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State v. Kjolsrud

Court of Appeals of Arizona, Second Division

March 18, 2016

THE STATE OF ARIZONA, Appellant,
v.
NICHOLAS OLAF KJOLSRUD AND LONI KAY KAMBITSCH, Appellees

          Appeal from the Superior Court in Cochise County. Nos. CR201400526 and CR201400527. The Honorable Karl D. Elledge, Judge.

         Brian M. McIntyre, Cochise County Attorney, By Roger H. Contreras, Deputy County Attorney, Bisbee, Counsel for Appellant.

         Mark A. Suagee, Cochise County Public Defender, Bisbee, Counsel for Appellee Kjolsrud.

         Joel Larson, Cochise County Legal Defender, By Bruce Houston, Assistant Legal Defender, Bisbee, Counsel for Appellee Kambitsch.

         Presiding Judge Vásquez authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Miller concurred.

          OPINION

         VÁSQUEZ, Presiding Judge:

         [¶1] Appellees Loni Kambitsch and Nicholas Kjolsrud were charged with multiple drug-related offenses based on drugs and drug paraphernalia seized from their vehicle after a traffic stop. Relying, in part, on Rodriguez v. United States, __ U.S. __, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015), the trial court granted Kambitsch and Kjolsrud's motion to suppress the drug evidence, finding continued detention by a sheriff's deputy to conduct a drug-detection-dog investigation after the completed traffic stop was not based on reasonable suspicion. The state dismissed the cases and filed these appeals pursuant to A.R.S. § 13-4032(6). The state argues the court erred when it concluded the deputy conducting the stop lacked reasonable suspicion to expand the scope of the detention. The state also contends the good-faith exception to the exclusionary rule applies because the deputy relied on previously binding precedent when conducting the search. For the following reasons, we affirm.

         Factual and Procedural Background

         [¶2] We view the evidence in the light most favorable to upholding the trial court's suppression order. State v. Vera, 196 Ariz. 342, ¶ 3, 996 P.2d 1246, 1247 (App. 1999). On an early morning in September 2014, Cochise County Sheriff's Deputy Adam Werkheiser stopped the car being driven by Kambitsch because its license plate was not illuminated. Werkheiser approached the passenger-side window and asked Kambitsch for her driver license, vehicle registration, and proof of insurance. He asked Kjolsrud, the sole passenger, for his identification. Kambitsch and Kjolsrud gave Werkheiser the requested items. Werkheiser then asked if there were any weapons in the vehicle and " specifically . . . if there was anything illegal within the passenger compartment." Kjolsrud said they had a rifle in the trunk, but both occupants stated there was nothing illegal in the car.

         [¶3] Werkheiser returned to his patrol vehicle and performed a records check, which revealed no issues with Kambitsch's driver license, but both Kambitsch and Kjolsrud had outstanding, " non-extraditable" warrants. He also remembered Kjolsrud " had been involved in a [prior] drug offense case." By that time, Deputy Michael McGeoghegan arrived at the scene as " a back-up officer." Although Werkheiser testified he " could have concluded the stop at that time" because he " knew the warrants were non-extraditable" he nevertheless asked Kambitsch to step out of the car and brought her near " the passenger fender of [his] vehicle."

         [¶4] Werkheiser testified Kambitsch made no eye contact as they walked to his patrol vehicle, and, without prompting, she quickly stated that she was aware of the warrant and " [t]he police were always harassing her" about it. Kambitsch also emptied her pockets and stated, " See, I don't have anything on me" and " I'm clean." Werkheiser " thought it was odd because [he] hadn't asked her" a question yet and Kambitsch seemed rushed.

         [¶5] Werkheiser then asked for consent to search her vehicle. Kambitsch replied: " I know my rights. I don't have to let you search. I know what my fiancé is going to say. He's going to say, No, and also if you want to search you can get a dog." Werkheiser testified he did not interpret this statement as giving consent. He then radioed for Deputy Robert Watkins to bring his drug-detection dog to the scene. The dog alerted to the vehicle, and during a subsequent search, deputies found ninety-four grams of methamphetamine, as well as tinfoil and a spoon covered in a " black gooey substance."

         [¶6] A grand jury indicted both Kambitsch and Kjolsrud for conspiracy to commit possession of a dangerous drug for sale, transportation of a dangerous drug for sale, possession of a dangerous drug for sale, and two counts of possession of drug paraphernalia. Kambitsch filed a motion to suppress, which Kjolsrud joined, arguing that although the initial stop was justified, Werkheiser lacked reasonable suspicion to prolong the stop. A little more than a month before the suppression hearing, the United States Supreme Court issued its decision in Rodriguez, __ U.S. at __, 135 S.Ct. at 1614-16, holding that law enforcement officers may not " extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff." Kambitsch and Kjolsrud informed the trial court of Rodriguez on the day of the suppression hearing, and the state filed a response the following day arguing that, even if a constitutional violation had occurred, the good-faith exception to the exclusionary rule applied and, therefore, the evidence should not be suppressed at trial.

         [¶7] After an evidentiary hearing, the trial court granted the motion to suppress, " conclud[ing] that by detaining Kambitsch and Kjolsrud after conducting a records check and warrants check, Werkheiser prolonged the traffic stop beyond the time reasonably required to complete his task, i.e., issue the citation/repair order" and, " [m]oreover, the prolongation was not supported by independent reasonable suspicion." The state then moved to dismiss the charges without prejudice and initiated these ...


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