KS suppression statute permits pretext arguments; remanded

Kansas’s suppression statute permits the defense to make a challenge based on a race-based stop, if he can prove it. The trial court didn’t apply this test, and neither did the court of appeals, so remanded for reconsideration. State v. Gray, 2017 Kan. LEXIS 727 (Oct. 27, 2017):

Gray asks us to go a step further and essentially end all pretextual traffic stops by requiring the officer to provide a basis for an articulable belief that the driver was committing a crime other than a traffic offense. The United States Supreme Court decided not to take a similar step in Batson, stating: “[W]e emphasize that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause.” 476 U.S. at 97. Likewise, we 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 like Gray’s, 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 uniformly would result in decisions to initiate traffic stops regardless of a driver’s race, ethnicity, national origin, gender, or religion.

We simply cannot determine from the record whether this is the assessment made by the district judge in this case. We, therefore, vacate Gray’s convictions and remand Gray’s case to the district court for another hearing on Gray’s motion to suppress. We express no opinion as to the outcome of that hearing and only instruct that the district court should consider whether the State met its burden of “proving that the search and seizure were lawful,” taking into account the language of K.S.A. 2014 Supp. 22-4606(d) and 22-4609.

. . .

Gray asks us to go a step further and essentially end all pretextual traffic stops by requiring the officer to provide a basis for an articulable belief that the driver was committing a crime other than a traffic offense. The United States Supreme Court decided not to take a similar step in Batson, stating: “[W]e emphasize that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause.” 476 U.S. at 97. Likewise, we 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 like Gray’s, 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 uniformly would result in decisions to initiate traffic stops regardless of a driver’s race, ethnicity, national origin, gender, or religion.

We simply cannot determine from the record whether this is the assessment made by the district judge in this case. We, therefore, vacate Gray’s convictions and remand Gray’s case to the district court for another hearing on Gray’s motion to suppress. We express no opinion as to the outcome of that hearing and only instruct that the district court should consider whether the State met its burden of “proving that the search and seizure were lawful,” taking into account the language of K.S.A. 2014 Supp. 22-4606(d) and 22-4609.