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Date: 01-11-2021

Case Style:


Case Number: 117,496

Judge: Mark Alan Ward


Plaintiff's Attorney: Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general

Defendant's Attorney:

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Topeka, KS - Criminal defense attorney represented Brian Lutz with a 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
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.
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.
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
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
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.
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.
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
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).
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
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
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
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).
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.

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

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