Opinion
No. 105 695.
2012-05-11
STATE of Kansas, Appellant, v. Allen R. JULIAN, Appellee.
Appeal from Rice District Court; Ron Svaty, Judge. Scott E. McPherson, county attorney, and Derek Schmidt, attorney general, for appellant. Gregory D. Bell, of Forker Suter, LLC, of Hutchinson, for appellee.
Appeal from Rice District Court; Ron Svaty, Judge.
Scott E. McPherson, county attorney, and Derek Schmidt, attorney general, for appellant. Gregory D. Bell, of Forker Suter, LLC, of Hutchinson, for appellee.
Before PIERRON, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is an interlocutory appeal by the State of Kansas from an order suppressing evidence. The evidence, including marijuana, was seized from Allen R. Julian's car during a search incident to his arrest for, among other crimes, possession of marijuana. The State contends the deputy reasonably believed evidence of the crime of arrest might be found inside Julian's car. We agree and reverse the suppression order and remand for further proceedings.
Factual and Procedural Background
On January 17, 2010, Jeff Pieplow, a deputy with the Rice County Sheriffs Office, stopped Julian for driving with a defective headlight. Deputy Pieplow had received reports suggesting Julian was involved in the manufacture of methamphetamine, but, prior to the stop, he had no specific knowledge that Julian's car contained anything illegal. As Deputy Pieplow approached the car, he saw Julian making “furtive movements” in an apparent effort to conceal something under a “blanket-type seat cover.”
Deputy Pieplow requested Julian's driver's license and proof of insurance. When Julian was unable to provide proof of insurance, Deputy Pieplow removed him from the car and placed him under arrest. As Deputy Pieplow began a pat-down search, Julian repeatedly reached for his coat pocket. The deputy searched the pocket and found a loaded firearm.
Deputy Pieplow removed the firearm and continued the pat-down search. Julian then reached for his pants pocket, so the deputy handcuffed and placed him over the hood of his patrol vehicle to complete the pat-down search. The deputy found a metal tin containing marijuana, a folding knife, a utility knife, rolling papers, and lighters. The deputy placed Julian under arrest for carrying a concealed weapon, possession of marijuana, and possession of drug paraphernalia in addition to no proof of insurance.
Deputy Pieplow secured Julian in the back of his patrol vehicle and then searched Julian's car. At the suppression hearing, the deputy said he was searching for the “fruits of the crime,” the crime being “[t]he crime of his arrest” for “drugs.” Julian's counsel cross-examined Deputy Pieplow on this point:
“Q. You indicated on direct examination that you searched the [car] because he was arrested for drugs. He wasn't arrested for drugs, he was arrested specifically for possessing marijuana, true?
“A. Which is a drug, yes.
“Q. I understand that but he wasn't arrested for possession methamphetamine or cocaine or any other drug, he was arrested specifically for possessing marijuana?
“A. Correct.
“Q. And that marijuana was in a small tin that was found in one of his pockets?
“A. Correct.
“Q. And at the time you performed the search of the [car] you were looking for more marijuana?
“A. Correct.
“Q. Were you looking for anything else?
“A. Like I said, fruits of the crime.
“Q. Well, that's what I'm getting at. The crime, what crime? Specifically the crime of arrest for possessing marijuana?
“A. Correct.
“Q. That's it?
“A. Yeah, at that time, yeah.
“Q. You weren't looking for any meth manufacturing paraphernalia or anything related to the manufacture of methamphetamine because you had knowledge when you made contact with him that he may be involved in that activity, is that true?
“A. I had, correct, yeah, had intell that he was involved possibly with that.
“Q. Right. With that intell that he was possibly involved in that isn't it true that when you got into the [car] to search it you were looking for the possibility that he would have items consistent with the manufacture of methamphetamine in the [car]?
“A. True.
“Q. So you weren't looking just for the fruits of the crime of the arrest of possessing marijuana, you were also looking for whether or not he had items in his [car] consistent with either the use or the manufacture of methamphetamine, true?
“A. Yeah, I'd say.
“Q. That's true?
“A. Yeah, true.”
In Julian's car Deputy Pieplow found both marijuana and paraphernalia used for the manufacture of methamphetamine. A marijuana cigarette was lying on the threshold of the driver's door by the front seat. The manufacturing paraphernalia was in an open bag on the floorboard. When Deputy Pieplow took Julian to jail, a bag of pseudoephedrine was also found in Julian's clothing.
The State charged Julian with attempted manufacture of methamphetamine, possession of pseudoephedrine with the intent to use to manufacture an illegal substance, possession of drug paraphernalia, possession of marijuana, criminal possession of a firearm, no proof of liability insurance, and operating a vehicle with a defective headlamp. Julian filed a motion to suppress the evidence seized from his car based on Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).
On February 23, 2011, the district court held a suppression hearing. Julian argued the search of his car incident to his arrest for possession of marijuana was improper because “that crime was complete. He had marijuana in his pocket on his person and it wouldn't have mattered whether [the][d]eputy found more marijuana in the [car]. You can only be arrested for possession of marijuana.” Julian contended that what Deputy Pieplow really “wanted to do when he got into [the car] was see whether there was anything related to any other drug activity.”
The district judge accepted Julian's reasoning in part:
“The case I think that we do rely on is Gant and the only question is was there reason to expect that evidence relevant to the crime of arrest may be found in the car. The argument made by the State is well, we thought there would be more marijuana. As far as I know Kansas has no statutes that say if you have an ounce of marijuana you have one crime, if you have ten pounds of marijuana you have another and if you have 50 pounds of marijuana you have another. I don't see how finding more marijuana was relevant to the crime. If we had a statute that said the crime has different weights depending on how much marijuana was found then I could say yeah, we found some on him; maybe let's look for more in the car. That's reasonable to think that maybe there'd be something to help the case. I don't think that searching for more marijuana was relevant to the crime of arrest because he was already guilty.
“Now, maybe that's simple reasoning or very good reasoning but that's the reasoning of the Court. I'm granting the motion to suppress.”
The State appeals.
Search Incident to Arrest
The State argues the district court misinterpreted Gant: “Applying the district court's rationale, if Kansas had different drug possession laws based on the quantity of the drug possessed, the officer would be violating the defendant's constitutional rights ... by searching for additional marijuana. He would be searching for evidence of some crime other than the crime of arrest.”
We generally review a district court's findings of fact for substantial competent evidence and its conclusions of law under a de novo standard. See State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). Here, however, the material facts are uncontroverted and our review is unlimited. See State v. Oram, 46 Kan.App.2d 899, Syl. ¶ 2, 266 P.3d 227(2011).
Before addressing the constitutional issue, we will mention K.S.A. 22–2501, which has been repealed but was in effect during the search in question here. See L.2011, ch. 100, sec. 22. That statute controlled the “permissible circumstances, purposes, and scope of a search incident to arrest.” State v. Conn, 278 Kan. 387, 391, 99 P.3d 1108 (2004). Both parties cite the statute when briefing Gant's impact on K.S.A. 22–2501(c), which permitted searches for “fruits, instrumentalities, or evidence of a crime,” as opposed to the crime of arrest. (Emphasis added.) The parties also acknowledge that Gant rendered this provision unconstitutional. See State v. Henning, 289 Kan. 136, 145–49, 209 P.3d 711 (2009).
The parties do not brief the other provisions of K.S.A. 22–2501, however, and Julian does not argue the statute's applicability on appeal. We will, therefore, turn to the constitutional question raised by Julian during the suppression hearing and on appeal.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights protect individuals from unreasonable searches and seizures. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). A warrantless search is per se unreasonable unless it falls within certain exceptions. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied –––– U.S. ––––– (2011).
The State argues only one exception here, a search incident to lawful arrest. Gant is therefore controlling, as the district court properly noted. In Gant, police officers arrested the defendant for driving with a suspended license, handcuffed him, secured him in a patrol vehicle, and then searched his car. The search located cocaine, but the United States Supreme Court held the search was unreasonable. 556 U.S. at 351.
The Supreme Court provided two independent prongs or branches of analysis. See 556 U.S. at 351;United States v. Grooms, 602 F.3d 939, 941 (8th Cir.), cert. denied 1315 S.Ct. 491 (2010); State v. Cantrell, 149 Idaho 247, 252, 233 P.3d 178 (2010); 3 LaFave, Search and Seizure, § 7.1, n. 141 (2011–2012 Pocket Part). The first prong “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” 556 U.S. at 338 (citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685,reh. denied396 U.S. 869 [1969] ). Under this prong police may “search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U.S. at 343. Because the defendant in Gant was handcuffed in the back of a patrol vehicle at the time of the search, the “police could not have reasonably believed ... that [the defendant] could have accessed his car.” 556 U.S. at 344. In other words, nothing in the defendant's car could have posed a threat to officer safety or been subject to destruction or concealment by the defendant. 556 U.S. at 344.
The State concedes it cannot satisfy the first prong of Gant since Julian “was not within reaching distance of his [car].” Julian recognizes this concession and agrees “it was not reasonable to believe ... that [he] might have accessed the vehicle at the time of the search as he was cuffed and placed in Officer Pieplow's patrol car.” Instead, the State argues the second prong of Gant is applicable. Julian agrees the search should be analyzed under the second prong of Gant, although he disagrees with the State's legal conclusion.
The second prong of Gant, which is based on Justice Scalia's concurrence in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), provides: “[C]ircumstances unique to the vehicle context justify a search incident to arrest when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ “ 556 U.S. at 343. The second prong, unlike the first, is not derived from interests in officer safety and preserving evidence from concealment or destruction. See 556 U.S. at 343 (acknowledging the second prong “does not follow from Chimel ”); 3 LaFave, Search and Seizure, § 7.1(d) (2011–2012 Pocket Part) (“Any reader of Gant must ... have been startled ... to ... find an announcement of a totally new and additional power regarding search of vehicles incident to arrest, one having absolutely nothing to do with the risks recited in Chimel.”).
The second prong follows the notion that in some situations “the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and containers therein.” 556 U.S. at 344. The second prong was not met in Gant because the defendant “was arrested for driving with a suspended license—an offense for which police could not expect to find evidence in the passenger compartment of [his] car.” 556 U.S. at 344.
Contrasting the present case with Gant, the State argues “searching a vehicle incident to arrest for possessing a drug is reasonable because the police could expect to find evidence of that offense in the vehicle.” The State thus argues the broad category of “drug” as opposed to the specific drug for which Julian was arrested before the search, marijuana. We need not decide whether Deputy Pieplow could have searched for drugs generally, however, based on an arrest for possession of marijuana. The facts are that Deputy Pieplow arrested Julian for possession of marijuana, searched Julian's car for-marijuana, and then found additional marijuana. The coincidence of another motivation on the deputy's part, to find evidence relating to methamphetamine, changes neither these facts nor our legal conclusion.
Julian does not contend, for example, that even “the search for marijuana was proper, the evidence relating to methamphetamine should have been suppressed. See State v. Ulrey, 41 Kan.App.2d 1052, 1060, 208 P.3d 317 (2009) (“When officers are in a place they have a right to be ... they may seize any evidence in plain view.”). The question is simply whether the search for marijuana was proper, and that question turns on the second prong of Gant—whether Deputy Pieplow had reason to believe evidence of possession of marijuana might be found in Julian's car after he was arrested for that crime.
We conclude the deputy had reason to believe such evidence might be found. Not only did the pat-down search locate marijuana on Julian's person, but Deputy Pieplow had noticed Julian's furtive movements in the car itself, indicating that Julian was attempting to hide something then in his possession. See State v. Ramirez, 278 Kan. 402, 408, 100 P.3d 94 (2004). In fact, it does not appear the district court concluded otherwise. The district court ruled on a different basis, that under Kansas law the marijuana in the car was not “relevant” to possession of marijuana. We think the district court's objection went more to the cumulative nature of the marijuana than to its relevance, but in any event the Fourth Amendment to the Constitution of the United States does not limit searches in this manner.
A search incident to arrest is not unreasonable whenever law enforcement officers have recovered enough evidence to support the conviction for the crime of arrest. A search is unreasonable under the second prong of Gant if there is no reason to believe evidence of the crime of arrest might be found in the car. Since Deputy Pieplow had reason to believe evidence might be found, his search of Julian's car was reasonable and not violative of the Fourth Amendment to the Constitution of the United States.
Reversed and remanded for further proceedings.
* * *
GREEN, J.: Concurring in part and dissenting in part.
I concur in the holding of the majority that the trial court's basis for granting Julian's motion to suppress evidence was error. Yet, if a trial court reaches the right result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008). Thus, because the trial court reached the right result, I dissent from that part of the majority opinion which holds that the trial court's suppression order should be reversed.
As the majority correctly states, when Julian was arrested, K.S.A. 22–2501 controlled the “ ‘permissible circumstances, purposes, and scope of a search incident to a lawful arrest.’ “ Thus, such a search “may only be conducted for the purposes listed” in the statute. State v. Conn, 278 Kan. 387, Syl. ¶ 1, 391, 99 P.3d 1108 (2004).
When Julian was arrested, K.S.A. 22–2501 read as follows:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of
(a) Protecting the officer from attack;
(b) Preventing the person from escaping; or
(c) Discovering the fruits, instrumentalities, or evidence of a crime.”
K.S.A. 22–2501 was originally enacted into law in 1970, in an effort to codify existing federal law relative to constitutionally permissible searches incident to arrest as enunciated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685,reh. denied396 U.S. 869 (1969). See State v. Youngblood, 220 Kan. 782, 784, 556 P.2d 195 (1976) (The court determined that K.S.A. 22–2501 had been patterned after the quoted portions of Chimel.).
In Chimel, the United States Supreme Court held that the search of a defendant's entire home after the defendant's lawful arrest is prohibited by the Fourth Amendment because such a search extends
“beyond [the defendant's] person and the area from within which he [or she] might have obtained either a weapon or something that could have been used as evidence against him [or her] ... [and there is] no constitutional justification, in the absence of a search warrant, for extending the search beyond that area.” 395 U.S. at 768.
Later, in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed. 2768,reh. denied453 U.S. 950 (1981), the United States Supreme Court addressed the application of the Chimel rule to the search of a vehicle incident to the lawful arrest of its occupants. Police stopped the vehicle, in which Belton and three other individuals were traveling, for speeding. The officer asked to see the driver's license and registration and discovered that none of the individuals owned the vehicle or were related to its owner. Additionally, the officer smelled burnt marijuana emanating from the vehicle and saw, in plain view, an envelope labeled “Supergold,” which he associated with marijuana. Thus, the officer placed all four men under arrest for possession of marijuana. After patting each person down, the officer placed them at separate areas of the New York Thruway to ensure that none of the men would be “ ‘in physical touching area of each other.’ “ 453 U.S. at 456. After confirming his suspicion that the envelope contained marijuana, the officer searched the passenger compartment of the vehicle and found cocaine in a black leather jacket belonging to Belton. The officer later placed all four arrestees in his patrol car and transported them to the police station.
The Court granted certiorari to consider the constitutionally permissible scope of a vehicle search in circumstances such as these. 453 U.S. at 457. To ease the application and enforcement of Fourth Amendment doctrine in this particular area, the Belton Court developed the following rule:
“[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
“... [and] the contents of any containers [open or closed] found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. [Citation omitted.]” 453 U.S. at 460.
Nevertheless, the Belton Court pointed out that its holding “in no way alter [ed] the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” 453 U.S. at 460 n. 3. Accordingly, the Belton Court held that the search of Belton's jacket was a lawful search incident to his arrest because “[t]he jacket was located inside the passenger compartment of the car ... [and] was ... ‘within the arrestee's immediate control’ within the meaning of the Chimel case.” 453 U.S. at 462–63.
The United States Supreme Court later applied Belton in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004). A police officer driving an unmarked police car, ran a check of the license tags on Thornton's vehicle after the officer's suspicions were aroused when Thornton avoided driving next to him. The license check revealed that the plates were registered to a different model of car than the one Thornton was driving. Before the officer had an opportunity to make a traffic stop, Thornton pulled into a parking lot, parked, and left his vehicle. The officer drove in behind Thornton, parked, and confronted Thornton. Thornton seemed nervous, and the officer, concerned for his safety, asked Thornton if he had any narcotics or weapons in the vehicle or on his person. Thornton responded negatively, but he agreed to a pat-down search. During the pat down, the officer felt a bulge in Thornton's pocket, and Thornton acknowledged that he had two bags of illegal narcotics, one containing three bags of marijuana and the other containing a large amount of crack cocaine. Thornton was told that he was under arrest, handcuffed, and placed in the back of the officer's patrol car. The officer then searched the passenger compartment of Thornton's vehicle and discovered a handgun under the driver's seat.
On appeal, Thornton argued that Belton only applied to situations where the officer initiated contact with the arrestee while he or she was still an occupant of the vehicle. The Thornton Court held that under Belton, “ ‘when a policeman has made a lawful custodial arrest of ... [both occupants and recent occupants] of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.’ [Citation omitted.]” 541 U.S. at 620. The Thornton Court explained:
“[W]hile an arrestee's status as a ‘recent occupant’ may turn on his [or her] temporal or spatial relationship to the car at the time of the arrest and search, it certainly does not turn on whether he [or she] was inside or outside the car at the moment that the officer first initiated contact with him.” 541 U.S. at 622.
As a result, the court determined that the search of Thornton's vehicle was valid under the Fourth Amendment principles articulated in Belton. 541 U.S. at 623–24.
Following Chimel and Belton, our Supreme Court addressed the permissible scope of a vehicle search incident to arrest in State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996). The court stated:
“In Kansas, we have a statute [K.S.A. 22–2501] that sets forth the permissible circumstances and purposes under which a search incident to an arrest can be made. The statute may possibly be more restrictive than prevailing case law on the Fourth Amendment would permit, but this does not alter the plain language of the statute.” 259 Kan. at 22.
The United States Supreme Court clarified its holding in Belton in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In Gant, the defendant was arrested for driving with a suspended license, and after he was handcuffed in the back of a patrol car, police officers searched his car and found cocaine in the pocket of his jacket. The Gant Court explained, under Chimel,
“a search incident to arrest may only include ‘the arrestee's person and the area “within his immediate control”—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.’ [Citation omitted .] That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. [Citation omitted.]” 556 U.S. at 339.
The Gant Court further declared the following:
“To read Belton as authorizing a vehicle search incident to every recent occupant's arrest would thus untether the rule from the justifications underlying the Chimel exception—a result clearly incompatible with our statement in Belton that it ‘in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.’ 453 U.S., at 460, n. 3. Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U.S. at 343.
Based upon this interpretation of Belton, the Gant Court found that because Gant was handcuffed and secured in the backseat of a patrol car when his car was searched, the police could not reasonably have believed that Gant could have gained access to his car. 556 U.S. at 344. Moreover, the Gant Court stated that Belton and Thornton were arrested for drug offenses. Gant, however, was arrested for driving with a suspended license—“an offense for which police could not expect to find evidence in the passenger compartment of Gant's car.” 556 U.S. at 344. As a result, the Gant Court held that the search of Gant's vehicle incident to his arrest violated his Fourth Amendment right to be free from unreasonable searches and seizures. 556 U.S. at 344.
Like Gant, Julian was handcuffed and placed in the backseat of a patrol car before his vehicle was searched. Moreover, the majority correctly notes that the State concedes that it cannot satisfy the first prong of the Gant, 556 U.S. at 343, holding—“that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search”—because Julian was not within reaching distance of his car when it was searched. Nevertheless, the State and the majority both contend that the search of Julian's car can be sustained under the second prong of the Gant holding.
The second prong of the Gant holding states that the search of a vehicle may be sustained if it was “ ‘reasonable [for the law enforcement officer] to believe evidence relevant to the crime of arrest might be found in the vehicle.’ [Citation omitted.]” Gant, 556 U.S. at 343. The majority does not cite any Kansas appellate court decisions that have addressed the parameters of Gant's “reasonable to believe” test. Moreover, as noted by United States Supreme Court Justice Samuel Alito, the Gant Court “did not provide an independent explanation of the basis for or the scope of this rule.” Consequently, the phrase “reasonable to believe” has created “a host of uncertainties.” Grooms v. United States, 556 U.S. ––––, 129 S.Ct. 1981, 1981, 173 L.Ed.2d 1288 (2009) (Alito, J., dissenting).
In addition, the problem with the second prong of the Gant holding is that neither Chimel nor K.S.A. 22–2501 has approved the use of a “reasonable to believe” test in a vehicle search incident to arrest. As the majority notes, the second prong of the Gant holding does not follow from Chimel, from which K.S.A. 22–2501 was patterned.
For many years, our courts have followed the Chimel rationale and have limited the physical scope of the area where police are permitted to search incident to arrest. State v. Oram, 46 Kan.App.2d 899, 913–14, 266 P.3d 1227 (2011). K.S.A. 22–2501 has limited the area where police are permitted to search to the area which was within the immediate presence of the arrestee. Because the car was no longer within Julian's immediate presence, as conceded by the State and the majority, the search of Julian's car was unreasonable. The trial court would have been correct, under these circumstances, to hold that the search of Julian's car violated Gant and the statutory limits of K.S.A. 22–2501. Thus, the trial court reached the right result in granting Julian's motion to suppress evidence.