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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 117,496

STATE OF KANSAS,

Appellee,

v.

BRIAN JOSHUA LUTZ,

Appellant.

SYLLABUS BY THE COURT

1.

Appellate courts employ a two-part process when reviewing a district court's 

decision on a motion to suppress evidence. The district court's factual findings are 

reviewed to determine if they are supported by substantial competent evidence while the 

legal conclusions drawn from the factual findings are reviewed using a de novo standard.

2.

Deference in appellate review is not to a particular witness but to the fact finder 

who weighed and evaluated the evidence.

3.

The tolerable duration of police inquiries in the traffic stop context is not based on 

any rule of thumb about the minutes required for a 'routine' stop, but is determined by the 

time required to complete the tasks involved in processing the mission of the traffic stop 

in question and to attend to related safety concerns. Officers may take reasonable and 

necessary precautions for their safety so long as such measures are not unduly 

burdensome under the circumstances.
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4.

The time involved in calling and waiting for backup officers was "negligibly 

burdensome" given the circumstances present in this case.

5.

The actions of the officers here, including calling for a drug dog, did not 

measurably extend the duration of the traffic stop beyond the time necessary to achieve 

the stop's basic objective of processing the observed traffic violation. 

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 15, 2018. 

Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed November 6, 2020.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is 

affirmed.

Clayton J. Perkins, of Capital Appellate Defender Office, was on the briefs for appellant. 

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, were on the 

briefs for appellee.

The opinion of the court was delivered by

WARD, J.: Brian Lutz was the front seat passenger in a vehicle stopped by Topeka 

police officers early one morning for a traffic violation. The vehicle was coming from the 

location of a suspected drug transaction. Backup officers and a canine officer were 

requested to the scene of the stop and arrived shortly. A trainee officer at the scene was 

tasked with writing a warning citation to the driver while other officers began removing 

the vehicle's occupants to facilitate a drug dog sniff. As Lutz was stepping from the 

passenger side of the vehicle, drug paraphernalia was observed in his immediate vicinity.

The dog sniff was called off before it began. A warrantless probable cause search of the 

vehicle disclosed controlled substances. 
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Lutz was charged with possessing marijuana, methamphetamine, and drug 

paraphernalia. He moved to suppress the seized evidence arguing that the initial stop of 

the vehicle was without sufficient legal justification. He also argued that officers detained 

occupants of the vehicle longer than lawfully permitted to accommodate the planned drug 

dog sniff of the vehicle. The motion to suppress was heard and denied by the district 

court. That decision was affirmed by a panel of the Court of Appeals. We likewise affirm 

the district court's denial of the suppression motion. 

PROCEDURAL HISTORY OF THE CASE

Hearing on Motion to Suppress 

An evidentiary hearing on defendant's motion to suppress was held in the Shawnee 

County District Court. Three of the police officers involved in the case provided the 

following testimony. No other evidence was presented.

Just before 3 a.m. on April 23, 2015, Topeka, Kansas police officers Brandon 

Austin and Scott Sinsel began surveilling a home in Topeka in response to a citizen 

complaint about vehicles, bicycles, and pedestrians coming and going for short periods of 

time from the suspect residence at all hours of the night. Austin had been with the 

department over six years. He was experienced in drug investigations and was assigned 

as field trainer for Sinsel who was a "young recruit officer" riding along with him.

Austin parked the patrol vehicle some distance from the residence. He observed a 

vehicle and bicycle come to the house and not leave. He then observed a second vehicle

arrive at the house, stay for "about a minute," and leave. Suspecting a possible drug 

transaction, Austin followed the departing vehicle to a Kwik Shop where the vehicle 

stayed for less than five minutes and then left. He continued to follow the car for several 
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miles and watched it move from one clearly designated eastbound lane of 29th street in 

Topeka into the other eastbound lane of 29th street without signaling the change of lanes. 

Based on this observed traffic violation, Austin initiated a traffic stop at 3:23 a.m. 

by activating emergency lights. The vehicle was a 2007 black Buick 4-door with a 

temporary tag. It slowed as if to stop but continued for a while before finally coming to a 

complete stop in a bank parking lot. Because the Buick had three occupants, Austin 

called for backup officers before he and Sinsel got out of the patrol car. He then went to 

the driver side of the Buick. Sinsel went to the passenger side. The front seat passenger 

was the defendant, Brian Lutz. The officers noticed that Lutz was not wearing a seat belt

as he sat there. Austin was familiar with Lutz. He had investigated a shooting at Lutz'

residence that occurred within the last two months. And he was aware of a very recent 

traffic stop involving Lutz, marijuana, and a gun. 

The occupants of the vehicle were told to put their hands where officers could see 

them. They did so without incident. Austin collected identifying information from the 

driver. Sinsel collected the same from Lutz. The occupants were told to stay in their car 

while the two officers went back to the patrol car to run identifying information on the 

driver and Lutz. There were no wants or warrants on either person. While in the patrol car 

and still awaiting the arrival of backup officers, Austin called for a drug dog because of 

the nature of the stop and his previous knowledge of Lutz. The canine handler, Officer 

Michael Ahlstedt, was one block away at the time. 

The process of stopping the vehicle, calling for backup, approaching the vehicle, 

speaking with the driver, gathering identification information from the driver and front 

seat passenger, going back to the patrol car, running wants and warrants, and calling for 

the drug dog, all occurred within a span of seven to eight minutes. The last three minutes 

or so of this timeframe were spent obtaining information regarding the driver and front 

seat passenger. 
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Backup officers Lee Trout and Kelsey Krogmann arrived on scene in separate 

police vehicles near the end of this seven to eight minutes. They were briefed by Austin 

regarding the identity of the driver and front seat passenger. He told them he had called 

for a drug dog and that the canine handler was on his way. Austin told Sinsel at this time 

to return to the patrol car and begin writing a warning citation to the driver for the lane 

change violation. Sinsel complied with Austin's request.

It was about this time, just after the eight-minute mark, that officer Michael 

Ahlstedt arrived with the drug dog. He asked officers on scene to have all occupants 

removed from the vehicle so that his canine could perform a sniff of the vehicle safely,

without occupant interference. Austin would deal with the driver, Trout the front seat 

passenger, and Krogmann the backseat passenger. 

Austin approached the driver, explained the drug dog search to her, and told her 

that "if everything checks out" she would likely receive a traffic warning citation and be 

free to leave. He escorted her back to the patrol car. Trout approached Lutz and had him 

get out of the front passenger seat. When Lutz did so, Trout observed in plain view an 

item of drug paraphernalia (marijuana grinder) in the pocket of the front passenger door. 

He immediately alerted Austin that he had found the item. Having discovered the drug 

paraphernalia, officers concluded they had probable cause to search the vehicle and 

terminated the drug dog sniff before it even began. 

The subsequent warrantless search of the vehicle disclosed additional items of 

suspected drug paraphernalia as well as suspected controlled substances. Sinsel was still 

in the patrol car writing the warning citation and observed that the vehicle occupants 

were placed in handcuffs after being removed from the car. He knew something had 

occurred, but he was not sure what. 
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According to Austin, the total time that elapsed from the stop of the suspect 

vehicle until the time Trout observed drug paraphernalia in the passenger door pocket 

was "less than 12 minutes." It was at or shortly after the eight-minute mark that Sinsel 

began writing the warning citation as directed. Austin estimated that it takes him from 

10-15 minutes to complete the writing of a traffic citation following a car stop, generally 

closer to 10 minutes. He estimated that Sinsel, an officer in training, finished with the 

warning citation in this case approximately 12-13 minutes after the initial traffic stop. 

District Court Ruling on Motion to Suppress

Following review of the suppression hearing testimony, the district court 

announced its findings of fact and legal conclusions. The court detailed the testimony of 

the officers given at the suppression hearing. It then addressed the two legal issues raised 

by Lutz in his motion to suppress, namely whether the officers had a sufficient legal basis 

to make the initial traffic stop, and whether the officers unlawfully extended the duration 

of the traffic stop beyond its underlying objective. 

Regarding the basis for the traffic stop, the district court concluded that "the 

officers had the required lawful basis for stopping the Buick automobile." Even though 

the court noted that the stop may have been pretextual (suspicion of drug activity), it 

concluded the stop was nonetheless properly based upon an observed traffic law violation 

(improper lane change) and thus grounded in reasonable suspicion of criminal activity.

Citing State v. DeMarco, 236 Kan. 727, 952 P.2d 1276 (1998), State v. Jones, 300 Kan. 

630, 639, 333 P.3d 886 (2014), and K.S.A. 22-2402(1). 

Turning to the question of whether the traffic stop was unlawfully extended to 

accommodate the drug dog sniff, the district court analyzed the rule of law from 

Rodriguez v. United States, 575 U.S. 348, 350, 135 S. Ct. 1609, 191 L. Ed. 2d 492 

(2015), which states that an unconstitutional seizure occurs when law enforcement 
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officers extend a traffic stop longer than necessary to effectuate the purpose of the stop, 

i.e., the processing of the underlying traffic violation. The district court concluded the

traffic stop was not unlawfully extended by the planned drug dog sniff and denied the 

motion. 

Court of Appeals Decision

In an unpublished decision a panel of the Court of Appeals affirmed the district 

court's denial of Lutz' motion to suppress. State v. Lutz, No. 117,496, 2018 WL 2999228,

at *1 (Kan. App. 2018) (unpublished opinion). The panel outlined the factual and 

procedural history of the case. It found that substantial competent evidence supported the 

district court's findings. The panel then concluded: 

"Because the traffic stop was not prolonged due to the dog sniff, the officers did not violate 

Brian’s constitutional rights by beginning the dog sniff process—removing him from the car. See 

Rodriguez, 135 S. Ct. at 1616; Caballes, 543 U.S. at 409 (holding dog sniff of exterior of car during 

lawful seizure does not implicate legitimate privacy interests); Maryland v. Wilson, 519 U.S. 408, 414-15, 

117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (holding officers can remove vehicle occupants from car pending 

completion of traffic stop). The subsequent search of the vehicle was lawful based on Trout viewing the 

marijuana grinder. See State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012) (noting plain view 

is a recognized exception to warrant requirement); State v. Harrington, 2 Kan. App. 2d 592, 593-94, 585 

P.2d 618 (1978) (plain view of marijuana justified warrantless search)." 2018 WL 2999228, at *3.

ANALYSIS

Standard of Review

The burden is on the State to prove the lawfulness of a search and seizure. K.S.A. 

22-3216(2). Appellate courts employ a two-part process when reviewing a district court's 

decision on a motion to suppress evidence. 
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The district court's factual findings are reviewed to determine if they are supported 

by substantial competent evidence. Appellate courts do not reweigh the evidence, assess 

witness credibility, or resolve evidentiary conflicts. State v. Chandler, 307 Kan. 657, 668, 

414 P.3d 713 (2018). Deference is not to a particular witness but to the fact-finder who 

weighed and evaluated the evidence. State v. Lowery, 308 Kan. 359, 367, 420 P.3d 456 

(2018). 

The legal conclusions drawn from the factual findings are reviewed using a de 

novo standard. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018). 

Discussion

Several issues were raised by Lutz before the district court and the Court of 

Appeals, but the sole issue remaining for this court's consideration is whether the officers 

unlawfully extend the duration of the traffic stop beyond the time needed to fulfill its 

underlying objective and thus violated the rule of law announced in Rodriguez.

A routine traffic stop is a seizure under the Fourth Amendment. DeMarco, 263 

Kan. at 733; Jones, 300 Kan. at 637. It is a form of investigative detention which must be 

supported from its inception by articulable reasonable suspicion of criminal activity. State 

v. Jimenez, 308 Kan. 315, 323, 420 P.3d 464 (2018); see Terry v. Ohio, 392 U.S. 1, 88 S. 

Ct. 1868, 20 L. Ed. 2d 889 (1968). The scope of the traffic stop "must be strictly tied to 

and justified by the circumstances which rendered its initiation proper." State v. 

Damm, 246 Kan. 220, 224, 787 P.2d 1185 (1990).

The United States Supreme Court has said, "A seizure that is justified solely by the 

interest in issuing a warning ticket to the driver can become unlawful if it is prolonged 

beyond the time reasonably required to complete that mission." Illinois v. Caballes, 543 

U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed 2d 842 (2005). Later in Rodriguez that Court 
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explained that the "tolerable duration" of police inquiries in the traffic stop context is not 

based on any rule of thumb about the minutes required for a 'routine' stop. Instead it is 

determined by the time required to complete the tasks involved in processing the mission 

of the traffic stop in question, and to attend to related safety concerns. "Authority for the 

seizure ends when tasks tied to the traffic infraction are—or reasonably should have 

been—completed." 575 U.S. at 354.

Following the Rodriguez decision, this court held in Jimenez that an officer's 

detailed questions into the travel plans of a motorist measurably and unlawfully extended 

the duration of the traffic stop and was not supported by any reasonable suspicion or 

probable cause of other criminal activity. This court noted that beyond simply

determining whether to issue a citation, a law enforcement officer's mission in a traffic 

stop typically includes checking the driver's license, determining whether there are 

outstanding warrants against the driver, and inspecting the automobile's registration and 

proof of insurance. Officers may also take "negligibly burdensome precautions" for their 

safety. 308 Kan. at 316-17 (citing Rodriguez, 575 U.S. at 356).

In the case before us the district court found from the suppression hearing 

testimony that 12 minutes elapsed from the initial vehicle stop at 3:23 a.m. until the 

vehicle's occupants were asked to exit the car. The court recited Officer Austin's 

estimation that it would take Officer Sinsel 12-13 minutes to complete writing the traffic 

citation. The court found that Officer Sinsel began writing the citation about eight 

minutes into the stop and "was still in the process of writing out the citations when the 

occupants were asked to step out of the car."

The district court then concluded:

"Overall, the time between the stop and plain view of the illegal contraband was a short 

period of time. The actions of the officers, including Officer Ahlstedt and Officer Trout, to this 
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point, did not prolong or extend the duration of the original traffic stop any further than what was 

necessary to complete the investigation for the traffic violations and issue citations for the traffic 

violations."

The district court's factual findings are a fair interpretation of the record made at 

the suppression hearing. Although there may be differing ways to view the record below, 

substantial competent evidence supports the district court's findings, and those findings 

support the legal conclusions reached by the district court. 

From the initiation of the traffic stop at 3:23 a.m. until the moment when Officer 

Trout observed drug paraphernalia in plain view next to Lutz, the stop was not 

measurably extended beyond its basic objective of processing the observed traffic

violation. Calling for and waiting for backup officers was both reasonable and necessary 

given the time of morning, the relative inexperience of one of the two officers, the greater 

number of occupants in the car than officers on scene at the time, and Officer Austin's 

knowledge of previous incidents involving Lutz in which firearms were discharged or 

were present. The limited time involved in securing this assistance was not unduly 

burdensome under the circumstances. The two backup officers arrived within minutes of 

being summoned. The brief discussion and coordination between the various officers 

ensured that each officer understood the circumstances of the stop, the identity of the 

stopped vehicle's occupants, and the next steps to be taken.

A dog sniff of the exterior of an automobile during an otherwise lawful traffic stop 

does not implicate legitimate privacy interests and is not a search subject to the Fourth 

Amendment. Caballes, 543 U.S. at 409; United States v. Jacobsen, 466 U.S. 109, 123-24, 

104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); State v. Barker, 252 Kan. 949, 957, 850 P.2d 

885 (1993). Removal of the vehicle's occupants, including passengers, is permitted 

pending completion of the traffic stop. Maryland v. Wilson, 519 U.S. 408, 414-15; 117 S. 

Ct. 882, 137 L. Ed. 2d 41 (1997). 
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Even given the district court's conclusion that officers lacked sufficient reasonable

suspicion of drug activity to extend the traffic stop, utilization of a drug dog during the 

stop was nonetheless lawful. As noted above, the district court found here that "[t]he 

actions of the officers . . . did not prolong or extend the duration of the original traffic 

stop any further than what was necessary to complete the investigation for the traffic 

violations and issue citations for the traffic violation." See Rodriguez, 575 U.S. at 356.

Giving appropriate deference to those findings brings us to the conclusion that the 

district court did not err in denying the motion to suppress. 

CONCLUSION

The decision of the district court denying the motion to suppress is affirmed. The 

judgment of the Court of Appeals is affirmed. 

MICHAEL E. WARD, Senior Judge, assigned.1

 

1REPORTER'S NOTE: Senior Judge Ward was appointed to hear case No. 117,496

under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on 

the court by the retirement of Chief Justice Lawton R. Nuss.