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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 98,123 STATE OF KANSAS, Appellee, v. RUBY N. THOMAS, Appellant.

SYLLABUS BY THE COURT 1. When reviewing a motion to suppress evidence, an appellate court reviews the factual underpinnings of a district court's decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. The State bears the burden to demonstrate that a challenged search or seizure was lawful.

2. If a person's interaction with law enforcement is voluntary, there is no seizure and there is no protection afforded by the Fourth Amendment to the United States Constitution.

3. Law enforcement interaction with a person is consensual, not a seizure, if under the totality of the circumstances the officer's conduct conveys to a reasonable person that he or she is free to refuse the requests or otherwise end the encounter.

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4. Appellate review of the trial court's determination of whether a reasonable person would feel free to refuse the officer's requests or otherwise terminate the encounter consists of two parts: (1) the factual underpinnings are reviewed under a substantial competent evidence standard and (2) the ultimate legal conclusion drawn from those facts, i.e., whether a reasonable person would feel free to refuse the requests or to otherwise terminate the encounter, is reviewed under a de novo standard.

5. In applying the totality of the circumstances test in a Fourth Amendment context, no one factor is legally determinative, dispositive, or paramount. The outcome does not turn on the presence or absence of a single controlling or infallible touchstone and the test requires careful scrutiny of all the surrounding circumstances.

6. Because the determination of whether a reasonable person would feel free to terminate an encounter or refuse to answer questions is fact-driven, no list of factors can be exhaustive or exclusive.

7. Law enforcement questioning, by itself, is unlikely to result in a violation of the Fourth Amendment to the United States Constitution. Unless the surrounding conditions are so intimidating as to demonstrate that a reasonable person would have believed he or she was not free to disregard the questions, there has been no intrusion upon the detained person's liberty or privacy that would implicate the Fourth Amendment.

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8. Investigatory detentions are permitted under K.S.A. 22-2402 and the Fourth Amendment to the United States Constitution if an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime.

9. Reasonable suspicion means a particularized and objective basis for suspecting the person stopped is involved in criminal activity.

10. The determination of a reasonable suspicion is based on the totality of the circumstances and is viewed in terms as understood by those versed in the field of law enforcement.

11. Reasonable suspicion represents a minimum level of objective justification. It is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence.

12. Whether reasonable suspicion exists is a question of law. An appellate court uses a mixed question standard of review, determining whether substantial competent evidence supports the district court findings, while the legal conclusion is reviewed de novo.

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13. The question of whether the statutory right to a speedy trial has been violated is a matter of law which is reviewed de novo.

14. A party cannot object to the introduction of evidence on one ground at trial and then assert another ground on appeal.

Review of the judgment of the Court of Appeals in an unpublished opinion filed September 12, 2008. Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed January 21 , 2011. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed.

Carl Folsom, III., of Bell Folsom, P.A., of Lawrence, argued the cause and was on the briefs for appellant.

Tony Cruz, assistant county attorney, argued the cause, and Paul Morrison, attorney general, joined him on the briefs for appellee.

The opinion of the court was delivered by

NUSS, J.: The district court denied Ruby N. Thomas' motion to suppress, convicted her of possession of cocaine, and determined that her statutory right to a speedy trial was not violated. The Court of Appeals affirmed her conviction, vacated her sentence, and remanded the case to the district court for resentencing on the probation term.

Thomas petitioned for review of three issues, not including the sentencing issue decided by the Court of Appeals. We granted her petition under K.S.A. 20-3018(b).
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The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court err in denying Thomas' motion to suppress? Yes.

2. Was Thomas denied her statutory right to a speedy trial? No. 3. Did the district court violate Thomas' Sixth Amendment rights by admitting a KBI forensic lab report without requiring the forensic examiner to testify? Issue not preserved for appeal.

Accordingly, we reverse the defendant's conviction and remand for new trial. FACTS On December 19, 2005, Junction City police officer Josh Brown was on patrol and spotted Ruby Thomas walking in the 1300 block of North Webster at 8:48 p.m. Officer Brown possessed a subpoena for L.N., and believing Thomas was L.N., stopped his patrol car. He did not activate his car's emergency lights. Because it was nighttime, his headlights remained illuminated, and the dashboard camera recorded the following events.

Officer Brown exited his car and approached Thomas to ask whether she was L.N. Thomas provided her name but was unable to produce identification. She answered a few basic questions and told Brown she was heading home from the house of a friend named Frank. Based on this information, Brown determined that she was not L.N. He next asked for her permission to fill out a field interview card. After assurances that she was "not in trouble," Thomas agreed to provide the requested information.

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Officer Brown was to testify later that when Thomas provided her address, he was reminded of a prior visit there when Thomas' husband, while intoxicated, had called 911 and complained that Thomas had left their house with a drug dealer. When asked, Thomas was now unable to recall her social security number. Brown spoke into his shoulder radio and later appeared to receive information about Thomas from police dispatch. While filling out the interview card, Brown advised Thomas that she was not under arrest. Twice he informed her that she was free to leave. After Brown completed the card, he and Thomas shook hands and said good-bye. The encounter lasted approximately 5 minutes. Both parties maintained a friendly tone.

Thomas turned her back to Officer Brown and walked away. When she was about 10-15 feet from Brown, he called out, "Hey, Ms. Ruby, can I ask you a couple more questions real quick?" Thomas turned around, walked back to Brown, and agreed to answer further questions.

Officer Brown started this stage by saying, "The more I talk to you, the more I was getting reminded of who you were." When he asked, Thomas indicated that she was recently at "Frank's house." Brown inquired whether it was the same "Frank's house" where drugs and drug paraphernalia had recently been confiscated. Thomas acknowledged it was the same house but denied involvement in that incident.

Officer Brown then asked Thomas if she had used drugs or consumed alcohol earlier that day. Thomas admitted to consuming alcohol but denied using drugs. Brown explained that he was asking because the area around Frank's house is known for drugs and because of the earlier 911 incident involving Thomas' husband. Brown continued asking about drugs and drug paraphernalia and whether Thomas and/or her friends were currently using illegal drugs. Thomas again denied that she was using drugs. She further

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denied that she was in possession of drugs or drug paraphernalia. According to Brown, she did not appear to be under the influence of drugs.

Brown told Thomas to "be honest with me," and with her standing 2-3 feet away from him, spoke into his shoulder radio. He radioed, "Are you 10-6? 10-4. Can you come up here to North 1300 Webster?" After using his radio, Brown again asked Thomas if she had drugs or paraphernalia on her person. Thomas responded "no" and emptied her pockets. Brown asked to feel inside her pockets for drugs, and Thomas threw her hands into the air. After Brown again told Thomas to "be honest with me," she admitted that she was in possession of two crack pipes, which she had found on the ground. At no time during this second stage did Brown inform Thomas that she was free to leave.

Brown again used his shoulder radio, this time to specifically inquire about the status of a female officer who could pat down Thomas. He then placed Thomas under arrest. Thomas waived her Miranda warnings and later made incriminating statements about her use of cocaine that evening and in the past.

The State charged Thomas with possession of cocaine found in the crack pipes. She filed a pretrial motion to suppress all evidence obtained during the second stage of the encounter with Officer Brown, alleging it was an investigatory detention unsupported by reasonable suspicion. After an evidentiary hearing, the district court determined that the encounter between Thomas and Brown was voluntary and denied the motion:

"This is a very close case, however, the Court finds that in this particular case and under these circumstances that discovery of the evidence does not violate the Fourth Amendment. The officer told the Defendant on several occasions she had the right to leave, that she was not under arrest. When confronted with the question as to whether or not she had anything in her pockets, she said no. The officer then asked her if he could look in her pockets at which time she threw her hands up and admitted she had two crack

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pipes in her pocket. Actually, there was never a search involved. She admitted to a crime and was placed under arrest and made incriminating statements after being given the Miranda warning. Therefore, her statements are admissible against her."

After a bench trial, the judge found Thomas guilty. Thomas appealed four issues, and a Court of Appeals panel reversed the district court on the probation term but affirmed the three remaining issues. State v. Thomas, 2008 WL 4222877 (Kan. App. 2008) (unpublished opinion). We granted Thomas' petition for review on the three issues decided adversely to her by the panel.

More facts will be added as necessary to the analysis.

Issue 1: The district court erred in denying Thomas' motion to suppress Thomas argues that the district court improperly denied her motion to suppress. She does not contest the encounter that began when Officer Brown stopped her to determine if she was L.N. and ended when she said good-bye and walked away. She does dispute what she refers to as the second encounter, which she claims began when Brown called out to ask if she would answer more questions and ended with her arrest.

More specifically, Thomas argues that the second encounter was an involuntary, investigatory detention unsupported by reasonable suspicion of criminal activity. In contrast to the first encounter, she contends that the second involved accusatory and repetitious questions about illegal activity and included Officer Brown's call for a backup officer. As a result, Thomas argues that all evidence obtained must be excluded as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).

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The State responds that the entire episode, e.g., both stages, was consensual. It argues that Thomas agreed to answer questions, that Brown's questions were "not so coercive as to make this encounter a detention," and that the call for back-up, alone, was insufficient to turn the encounter into an investigatory detention.

Standard of review

When reviewing general motions to suppress evidence, our standard of review is well known:

"'"[T]his court reviews the factual underpinnings of a district court's decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. [Citation omitted.] The State bears the burden to demonstrate that a challenged search or seizure was lawful. [Citation omitted.]"'" State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010) (quoting State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 [2009]).

Because the parties do not dispute the material facts, our suppression question is solely one of law. See State v. Ingram, 279 Kan. 745, 750-51, 113 P.3d 228 (2005). Therefore, we must only determine as a matter of law whether the second stage of the encounter was consensual or, if it was an investigatory detention, whether it was supported by reasonable suspicion.

Investigatory detention

We begin our analysis by acknowledging that a voluntary encounter is not considered a seizure and is not afforded protection by the Fourth Amendment to the United States Constitution. McGinnis, 290 Kan. at 551 (citing State v. Morris, 276 Kan.
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11, 19, 72 P.3d 570 [2003]). As a result, if we hold that the second stage of encounter was voluntary, i.e., consensual, then the drug evidence was properly obtained.

Our recent opinion in State v. McGinnis, which like the instant case, concerned an officer's questioning and eventual arrest of a pedestrian, provides our frame of reference for this issue:

"The United States Supreme Court has developed a 'totality of the circumstances' test to determine if there is a seizure, or instead a consensual encounter. See State v. Thompson, 284 Kan. 763, 775, 166 P.3d 1015 (2007). '[U]nder the test, law enforcement interaction with a person is consensual, not a seizure if, under the totality of the circumstances, the law enforcement officer's conduct conveys to a reasonable person that he or she was free to refuse the requests or otherwise end the encounter.' 284 Kan. at 775. Stated another way, ' "[s]o long as a reasonable person would feel free to 'disregard the police and go about his business,' [citation omitted], the encounter is consensual and no reasonable suspicion is required."' State v. Reason, 263 Kan. 405, 410, 951 P.2d 538 (1997) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 [1991] ). Consequently, in Reason we held that only if '"'the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.'"' 263 Kan. at 410-11.

"The standard of appellate review for this specific subset of suppression determinations--the trial court's decision of whether the encounter is consensual or a seizure--is quite similar to the standard for general suppression of evidence: 'Appellate review of the trial court's determination of whether a reasonable person would feel free to refuse the officer's requests or otherwise terminate the encounter consists of two parts: (1) the factual underpinnings are reviewed under a substantial competent evidence standard and (2) the ultimate legal conclusion drawn from those facts, i.e., whether a reasonable person would feel free to refuse the requests or

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to otherwise terminate the encounter, is reviewed under a de novo standard.' Thompson, 284 Kan. at 776 (citing Moore, 283 Kan. at 352). "We begin our analysis by acknowledging that a seizure does not occur simply because a police officer approaches an individual and asks a few questions: '[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen . . . . [Citations omitted.] Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. [Citation omitted.] The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations omitted.]' Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). See Thompson, 284 Kan. 763, Syl.

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