State v. Gill

No. 119,986

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

DAVON M. GILL,
Appellee.

SYLLABUS BY THE COURT

1.
Because the purpose of K.S.A. 2018 Supp. 22-4609 is designed to prohibit the use
of racial or other biased-based policing, the use of this kind of policing is restricted under
the following circumstances: (1) Determining the existence of probable cause to take
into custody or to arrest an individual; (2) establishing 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 (3) determining the existence of
probable cause to conduct a search of an individual or a conveyance.

2.
Under K.S.A. 2018 Supp. 22-4606(d), racial or other biased-based policing is the
following: The unreasonable use of race, ethnicity, national origin, gender, or religion by
a law enforcement officer in deciding to initiate an enforcement action. It is not racial or
other biased-based policing when race, ethnicity, national origin, gender, or religion is
used in combination with other identifying factors as part of a specific individual
description to initiate an enforcement action.

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3.
A defendant may establish a prima facie case of unlawful biased-based policing
(1) by showing that the defendant is a member of a class listed in K.S.A. 2018 Supp. 22-
4606(d) and (2) by giving reasons for arguing that race (or another listed characteristic
under K.S.A. 2018 Supp. 22-4606[d]) was unreasonably used in the decision-making
process for initiating the stop.

4.
Determination of whether an officer unreasonably used race or any other listed
characteristic under K.S.A. 2018 Supp. 22-4606(d) in deciding to initiate an enforcement
action will largely depend on credibility—a weighing of the evidence process that is
already quite familiar to district judges. As with any credibility assessment, a district
judge must weigh surrounding facts and circumstances along with a witness' statements.

5.
Supreme Court Rule 165 (2019 Kan. S. Ct. R. 221) imposes on the district court
the primary duty to provide adequate findings of fact and conclusions of law on the
record to explain the court's decision on contested matters. A party, however, must object
to inadequate findings and conclusions to preserve an issue for appeal. Such objections
necessarily give the district court an opportunity to correct any alleged inadequacies.

6.
When a defendant's motion to suppress evidence maintains a violation of K.S.A.
2018 Supp. 22-4606(d) and K.S.A. 2018 Supp. 22-4609, the State bears the burden to
establish that neither race, ethnicity, national origin, gender, nor religion was
unreasonably used by a law enforcement officer in deciding to initiate an enforcement
action.

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 Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed June 21, 2019.
Affirmed.

Andrew R. Davidson, assistant district attorney, and Derek Schmidt, attorney general, for
appellant.

Kristen B. Patty, of Wichita, for appellee.

Before LEBEN, P.J., GREEN and POWELL, JJ.

GREEN, J.: Davon M. Gill was arrested by an officer of the Hutchinson Police
Department for possession of marijuana with the intent to sell. Gill, who is African-
American, moved to suppress the evidence recovered from his stop based on the officer's
unreasonable use of race to initiate the stop. The district court agreed and granted Gill's
motion to suppress the evidence. On appeal, the State argues that the evidence was
insufficient to support the district court's holding that the officer unreasonably used race
in deciding to initiate the enforcement action. We disagree. Accordingly, we affirm.

Late on the afternoon of September 11, 2017, Hutchinson Police Officer James
Sanders, who is white, was sent to an apartment complex to investigate a reported theft
case. Sanders was not provided any other information and was not looking for any
particular suspects at the time. More specifically, he was not told by dispatch that he
should be on the lookout for two African-American men in a SUV. Further, he had not
met previously either Gill or his passenger, Fatir Hines, and he had no previous
information about them, including whether either was involved in any type of drug or
theft activity. When Sanders arrived at the apartment complex, he was aware or
recognized that the two men in the nearby SUV were African-American.

Sanders' body-worn camera showed that as he was getting out of his patrol car, he
shouted, "You guys call?" toward the SUV occupied by the two African-American males.

3
Sanders received this reply: "No, sir." Taking a step towards the apartment building, he
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, Sanders let Gill know that he was not free to
leave and that he had to answer Sanders' 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, Sanders began addressing Gill as "dude" and although Gill had not
committed a traffic violation and seemingly was lawfully parked, Sanders 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, Sanders stated
that he could smell marijuana in the SUV. Officer Long arrived five minutes later and
Sanders told Long 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 Gill's SUV yielded 18 individually wrapped baggies of marijuana,
weighing approximately 20 grams in a hidden compartment in the center console
underneath the cup holders.

Gill was charged with possession of marijuana with intent to distribute less than
25 grams within 1,000 feet of a school, K.S.A. 2017 Supp. 21-5705(a)(4) and (d)(5), a
severity level 3 nonperson drug felony. Gill moved to suppress the evidence from the
stop, alleging that race-based policing was unreasonably used by Sanders in deciding to
initiate an enforcement action prohibited by K.S.A. 2017 Supp. 22-4606(d) and K.S.A.
2017 Supp. 22-4609.

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 After an evidentiary hearing, the district court ruled that Sanders had unreasonably
used race in deciding to initiate the enforcement action and granted Gill's motion to
suppress the evidence. In the district court's order granting Gill's motion, it found and
ruled as follows:

"The question for the Court to determine is if race was unreasonably used in
deciding to initiate enforcement action and therefore constitute a violation of 22-4609.
"Did Officer Sanders approach the Defendant's vehicle in relation to the theft
call? No evidence was presented concerning the nature of the theft call. On the video,
Officer Sanders indicates to the Defendant, 'I know you didn't call me.' The evidence
would indicate the officer did not approach the vehicle in relation to investigation of the
theft report.
"Officer Sanders indicated he could smell marijuana coming from the
Defendant's vehicle. If the officer smelled marijuana at his vehicle he had no way of
determining the marijuana smell was coming from the Defendant's vehicle. There was
vehicle parked right next to the Officer's vehicle. The apartment complex was nearer to
the officer than the Defendant's vehicle.
"Of importance is the statement on the video given by Officer Sanders to Officer
Long. Officer Sanders told Officer Long [the backup officer], they were 'staring at me
hard, then started looking back, so I walked over here.' The Court has no doubt from the
evidence as the officer approached the vehicle he was able to determine the marijuana
smell was coming from the vehicle.
"The evidence indicates the officer approached the vehicle because the two
occupants were 'staring hard' at him. That is what Officer Sanders says on the video as to
why he approached the vehicle.
"K.S.A. 22-4609 is triggered because the Defendant and his passenger were
black males. As the Court has previously indicated, the actions of Officer Sanders were
constitutional and legal except for possible application of 22-4609. Under the broad
standard set out in the Gray decisions, the Court finds approaching two black males
because they are 'staring hard at you' is unreasonably using race in deciding to initiate the
enforcement action.
"The Defendant's motion to suppress is granted."

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Did the District Court Err in Suppressing Evidence Recovered From the Stop Under
K.S.A. 2018 Supp. 22-4609?

The State argues on appeal that the district court erred in granting Gill's motion to
suppress that was based on K.S.A. 2018 Supp. 22-4609. On the other hand, Gill argues
the district court was correct in suppressing the evidence because Sanders' statement that
Gill and the passenger were "staring at me hard" indicates that Sanders unreasonably used
Gill's race to initiate the stop.

We note that this appeal differs from a typical suppression issue based on alleged
violations of the Fourth Amendment to the United States Constitution. Gill makes no
constitutional argument nor does he seek suppression under the exclusionary rule. See
State v. Gray, 306 Kan. 1287, 1293, 403 P.3d 1220 (2017). Rather, Gill argues that
unlawful biased-based policing was used in violation of K.S.A. 2018 Supp. 22-4609. As a
result, he argued that the evidence derived from the stop should be suppressed under
K.S.A. 22-3216(1).

Prima Facie Case

Because this case involves whether a police officer unreasonably used a
defendant's race to initiate the stop, Gill may establish a prima facie case of unlawful
biased-based policing (1) by showing that he is a member of a class listed in K.S.A. 2018
Supp. 22-4606(d) and (2) by giving reasons for arguing that race (or another listed
characteristic under K.S.A. 2018 Supp. 22-4606(d) was unreasonably used in the decision
making process for initiating the stop. See Gray, 306 Kan. at 1301-02. Gill established a
prima facie case of unlawful biased-based policing in his motion by showing that he is
African-American and, based on the facts of this case, by showing that Officer Sanders
had no valid basis to stop Gill or suspect him of a crime when Sanders started walking
towards Gill's SUV.

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 Before continuing with our discussion, we believe a review of the applicable
statutes will be helpful. K.S.A. 22-3216(1) states: "Prior to the trial a defendant
aggrieved by an unlawful search and seizure may move for the return of property and to
suppress as evidence anything so obtained."

K.S.A. 2018 Supp. 22-4609 states:

"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."

K.S.A. 2018 Supp. 22-4606(d) defines "racial or other biased-based policing" as
follows:

"[T]he unreasonable use of race, ethnicity, national origin, gender or religion by a law
enforcement officer in deciding to initiate an enforcement action. It is not racial or other
biased-based policing when race, ethnicity, national origin, gender or religion is used in
combination with other identifying factors as part of a specific individual description to
initiate an enforcement action."

Our Supreme Court addressed the interplay of K.S.A. 22-3216 with K.S.A. 2014
Supp. 22-4606(d) and K.S.A. 2014 Supp. 22-4609 in Gray, 306 Kan. at 1294-97. We
note that K.S.A. 2014 Supp. 22-4606 and K.S.A. 2014 Supp. 22-4609 are identical to
K.S.A. 2018 Supp. 22-4606 and K.S.A. 2018 Supp. 22-4609. In Gray, the court held that

7
if K.S.A. 2014 Supp. 22-4609 is violated then suppression under K.S.A. 22-3216(1) is the
appropriate remedy. 306 Kan. at 1297. In so holding, the court stated:

"[T]he Kansas Legislature has tied the suppression remedy to one consideration and one
consideration alone: Was there 'an unlawful search and seizure?' K.S.A. 22-3216(1). If
so, suppression is an appropriate remedy. Circling back to the plain language of K.S.A.
2014 Supp. 22-4609 that '[i]t is unlawful to use racial or other biased-based policing,' we
hold that K.S.A. 22-3216 provides a remedy for a violation of Kansas' biased-based
policing statutes, K.S.A. 2014 Supp. 22-4606 et seq." 306 Kan. at 1297.

Our standard of review for this appeal is twofold. First, this court must determine
if the district court applied the correct test to the facts of this case as set forth in Gray:
"The district judge must examine more than the ultimate justification of a traffic stop and
must consider whether an officer 'unreasonably use[d]' race or another characteristic
listed in K.S.A. 2014 Supp. 22-4606(d) in deciding to initiate the enforcement action."
306 Kan. at 1298. Our Supreme Court explained:

"[W]e stop short of requiring an officer to articulate grounds separate from a traffic
offense as the 'but-for' cause of the stop. The biased-based policing statutes do not require
this result. Instead they prohibit the unreasonable use of race in deciding to initiate a
pretextual enforcement action.
"This means that ultimately, at least in many cases, the determination of whether
an officer unreasonably used race will largely depend on credibility—a weighing-of-the
evidence process that is already quite familiar to district judges. As with any credibility
assessment, a district judge must weigh surrounding facts and circumstances along with a
witness' statements. In a case . . . where the defendant urges suppression based on an
unlawful (but not unconstitutional) search or seizure, a district court cannot focus on
whether a traffic violation caused or justified a pretextual stop. Instead, the district court
must consider whether race, national origin, ethnicity, gender, or religion was
unreasonably used in deciding to initiate the enforcement action. This means that a judge
will consider any reasons proferred by the State as to why a particular traffic signal
violation was enforced and determine whether those reasons credibly, fairly, and

8
 uniformly would result in decisions to initiate traffic stops regardless of a driver's race,
ethnicity, national origin, gender, or religion." 306 Kan. at 1302-03.

Second, and only if the district court judge applied the correct legal test, do "we
turn to the factual issues and determine if substantial competent evidence supported the
judge's findings and if the judge reached the correct legal conclusion." 306 Kan. at 1294.

Here, the district court applied the correct legal test. The district court determined
that "approaching two black males because they are 'staring hard at you'" is unreasonably
using race in deciding to initiate the enforcement action. Because the district court
applied the correct test, we move to the second step of the analysis.

Within this second step we make two inquiries. First, we review "the district
court's factual findings to determine whether they are supported by substantial competent
evidence." State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018). Substantial
competent evidence is legal and relevant evidence that a reasonable person could accept
as being adequate to support a conclusion. State v. Talkington, 301 Kan. 453, 461, 345
P.3d 258 (2015). In reviewing the factual findings, an appellate court does not reweigh
the evidence or assess the credibility of witnesses. Hanke, 307 Kan. at 827. The State has
the burden to prove that the enforcement action was lawful. Gray, 306 Kan. at 1302.
Second, this court reviews the ultimate legal conclusion of the district court de novo.
Hanke, 307 Kan. at 827.

Pointing out that he had reviewed the transcript from the evidentiary hearing as
well as Sanders' body-worn camera video, the district judge then listed two facts he
considered significant:

(1) That Sanders did not approach the SUV to investigate the theft report. This
inference of the district court judge is reasonably drawn from the facts. For

9
 example, when Sanders started walking towards the apartment complex, he
executed a Lieutenant Columbo pirouette (a television detective in a TV series
from 1971 to 2003) and started walking towards Gill's SUV. Moreover, when
Sanders walked up to the SUV, he told Gill to place his car in the park mode.
Sanders acknowledged that he knew Gill and Hines had not called him about
the theft case. In so doing, Sanders stated the following: "I know you didn't
call me." Moreover, Sanders later told another officer the following reason for
walking up to Gill's 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." Thus, Sanders implicitly conceded that he had completely
abandoned the theft call and was now focused on the two African-American
males sitting in an SUV.

(2) That if Sanders could smell marijuana from where his patrol car was parked,
he would not have been able to determine if the marijuana smell was coming
from Gill's SUV because another parked vehicle and the apartment complex
were nearer to his patrol car than Gill's SUV. Here, the district court judge
made a credibility determination. He determined that Sanders' testimony that
the smell of marijuana was coming from Gill's SUV was not credible. As the
district court judge pointed out, from where Sanders' patrol car was located, the
odor of marijuana could have come from two other sources: (1) from the
nearby apartment complex or (2) from another nearby parked car. Here, the
district court judge weighed the surrounding facts and circumstances, as
discussed in the Gray decision, in finding that Sanders' testimony that he
smelled marijuana coming from Gill's SUV immediately upon getting out of
his patrol car was not credible.

Our Supreme Court Rule 165 (2019 Kan. S. Ct. R. 221) has imposed on the
district court the primary duty to provide adequate findings of fact and conclusions of law

10
on the record to explain the court's decision on contested matters. A party, however, must
object to inadequate findings and conclusions to preserve an issue for appeal. Such
objections give the district court an opportunity to correct any alleged inadequacies. See
State v. Herbel, 296 Kan. 1101, 1119, 299 P.3d 292 (2013).

Here, the State did not challenge the district court's factual findings. Thus, we can
presume the district court found all the facts necessary to support its judgment. See State
v. Dern, 303 Kan. 384, 394, 362 P.3d 566 (2015).

The State and the dissent spend the majority of their arguments asking us to
reweigh the evidence, which we cannot do. See State v. Ransom, 288 Kan. 697, 705, 207
P.3d 208 (2009). Moreover, the State seems to implicitly concede in its brief that Sanders
did not smell marijuana until after he decided to approach Gill's SUV. In its brief, the
State concedes that Sanders stated the following: "'[T]hese two are staring at me hard;
and start looking back so I start walking over here; I can smell marijuana.'"

Indeed, Sanders implicitly conceded in his testimony that was unsure the smell of
marijuana was coming from Gill's SUV until he spoke with Gill at his SUV. Sanders
testified: "[A]s I walked toward the vehicle that scent grew stronger. As I was speaking
with [Gill] I was a hundred percent sure that marijuana was in that vehicle." Thus, until
Sanders spoke with Gill at his SUV, Sanders was not certain that the smell of marijuana
was coming from Gill's SUV. Moreover, Sanders' testimony supports the district court
judge's factual finding that Sanders' testimony that he smelled marijuana coming from
Gill's SUV immediately upon getting out of his patrol car was not credible. Therefore, if
the smell of marijuana factor is removed from this case, the rest of Sanders' alleged
unbiased reason for deciding to initiate the stop of Gill's SUV topples like a house of
cards.

11
 Contrary to the dissent's suggestion, no one here is branding Officer Sanders as a
racist. That is not the question before the court.

The dissent points out that Sanders did not utter any racial epithets at the scene
and had no history of discriminatory conduct. The statute prohibiting race-based policing
does not require such evidence. The dissent, however, creates a false equivalence when it
declares that if we (the district court and the majority) conclude that race impermissibly
played into the stop in this case, we are necessarily declaring that Officer Sanders is a
racist. Far from that, we are merely saying that in this specific case, Officer Sanders let
racial bias—conscious or unconscious—affect his initiation of enforcement action.

Moreover, the dissent's position requires a distorted reading of what constitutes
race-based policing under K.S.A. 2018 Supp. 22-4609. If the dissent would limit the
application of K.S.A. 2018 Supp. 22-4609 to only exceptionally horrific or despicable
race-based behavior by law enforcement officers, the intended purpose of this statute
would soon become meaningless. Nevertheless, the plain reading of K.S.A. 2018 Supp.
22-4609 does not restrict the application of this statute to only horrific or despicable race-
based policing because the Legislature recognized that racial bias is not always overt, it is
often subtle.

Indeed, the former top law enforcement officer of this country once reminded us
of the dark history of law enforcement in this country: "All of us in law enforcement
must be honest enough to acknowledge that much of our history is not pretty," he said.
"At many points in American history, law enforcement enforced the status quo, a status
quo that was often brutally unfair to disfavored groups." He further noted that there has
been significant research showing that all people have some form of unconscious racial
biases. He stated that most people cannot help their instinctive biases. But he challenged
all law enforcement officers "to design systems and processes to overcome that very
human part of us all." Michael S. Schmidt, FBI Chief Opens Dialogue On Race, Kansas

12
City Star (February 13, 2015); see also Judge Bernice B. Donald and Sarah E. Redfield,
Framing the Discussion, in Enhancing Justice: Reducing Bias 13-19, 23 (Redfield ed.,
2017) (explaining that persons acting on implicit bias most likely "believ[e] themselves
to be making objective decisions").

In conclusion, Sanders had no information regarding Gill's SUV or its occupants
being involved in the theft case he was sent to investigate. Sanders acknowledged that he
was not investigating Gill or Hines based on the theft case. Indeed, Sanders told Gill and
Hines that he knew that they did not call him about the theft case. Thus, if the
unsupported smell of marijuana coming from Gill's SUV is taken from the equation in
this case, we are left with the following:

(1) Sanders seeing two African-American males sitting in a SUV "staring at
[him] hard." So Sanders starts walking towards the SUV seemingly for the
purpose of detaining the two African-American males or for the purpose of
making an investigatory stop of their SUV. Indeed, while addressing Gill,
Sanders said, "Hold on. Hold on. I'm talking to you . . . . I know you didn't
call me. Put the vehicle in park."

(2) Also, while questioning Gill, Sanders would contemptuously refer to Gill as
"dude."

Again, if the unsupported characterization of Sanders that he smelled marijuana
coming from Gill's SUV immediately upon getting out of his patrol is gone, there is no
factual predicate to support Sanders' interference with Gill's mobility of his SUV in our
mobile society.

The district court judge found that K.S.A. 2018 Supp. 22-4609 was "triggered
because the Defendant and his passenger were black males." Thus, the district court judge

13
found that Gill's and Hines' race fed into why Officer Sanders decided to walk over to
Gill's SUV and stopped them. Here, the State has failed to meet its burden to show that
race was not unreasonably used by Officer Sanders to intrude and to interfere with Gill's
mobility when he decided to detain Gill and Hines or to make an investigatory stop of
their car or both. For this reason, we determine that the district court judge correctly
concluded that "approaching two black males because they are 'staring hard at you' is
unreasonably using race in deciding to initiate the enforcement action."

Affirmed.

***

POWELL, J., dissenting: Before we brand an officer of the law—one who has
taken an oath to uphold the constitution and laws of our state—a racist, there ought to be
evidence supporting such a serious charge. Many politicians today all too often invoke
racism as a convenient cudgel against their political opponents, effectively diluting such a
serious moral wrong into a mere political epithet. However, when a court hurls such an
accusation, it sticks. And contrary to the majority's disclaimer, that is what is happening
here. In fact, it is difficult to fathom a more grievous act of racism than for a law
enforcement officer to wrongly use race to invoke the immense power of the government
to detain, search, and arrest someone.

Here, the district court, without any evidence, found that Officer James Sanders of
the Hutchinson Police Department, a Marine Corps veteran, used race as the basis to
initiate a law enforcement action against Davon M. Gill, an African-American, who was
subsequently arrested for possession of marijuana with the intent to sell after drugs were
found in his car. Because I strongly disagree with the majority's affirmation of this unjust
finding, I dissent.

14
 Kansas law prohibits the unreasonable use of race in determining whether to
initiate law enforcement action. K.S.A. 2018 Supp. 22-4609. In State v. Gray, 306 Kan.
1287, 403 P.3d 1220 (2017), the defendant claimed he was stopped due to racial profiling
and filed a motion to suppress. The district court denied his motion; Gray appealed but
claimed no constitutional violations. On appeal, Gray argued that the district court should
apply a variation of the Batson test, namely, that "'[w]henever an officer makes a
pretextual stop of a member of a protected class, the burden should shift to the state to
show some race-neutral justification, other than the basis for the pretextual stop itself, for
investigating a particular person or vehicle.'" 306 Kan. at 1300-01; see also Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (test for determining
whether prosecution unlawfully used race in striking potential juror). As justification for
this test, Gray argued that the Kansas statute against racial profiling would be "'left
impotent'" if it were enough for a law enforcement officer to merely state that race did
not factor into the decision to initiate an enforcement action. Gray, 306 Kan. at 1300.

Significantly, our Supreme Court rejected Gray's argument:

"Instead, the district court must consider whether race . . . was unreasonably used
in deciding whether to initiate the enforcement action. This means that a judge
will consider any reasons proffered by the State as to why a particular . . .
violation was enforced and determine whether those reasons credibly, fairly, and
uniformly would result in decisions to initiate traffic stops regardless of a driver's
race." 306 Kan. at 1303.

See also 306 Kan. at 1295-98 (test to apply K.S.A. 2018 Supp. 22-4609 to suppression
motions where no allegations of constitutional infirmities are present). Applying this test
to our case, Gill needed to state facts showing he was a member of a class listed in K.S.A.
2018 Supp. 22-4606(d) as well as the reasons for arguing that race was unreasonably
used in the decision-making process for initiating the stop. As Gill satisfied those two

15
factors, the burden then shifted to the State to establish that race was not unreasonably
used by a law enforcement officer in deciding to initiate an enforcement action. See
Gray, 306 Kan. at 1301-02.

It is clear that the district court did not believe much of Sanders' testimony. The
court did not believe Sanders' explanation that he was called to the scene because of a
theft call, did not believe Sanders' claim that he could smell marijuana emanating from
Gill's car, and made the perplexing conclusion that Sanders' statement that Gill and the
passenger in his vehicle were "staring at him hard" constituted proof of racial animus.
While I am aware that our deferential standard of review does not allow me much room
to second guess the district court's factual findings, no deference need be given to the
district court's legal conclusions. See State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893
(2016) (district court's factual findings reviewed for substantial evidence; no deference to
legal conclusions). After reviewing the transcript of the suppression hearing and the
officer's body-cam video, I draw a completely different conclusion from the evidence as
the district court did. There is simply no evidence of racial animus. See Twymon v. Wells
Fargo & Co., 462 F.3d 925, 934 (8th Cir. 2006) ("Facially race-neutral statements,
without more, do not demonstrate racial animus on the part of the speaker."). In
particular, I note that there is no evidence that Sanders at the scene uttered any racial
epithets, that he has a history of doing so, or that Sanders has ever engaged in any
discriminatory conduct. See, generally, Giglio v. United States, 405 U.S. 150, 154-55, 92
S. Ct. 763, 31 L. Ed. 2d 104 (1972) (disclosure of evidence involving credibility of law
enforcement witness required); Milke v. Ryan, 711 F.3d 998, 1011 (9th Cir. 2013) (Giglio
applicable to evidence of law enforcement officer's misconduct in unrelated case); Blue v.
Perciasepe, 970 F. Supp. 2d 34, 48 (D.D.C. 2013) (law enforcement officers held to high
standard and have to maintain credibility in order to provide sworn testimony in future
investigations). And no reasonable person could construe his use of the term "dude" when
addressing Gill as racially insensitive. See, generally, Anderson v. Durham D & M,
L.L.C., No. 07-0653-CV-W-DGK, 2009 WL 585653, at *9 n.4 (W.D. Mo. 2009)

16
(unpublished opinion) ("SpongeBob is not a racist reference."), aff'd 606 F.3d 513 (8th
Cir. 2010); THE BIG LEBOWSKI (Working Title Films 1998) (sympathetic main character
Jeff "The Dude" Lebowski). In fact, Sanders testified that racism was against his moral
code. The majority's suggestion that Sanders' actions may have been motivated by his
"implicit bias" is also completely unsupported by the record. See also PIK Crim. 4th
52.010 (2015 Supp.) (defendant acts intentionally when it is defendant's desire or
conscious objective to do act complained about).

The district court found that Sanders did not approach the vehicle because of the
smell of marijuana but, instead, because Gill and his passenger were "staring at him
hard." However, 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 Sanders 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 Sanders 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. See State v.
Hubbard, 309 Kan. 22, Syl. ¶ 5, 430 P.3d 956 (2018) ("The totality of the circumstances
surrounding a law enforcement officer's detection of the smell of raw marijuana
emanating from a residence can supply probable cause to believe the residence contains
contraband or evidence of a crime."); State v. MacDonald, 253 Kan. 320, Syl. ¶ 2, 856
P.2d 116 (1993) ("[T]he detection of the odor of fresh marijuana or marijuana smoke,
standing alone, provides probable cause for a motor vehicle search following a checklane
stop."); State v. Goff, 44 Kan. App. 2d 536, 539, 239 P.3d 467 (2010) ("The smell of raw
marijuana alone is sufficient to give an officer both reasonable suspicion and probable
cause."), rev. denied 292 Kan. 967 (2011).

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 Here, the record shows that Gill's vehicle, which was approximately 15 feet from
Sanders, was the likely source of the raw marijuana smell: It had two occupants who
intently looked at Sanders when he pulled up to investigate the theft call, its windows
were down, and the driver attempted to leave as Sanders exited his patrol vehicle.
Further, Sanders testified that the smell of marijuana grew stronger as he approached
Gill's vehicle. The district court emphasized Sanders' statement to the backup officer that
he made contact because Gill and the passenger were "staring at him hard" and
determined that such a statement established racial animus. However, the district court
and the majority seem to view these four words in isolation from Sanders' entire
statement. Sanders 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 backup officer, who was approximately 8
to 10 feet away from Gill's vehicle, replied, "Jesus, I can smell it from here." When
viewing Sanders' "staring at him hard" statement in context, any nefarious rationale is
removed from the phrase. Moreover, the smell of marijuana is the same regardless of the
race of the individual possessing it. Here, the smell of marijuana "credibly, fairly, and
uniformly would result in" Sanders' decision to investigate Gill regardless of race. See
Gray, 306 Kan. at 1303. Ultimately, a review of the hearing indicates no evidence was
elicited by Gill or the State that race was used as a factor in this stop. The district court's
conclusion that any such motive existed is unsupported by the record on appeal.
Accordingly, I would reverse the district court's suppression order and remand the case
for further proceedings.

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