciding to initiate an enforcement action.
K.S.A. 22-4609 says: “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.”
In 2017, an officer was sent to an apartment complex on a theft call. No suspect information had been provided. As the officer exited his car in the complex parking lot, the officer testified that he detected the odor of marijuana. In a nearby SUV with its windows rolled down were two African-American men. The officer called out to the men, “You guys call?’ “No, sir” was the response.
The panel majority said: “Taking a step towards the apartment building, [the officer] turned back towards the SUV, and while walking about eight steps to the passenger door, asked, ‘Where you all from?’ He received a reply, ‘Not here.’ When the driver, later identified as Gill, started to drive away, [the officer] let Gill know that he was not free to leave and that he had to answer [the officer’s] questions: ‘Hold on. I’m talking to you . . . Because I got called out to this area . . . I know you didn’t call me. Put the vehicle in park.’ At this point, [the officer] began addressing Gill as ‘dude’ and although Gill had not committed a traffic violation and seemingly was lawfully parked, [the officer] demanded Gill’s driver’s license and proof of insurance ‘because I’m asking for it.’ Eventually, after about another 39 seconds and some 94 seconds after the encounter started, [the officer] stated that he could smell marijuana in the SUV. [A backup officer] arrived five minutes later and [the first officer] told [the backup officer] why he walked over to the SUV – ‘I’m out here for a theft case. I pull up in my vehicle and these two are staring at me hard and start looking back so I start walking over here.”
A search of the SUV found 18 individually wrapped baggies of marijuana. Upon being charged, Gill filed a suppression motion alleging race-based policing had been unreasonably used in the officer’s decision to initiate the enforcement. At the suppression hearing, the trial judge found that 1) the officer had not approached the SUV because of the theft investigation; and, 2) the officer’s testimony concerning the point in time when he smelled marijuana was not credible because from where the officer’s patrol car was located, the odor of marijuana could have come from a different car parked closer to the officer or from the nearby apartment complex.
Based on that trial court finding, the panel majority held that since neither the theft investigation nor the odor of marijuana were reasons for the enforcement action, then the reason must have been the officer’s statement, “These two are staring at me hard.” Supporting that belief was the officer having “contemptuously refer[red] to Gill as ‘dude.”
The dissenting member of the panel said hold on a minute: “. . . I draw a completely different conclusion from the evidence as the district court did. There is simply no evidence of racial animus . . . there is no evidence in the record on appeal establishing that ‘staring at him hard’ equates to a race-based decision to initiate law enforcement action. There is no testimony that [the officer] approached the vehicle because its occupants were African-American, nor is there testimony that such a statement is jargon or code for a race-based foundation of the stop. I view the words ‘staring at him hard’ in this context as possible evidence of a guilty mind on the part of Gill instead of racial animus. Although the district court said that [the officer] should have investigated the apartment complex and another vehicle – which appears to have been unoccupied with closed windows – before investigating whether the smell of marijuana was emanating from Gill’s vehicle, this is not a requirement the Kansas Supreme Court has placed on officers . . . the district court and the majority seem to view these four words [staring at him hard] in isolation from [the officer’s] entire statement. [The officer] stated, ’I’m out here for a theft case. And I pull up in the vehicle. These two are staring at me hard and then start looking back so I start walking over here – I smell the odor of marijuana.’ And the back up officer, who was approximately 8 to 10 feet away from Gill’s vehicle, replied, ‘Jesus, I can smell it from here.”
The dissenting judge was not done: “[a]nd no reasonable person could construe [the officer’s] use of the term “dude” when addressing Gill as racially insensitive . . the majority’s suggestion that [the officer] may have been motivated by his ‘implicit bias’ is also completely unsupported by the record.”
As of this writing, the State has not requested review by the Kansas Supreme Court.
What really makes this case extra hard for the State was the trial court’s officer credibility finding. When the marijuana odor was removed from the equation, the argument became very difficult.
That all said, here is another point in the case worth mentioning: a court can suppress evidence for violation of K.S.A. 22-4609 even when the violation does not involve the Exclusionary Rule and the Fourth Amendment (search and seizure). The Kansas Supreme Court held in an earlier case that K.S.A. 22-3216(1) can be used to suppress evidence in a biased-based policing matter. Remember that in this case the argument was not a search and seizure violation, rather it was a violation of the biased-based policing statute – the unreasonable initiation of enforcement.