              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                       No. 114,143

                                    STATE OF KANSAS,
                                        Appellee,

                                            v.

                                    DAVID S. HANKE,
                                      Appellant.


                             SYLLABUS BY THE COURT

1.
       When reviewing a motion to suppress evidence, an appellate court reviews the
factual underpinnings of a district court's decision for substantial competent evidence and
the ultimate legal conclusion drawn from those facts de novo. The ultimate determination
of the suppression of evidence is a legal question requiring independent appellate review.
The State bears the burden to demonstrate that a challenged search or seizure is lawful.


2.
       Investigatory detentions are permitted under the Fourth Amendment to the United
States Constitution if an objective officer would have a reasonable and articulable
suspicion that the detainee committed, is about to commit, or is committing a crime.


3.
       Determining what is reasonable is based on the totality of the circumstances and is
viewed in terms as understood by those versed in the field of law enforcement.




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        Review of the judgment of the Court of Appeals in an unpublished opinion filed July 29, 2016.
Appeal from Harvey district court; JOE DICKINSON, judge. Opinion filed April 20, 2018. Judgment of the
Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.


        Ryan J. Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.


        Jason R. Lane, assistant county attorney, argued the cause, and Derek Schmidt, attorney general,
was with him on the brief for appellee.


The decision of the court was delivered by


        NUSS, C.J.: This case requires us to decide whether a search of David Hanke's van
disclosing drugs and a meth pipe was in violation of the Fourth Amendment to the United
States Constitution. The district court and a majority of the Court of Appeals panel ruled
it was not. We agree with the lower courts' results because the police officer had
reasonable suspicion when he asked for and received Hanke's consent to search.
Accordingly, their decisions are affirmed.


                            FACTS AND PROCEDURAL HISTORY


        According to testimony at the hearing on Hanke's motion to suppress the evidence,
as Sergeant Jason Thompson of the Newton Police Department pulled his patrol car into
the well-lit parking lot of a Kwik Shop convenience store around 2 a.m., he noticed a van
with its engine running parked in a stall in front of the store. Thompson drove through the
parking lot and stopped to talk to an acquaintance at a fuel pump. During that
conversation, an individual approached and suggested Thompson check on the van's
driver because he or she was slumped in the seat and the van had been parked there with
its engine running for about an hour.

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       Thompson pulled behind the van and checked the license plate, which showed
registration by a Jaclyn Grattan. Thompson parked on the opposite side of the lot and
approached the van on foot. According to Thompson, he did not pull behind the van
because it was not a traffic stop and he did not want to prevent the driver from freely
leaving after Thompson performed his check. At no point did he engage his emergency
lights or siren.


       As Thompson drew closer, he could see someone slumped to the right in the
driver's seat. Considering the uncomfortable positioning and odd posturing, Thompson
was unable to immediately determine if the person was purposely sleeping, was having a
medical problem, or was under the influence of alcohol or drugs. Thompson knocked on
the window, attempting to initiate contact.


       According to Thompson, the person—later identified as Hanke—quickly sat up,
saw him, and immediately opened the driver's door, which bumped into Thompson.
Thompson told Hanke not to hit him with the door but to simply roll the window down.
Hanke responded that he had tried to roll the window down. Thompson still could not tell
why Hanke had been slumped in the seat. But he believed he startled Hanke when he
knocked.


       With the door now open, Thompson checked for the smell of alcohol but detected
none. He did notice, however, that Hanke seemed to be disoriented and having trouble
"fixating" on him while he was addressing Hanke. Thompson further noted Hanke was
giving slow responses to his questions. Hanke's overall reaction was inconsistent with
Thompson's nearly 20 years of police experience, which often included rousing motorists
who were merely asleep. Because of these observations and his resultant suspicion that


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Hanke might be under the influence of an illegal substance, Thompson asked if Hanke
could step out of the van to talk with him a little more.


       Hanke agreed and got out of the van. Thompson asked if he was okay and Hanke
responded he was fine. But Thompson again observed Hanke was having difficulty
focusing and answering questions, adding to Thompson's concern that this behavior
might be the result of illegal substance abuse. Thompson then asked Hanke for
identification and Hanke produced his driver's license without physical problems. But
during this time Thompson continued to observe Hanke looking around a lot and having a
difficult time focusing on what Thompson was asking him to do. Thompson confirmed
Hanke's identity with a visual check of the license and handed it back.


       Due to Hanke's "odd behavior"—plus either being passed out or asleep at the
wheel of a parked van with its engine running for approximately an hour in front of the
store—and based upon Thompson's experience dealing with impaired drivers, he
continued to believe Hanke might be under the influence of drugs. So immediately after
handing back the license, Thompson asked if he could search the area of the van in which
Hanke had been sitting, specifically the driver's compartment. Hanke agreed. Thompson
wanted to search this particular area because of his suspicion Hanke was under the
influence and may have been using illegal drugs there before passing out.


       Thompson visually checked the surface of the driver's seat and immediate area. He
then checked underneath the driver's seat, where he found a small black camera bag with
an attached soft sunglasses case. In the sunglasses case Thompson found a smoking pipe
with whitish residue inside, which he believed to be methamphetamine. In the camera
bag Thompson found baggies containing what he believed to be more methamphetamine
as well as marijuana. Thompson estimates that the entire encounter from when he walked
up to the van to when he searched it took about three minutes.
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       The State charged Hanke with one count each of unlawful possession of
methamphetamine, unlawful possession of marijuana, and possession of drug
paraphernalia. After Hanke filed a motion to suppress the evidence under a purported
illegal search, the district court found that Hanke gave "voluntary consent" with "no sign
of coercion." Accordingly, Hanke's motion to suppress was denied, as well as his
subsequent motion to reconsider. Following a bench trial on stipulated facts, Hanke was
convicted of each charged crime.


       Hanke later acknowledged to the Court of Appeals panel that the encounter started
as a valid welfare or public safety stop. But he argued it metamorphosed into an illegal
seizure of his person that rendered his consent involuntary due to the coercive nature of
the detention and his ignorance of his right to refuse Thompson's search request.


       The majority of the panel ruled that under the totality of the circumstances a
reasonable person would have felt free to refuse Thompson's requests and terminate the
encounter. Accordingly, the entirety of the contact between Thompson and Hanke was a
voluntary encounter that did not trigger the protections of the Fourth Amendment to the
United States Constitution. State v. Hanke, No. 114,143, 2016 WL 4063975 (Kan. App.
2016) (unpublished opinion).


       Judge Atcheson dissented, concluding that a reasonable person in Hanke's position
would not have felt free to leave or refuse Thompson's request to search. Hanke, 2016
WL 4063975, at *12-17.


       We granted Hanke's petition for review. Our jurisdiction is provided by K.S.A.
2017 Supp. 22-3602(e).


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       More facts will be added as necessary to the analysis.


                                        ANALYSIS


ISSUE: The district court properly denied Hanke's motion to suppress.


       Hanke maintains Thompson extended an initially legal encounter into an illegal
investigatory detention and insufficient attenuation existed between the taint of that
illegal detention and the search and seizure of the evidence. He argues that because of
this violation of his Fourth Amendment rights, we must reverse the district court's denial
of his motion to suppress.


Standard of review


       The standard of review for a district court's decision on a motion to suppress has
two parts. The appellate court reviews the district court's factual findings to determine
whether they are supported by substantial competent evidence. But the court's ultimate
legal conclusion is reviewed using a de novo standard. State v. Neighbors, 299 Kan. 234,
240, 328 P.3d 1081 (2014). The appellate court does not reweigh the evidence or assess
the credibility of witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014).
When the facts supporting the district court's decision on a motion to suppress are not
disputed, the ultimate question of whether to suppress is a question of law over which the
appellate court exercises unlimited review. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d
754 (2014).


       The parties do not dispute the material facts, so our suppression question is only
one of law. And the burden is upon the State to establish the lawfulness of the warrantless
search and seizure. See State v. Carlton, 297 Kan. 642, 646, 304 P.3d 323 (2013); State v.
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Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003) (when a motion to suppress evidence is
filed, the State bears the burden of establishing the lawfulness of the search and seizure).


Investigatory detention


       This court has adopted the United States Supreme Court's "totality of the
circumstances" test to determine whether a voluntary encounter or a seizure—such as an
investigatory detention—has occurred. A voluntary encounter is not a seizure and is thus
not afforded protection by the Fourth Amendment. State v. Thomas, 291 Kan. 676, 683,
246 P.3d 678 (2011). The district court, Court of Appeals majority, and the State all
categorize this as a voluntary encounter throughout.


       But Hanke and dissenting judge Atcheson view the encounter, at least at its
beginning, as a public safety stop. As the label implies, community caretaking or public
safety reasons alone may justify such an encounter if the reasons are based on specific
and articulable facts. State v. Marx, 289 Kan. 657, 662, 215 P.3d 601 (2009) (citing State
v. Vistuba, 251 Kan. 821, 825, 840 P.2d 511 [1992]). No civil or criminal infractions are
required.


       But we need not determine (1) if the legitimate initial encounter was voluntary or a
public safety stop or (2) if it metamorphosed into an investigatory detention. We will
simply assume—without deciding—that this became an investigatory detention because
even if so, we conclude it was supported by reasonable suspicion. Thus it was not an
illegal detention. And therefore Hanke's consent to search was not tainted.




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Reasonable suspicion


      We have held that investigatory detentions are constitutionally permissible if an
objective officer would have a reasonable and articulable suspicion that the detainee
committed, is about to commit, or is committing a crime. State v. Thomas, 291 Kan. at
687; State v. Pollman, 286 Kan. 881, 889-90, 190 P.3d 234 (2008) (citing Terry v. Ohio,
392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968], and State v. Thompson, 284 Kan.
763, 773, 166 P.3d 1015 [2007]).


      Our standard for what is reasonable is based on the totality of the circumstances
and is viewed in terms as understood by those versed in the field of law enforcement.
Thomas, 291 Kan. at 687.


      "'[W]e judge the officer's conduct in light of common sense and ordinary human
      experience. [Citation omitted.] "Our task . . . is not to pigeonhole each purported fact as
      either consistent with innocen[ce] . . . or manifestly suspicious," [citation omitted], but to
      determine whether the totality of the circumstances justify the detention. [Citation
      omitted.] We make our determination with deference to a trained law enforcement
      officer's ability to distinguish between innocent and suspicious circumstances, [citation
      omitted], remembering that reasonable suspicion represents a "minimum level of
      objective justification" which is "considerably less than proof of wrongdoing by a
      preponderance of the evidence." [Citation omitted.] (quoting United States v. Mendez,
      118 F.3d 1426, 1431 [10th Cir.1997]; citing United States v. Sokolow, 490 U.S. 1, 7, 109
      S. Ct. 1581, 104 L. Ed. 2d 1 [1989]).'


              "Similarly, the United States Supreme Court has stated:


              "'While "reasonable suspicion" is a less demanding standard than probable cause
      and requires a showing considerably less than preponderance of the evidence, the Fourth
      Amendment requires at least a minimal level of objective justification. . . . [Citation
      omitted.] The officer must be able to articulate more than an "inchoate and
                                                    8
       unparticularized suspicion or 'hunch'" of criminal activity. [Citation omitted.]' Illinois v.
       Wardlow, 528 U.S. 119, 123, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000)." Thomas, 291
       Kan. at 687-88.


       Because both the district court and the Court of Appeals majority ruled the
encounter voluntary, neither one addressed the State's alternative argument that
Thompson actually possessed reasonable suspicion. See, e.g., Thomas, 291 Kan. at 688
("[b]ecause the district court judge found the encounter involuntary, he did not discuss
whether Officer Brown possessed reasonable suspicion to detain Thomas"). Nevertheless,
as mentioned we readily conclude from the evidence that under the totality of the
circumstances, an objective officer would have—and indeed did have—reasonable
suspicion to believe that Hanke might have committed a crime, particularly being under
the influence, or in possession, of a controlled substance. Thomas, 291 Kan. at 688
(whether reasonable suspicion exists is a question of law).


       Thompson testified that Hanke's behavior during the encounter gave him concern
that Hanke might be under the influence. He supported this suspicion with articulable and
reasonable observations. He explained that he had found Hanke in a position not
conducive to comfort, i.e., sleep—Hanke was slumped to the right in the driver's seat. He
knew Hanke's van had been parked with the engine running for about an hour in the stall
in front of the convenience store—a well-lit area. If a driver truly had wanted to sleep, a
much more logical parking choice would have been away from the light in the large
adjoining parking lot of a Dillon's grocery store—and the engine would have been turned
off. Further, based upon Thompson's nearly 20 years of experience, he believed that
throughout the entire three-minute encounter Hanke appeared disoriented, had trouble
focusing on Thompson, and was slow to answer Thompson's questions. Thompson
smelled no alcohol, and the possibility of a medical problem was reduced when
Thompson asked if he was okay and Hanke responded he was fine.

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       In sum, we hold that an objective officer, with experience determining between
innocent and suspicious circumstances, would be justified in having reasonable suspicion
to believe that Hanke was under the influence of an illegal substance. See Thomas, 291
Kan. at 687-88 ("reasonable suspicion represents a 'minimum level of objective
justification' which is 'considerably less than proof of wrongdoing by a preponderance of
the evidence'"). So even assuming the welfare check metamorphosed into a detention, it
was not an illegal one, and Hanke's consent to the search during that time was not tainted.
See State v. James, 301 Kan. 898, 908, 349 P.3d 457 (2015) (consent is recognized
exception to Fourth Amendment warrant requirement for search).


       The decision of the district court is affirmed. The decision of the Court of Appeals
is affirmed.




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