1 IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 1 17,496

S TATE OF K ANSAS , Appellee ,

v.

B RIAN J OSHUA L UTZ , 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 require d 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. Office rs may take reasonable and

necessary precautions for their safety so long as such measures are not unduly
burdensome under the circumstances

.2

4. The time involved in calling and waiting for backup officers was "negligibly burdensome" given the circumstanc es 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 v iolation.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 15, 2018. Appeal from Shawnee District Court; D AVID D EBENHAM , judge. Opinion filed November 6 , 2020. Judgment of the Court of Appeals affirming the district cou rt is affirmed. Judgment of the district court is
affirmed.

C layton J. Perkins
, of Capital Appellate Defender Office, was on the brief s for appellant.

Natalie Chalmers, as sistant solicitor general, and Derek Schmidt, attorney general, were on the
brief s for appellee.

The opinion of the court was delivered by

W ARD , 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 oc cupants 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

.3

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 h eard and denied by the district
court. That de cision was affirmed by a panel of the Court of Appeals

. We likewise affirm
the district court ' s denial of the suppression motion

.

P ROCEDURAL H ISTORY OF THE C ASE

Hearing on Motion to Suppress

An evidentiary hearing on defendant ' s motion to suppress was held in the Shawnee County D istrict C ourt

. 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 resid ence at all hours of the night

. Austin had been with the department over six years . He was experienced in drug investigations and was assigned

a s field train er 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 le ave . 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 several4

miles and watched it move from one clearly designated eastbound lane of 29 th street in Topeka into the other eastbound lane of 29 th 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
call ed for backup officers before he and Sinsel got out of the patrol car

. He then went to the driver side of the Buick. Si n sel went to the passenger side. The front seat passenger
was the defendant , Brian Lutz. The officers noticed that Lutz was not weari ng a seat belt
as he sat there

. Austin was familiar with Lutz

. He had investigate d 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 . T hey did so without incident . Austin c ollected identif ying information from the
driver. Si n sel c ollect ed the same from Lutz. The occupants were told to stay in the ir car
while the t wo 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 call ed 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 wit h 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 minute s or so of this timeframe were spent obtaining information regarding the driver and front seat passenger.5

Backup officers Lee Trout and Kelsey Krogmann a rrived on scene in separate police vehicles near the end of this seven to eight minutes . T hey were briefed by Austin regarding the identity of the driver and front seat passenger . H e t old them he had called for a drug dog and that the canine handler was on his way. Austin told Sinsel at th is time to return to the patrol car and begin writing a warning c itation 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 s earch to her, and told her
that " if everything check s 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

ge t 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 d rug 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 t he vehicle occupants were placed in handcuffs after being removed from the car. He knew something had
occurred , but he was not su re what.6

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 1 0 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

Follow ing review of the suppression hearing testim ony, t he district court

announce d its f

indings of fact and legal conclusion s

. 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 suff icient 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. " E ven though
the court noted that the stop may have been pretextual (suspicion of drug activity) , it
concluded the stop was nonetheless properly b ased up on 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 127 6 (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, t he 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 enforcement7

officers extend a traffic stop longer than necessary to effectuate the purpose of the stop,
i.e. , the processing of the underlying traffic violation. T he district court concluded the
traff ic stop was not unlawfully extended by th e 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.

A NALYSIS

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.8

The district court ' s factual findings are reviewed to determine if they are supported by substantial competent evidence

. A ppellate court s do not reweigh the evidence, assess witness credibility, or resolve evidentiary conflicts. State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018). D eference 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. S tate 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 t he sole issue remaining for this c ourt ' 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 r ule 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). T he scope of the traffic stop " must be strictly tied to and justified by the circumstances which rendered its initiation proper

. " State v.
Dam m, 246 Kan. 220, 224, 787 P.2d 1185 (1990)

.

T he 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 require d to complete that mission. " Illinois v. Caba l les , 543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed 2d 842 (2005). Later i n Rodriguez that Court9

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 i nclude s checking the driver ' s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile ' s registration and proof of insurance. O fficers may also take " negligibly burdensome precautions " for their safety. 308 Kan. at 31 6

- 17 (citing Rodriguez , 575 U.S. at 356).

In the case before us t he 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 re cited Officer Austin ' s estimation that it would take Officer Sinsel 12

- 13 minutes to complete writing the tra ffic
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 citation s when the occupants were asked to step out of the car. "

The district court then conc luded:

" 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 this10

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 t here 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.

F rom the initiatio n 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

m easurably extend ed beyond its basic objective of processing the observed traffic
violation

. C alling for and wai ting for backup officers was both reasonable and necessary

g iven the time of morning, the relative inexperience of one of the two officers, the greater number of occupants in the car th a n 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 underst ood 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, 12 3

- 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).11

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.

C ONCLUSION

The decision of the district court denying the motion to suppress is aff irmed. The judgment of the Court of Appeals is affirmed.

M ICHAEL E. W ARD , Senior Judge, assigned. 1

1 REPORTER'S NOTE: Senior Judge Ward was appointed to hear cas e 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.