Opinion
No. 107,673.
2013-03-15
STATE of Kansas, Appellee, v. Erik PETTAY, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Erik Pettay appeals his conviction of felony possession of marijuana. The sole issue is whether the district court erred in denying Pettay's motion to suppress the evidence. On April 19, 2009, Pettay was arrested and placed in the backseat of a patrol car while his vehicle was searched and the marijuana was discovered. Based upon the good-faith exception to the exclusionary rule pronounced by the Kansas Supreme Court in State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (2010), cert. denied––– U.S. ––––, 131 S.Ct. 2114, 179 L.Ed.2d 908 (2011), we conclude the district court did not err in denying the motion to suppress the evidence.
Factual and Procedural Background
On April 19, 2009, Deputy Matt Tatro was following a Lincoln Town Car while on routine patrol. Tatro ran the car's tag number through his computer; it identified the car's registered owner as Pettay. Tatro asked dispatch to find Pettay's driver's license information and provide him with a physical description. Dispatch informed Tatro that Pettay's driver's license was suspended. Dispatch also provided Pettay's physical description, which matched the person he saw driving the car.
Tatro activated this emergency lights to initiate a traffic stop. Tatro approached Pettay, who acknowledged that his driver's license was suspended because of a problem with his insurance. Tatro arrested Pettay for driving with a suspended license and failure to provide proof of liability insurance. At this point, Tatro handcuffed Pettay and placed him in the backseat of his patrol vehicle.
About this time, another officer arrived on the scene. The other officer stayed with Pettay while Tatro went to the Town Car and conducted a search incident to arrest. During the search, Tatro found a multicolored glass pipe on the passenger floorboard with residue that Tatro identified as marijuana. Tatro then arrested Pettay for possession of marijuana and possession of drug paraphernalia. After being advised of his Miranda rights, Pettay acknowledged that the pipe belonged to him and that he had smoked marijuana the previous night.
On April 21, 2009, the State charged Pettay with felony possession of marijuana after a prior conviction, failure to provide proof of liability insurance, and driving with a suspended license. Pettay filed a motion to suppress the evidence Tatro found when he searched the car and Pettay's subsequent statement. Pettay argued that Tatro's search of his car violated the United States Supreme Court's holding in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). The Gant Court held:
“Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of the arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” 556 U.S. at 351.
Pettay further argued that the search of his car violated the Kansas Supreme Court's decision in State v. Henning, 289 Kan. 136, 209 P.3d 711 (2009). The Henning court found that based upon the decision in Gant,K.S.A. 22–2501(c) was facially unconstitutional under the Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights. 289 Kan. at 148–49, 209 P.3d 711. That statute had allowed a law enforcement officer conducting a lawful arrest to execute a warrantless search of the area within the subject's immediate presence for the purpose of discovering evidence of “a” crime, as opposed to discovering evidence of the offense of arrest. 289 Kan. at 138, 209 P.3d 711.
In his motion, Pettay acknowledged that both Gant and Henning were released after his arrest and search. Tatro arrested Pettay and searched his car on April 19, 2009. The Gant decision was released 2 days later, on April 21, 2009. Gant, 556 U.S. at 332. The Kansas Supreme Court released its decision in Henning about 2 months later, on June 26, 2009. Henning, 289 Kan. at 136, 209 P.3d 711. Pettay maintained that although it appeared Tatro followed the law in place at the time of the search, the State should not be allowed to admit the evidence based on the fact that Tatro acted in good faith. Pettay pointed out that neither the United States Supreme Court in Gant nor the Kansas Supreme Court in Henning had discussed the possibility of an exception to their holdings when an officer had acted in good faith.
The State filed a response to Pettay's motion. The State conceded that the search of Pettay's car violated Gant but contended that the fruits of the search should be admitted under the good-faith exception to the Fourth Amendment created in United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The State argued that Tatro's search was in good faith because he was following the law in place at the time of the search.
On April 12, 2010, the district court held a hearing on the motion to suppress. At the hearing, Tatro testified that Pettay's pipe was not in plain view until Tatro opened the car door. Tatro further acknowledged that Pettay was under arrest and in the patrol car when Tatro searched the Town Car, so there was no concern for officer safety. Finally, Tatro acknowledged that he did not intend to find evidence regarding the crimes of driving with a suspended license or no proof of insurance when searching the Town Car.
After hearing the evidence, the district court granted the motion to suppress. The district court noted that when the United States Supreme Court and the Kansas Supreme Court make a constitutional ruling, the ruling generally applies to every case that is pending at that time, including cases on appeal. The district court determined that a good-faith exception did not apply because neither the United States Supreme Court nor the Kansas States Supreme Court had discussed the possibility of such an exception.
The State filed an interlocutory appeal. On November 19, 2010, the Kansas Supreme Court released its decision in Daniel, in which the court held that the exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance upon K.S.A. 22–2501(c) prior to the United States Supreme Court's ruling in Gant. 291 Kan. at 493, 242 P.3d 1186. On June 21, 2011, this court reversed the district court's order on Pettay's motion to suppress and remanded the case for further proceedings. This court acted pursuant to Supreme Court Rule 7.041 (2012 Kan. Ct. R. Annot. 61), issuing a summary order and noting that the court was relying on our Supreme Court's decision in Daniel.
On September 15, 2011, Pettay filed a motion to reconsider. The motion was based on this court's decision in State v. Dennis, No. 101,052, 2011 WL 425987 (Kan.App.2011) (unpublished opinion), rev. granted May 31, 2011. The facts in Dennis centered on the search of a car incident to the occupant's arrest and after his removal from the vicinity of the vehicle. The search occurred on November 16, 2007, well before Gant was decided. A majority of the Dennis panel held that Daniel did not mandate application of the good-faith exception to the exclusionary rule because the officer in Dennis did not claim to have relied on K.S.A. 22–2501(c). 2011 WL 425987, at *3.
On October 20, 2011, the district court issued an opinion denying Pettay's motion to reconsider. The district court found that it was bound to follow our Supreme Court's ruling in Daniel. On November 17, 2011, the district court held a bench trial on stipulated facts and found Pettay guilty on all charges. The district court imposed sentence on February 3, 2012. Pettay timely appealed the district court's judgment.
Analysis
Pettay argues the district court incorrectly found that our Supreme Court's ruling in Daniel controls the outcome of the case. To the contrary, Pettay argues that the analysis by this court in Dennis is applicable to his case because Tatro never expressly stated that he relied on K.S.A. 22–2501. Pettay also argues that Tatro acted outside the scope of K.S.A. 22–2501 by searching outside of Pettay's immediate presence. Pettay's arguments affect only his conviction of felony possession of marijuana; Pettay makes no arguments on appeal challenging his convictions of failure to provide proof of liability insurance and driving with a suspended license. The State maintains that the outcome of this case is controlled by Daniel and the district court did not err in denying the motion to suppress.
In reviewing the district court's ruling on a motion to suppress evidence, an appellate court adopts the factual findings of the district court if the findings are supported by substantial competent evidence. The appellate court, however, possesses unlimited review of the ultimate legal conclusion drawn from the factual findings. In the present case, the facts are not substantially in dispute; therefore, this court exercises de novo review of the suppression question. See Daniel, 291 Kan. at 495, 242 P.3d 1186.
The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. This protection is also guaranteed by § 15 of the Kansas Constitution Bill of Rights. State v. Ramirez, 278 Kan. 402, 404–05, 100 P.3d 94 (2004). Generally, warrantless searches and seizures are per se unreasonable unless they fall within one of the recognized exceptions to the warrant requirement. Daniel, 291 Kan. at 496, 242 P.3d 1186. The State bears the burden of demonstrating that a challenged search was lawful. Henning, 289 Kan. at 148, 209 P.3d 711.
Neither the Fourth Amendment nor § 15 of the Kansas Constitution Bill of Rights expressly prohibits the admission of evidence obtained in violation of their protections. Rather, the United States Supreme Court created the exclusionary rule, which prohibits the use of unconstitutionally obtained evidence in a criminal proceeding against the victim of the illegal search. Illinois v. Krull, 480 U.S. 340, 347, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987). The exclusionary rule is not the victim's personal constitutional right; instead, it operates to protect the rights articulated in the Fourth Amendment through deterrence. Leon, 468 U.S. at 906. In Krull, the United States Supreme Court said that “application of the exclusionary rule properly has been restricted to those situations in which its remedial purpose is effectively advanced.” 480 U.S. at 347.
Here, the State concedes that Tatro's search of Pettay's car violated the rules created in Gant and Henning. As the district court noted, the United States Supreme Court has held that a newly declared constitutional rule should be applied to criminal cases pending on direct review. See Griffith v. Kentucky, 479 U.S. 314, 322–23, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Under this principle, the constitutional rules pronounced in Gant and Henning are applicable to Pettay's case because the decisions were released while Pettay's criminal case was in progress. Thus, unless some exception applies, it would follow that the evidence obtained during Tatro's search of Pettay's car should be inadmissible under the exclusionary rule. See Krull, 480 U.S. at 347.
But the law contemplates a “good-faith exception” to the exclusionary rule in some instances. See Leon, 468 U.S. at 900. Applying the principle of Leon, the United States Supreme Court and our Kansas Supreme Court have repeatedly held “that a good-faith exception to the exclusionary rule might be applicable if a search was conducted pursuant to a warrant that was later to be found lacking in probable cause.” Daniel, 291 Kan. at 497, 242 P.3d 1186. In Daniel, the Kansas Supreme Court extended the good-faith exception to allow evidence obtained during a search to be admitted if the officer objectively and reasonably relied on a statute in place at the time of the search, even if the statute was later held unconstitutional. 291 Kan. at 500, 242 P.3d 1186. The question before this court is whether, under Daniel, the good-faith exception allows for the admission of the evidence seized during Tatro's search of Pettay's car.
The facts of Daniel are markedly similar to Pettay's circumstances. Daniel was convicted of possession of methadone, which was found during a warrantless search of her vehicle immediately after she was arrested for driving with a suspended license. At the time of the search, Daniel was secured in the searching officer's patrol car and was being monitored by a second officer. The officer later admitted he was not at risk during the search. The district court found the search was lawful under K.S.A. 22–2501(c), which was in place at the time of Daniel's arrest. The statute stated, in its entirety:
“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.
While Daniel was appealing her conviction based on the warrantless search of her vehicle, our Supreme Court issued its decision in Henning declaring K.S.A. 22–2501(c) unconstitutional. Daniel, 291 Kan. at 491, 242 P.3d 1186. In addressing the effect of the ruling in Henning, the Daniel court held:
“[W]e find that at the time of the search of Daniel's vehicle and purse that a reasonable officer would not have known that K.S.A. 22–2501(c) was unconstitutional. The officer's objectively reasonable reliance on K.S.A. 22–2501(c) is demonstrated by (a) the substantial case law precedent across the country upholding similar searches, which lends added facial validity to the statute; (b) an appellate court decision directly on point that was valid at the time of Daniel's search; and (c) the statute's legislative history.” 291 Kan. at 505, 242 P.3d 1186.
Pettay advances two reasons why Daniel does not control the admissibility of the evidence obtained during Tatro's search. First, Pettay claims that “[t]here is no evidence in the record that Officer Tatro relied on the constitutionality of K.S.A. 22–2501 for authorization to search Mr. Pettay's vehicle.” Second, Pettay argues that Tatro's search exceeded the scope of K.S.A. 22–2501 by searching outside of Pettay's presence; thus, this court should not apply the good-faith exception.
Pettay first argues: “Without evidence to show that Officer Tatro relied on [K.S.A. 22–2501(c) ] that was later declared to be unconstitutional or that he was searching for evidence of any crime, the good-faith exception in Daniel does not apply.” He asks that this court follow the analysis articulated by a panel of this court in Dennis, 2011 WL 425987. Dennis was convicted of several crimes related to the possession and manufacture of methamphetamine; the evidence of these crimes was found during a warrantless search of his vehicle. Dennis was initially arrested for transporting an open container. He was on a curb in handcuffs when the arresting officer conducted a search incident to arrest of Dennis' car and found evidence of the drug crimes. 2011 WL 425987, at * 1. Dennis appealed his convictions, arguing that the evidence found during the search of his car should have been suppressed because it violated Gant and Henning. As in Daniel and the present case, Gant and Henning were decided while Dennis' case was pending. The Dennis court held that Dennis' circumstances were distinguishable from Daniel because the officer in Dennis never testified that he was relying on the constitutionality of K.S.A. 22–2501(c) when he searched Dennis' vehicle. Dennis, 2011 WL 425987, at *3.
Pettay fails to recognize the initial problem with his reliance on Dennis—this court already had the opportunity to consider Dennis in its prior ruling in this case. The Dennis decision was released on February 4, 2011. This court issued its first ruling in this casethe summary order stating that Daniel controlled-on June 21, 2011, several months after Dennis was decided. Thus, the analysis in Dennis was available to this court when it made its initial ruling in this case, and for that reason alone the prior ruling should not be reconsidered in light of Dennis.
Furthermore, we find that the Dennis court misinterpreted Daniel as requiring an express statement from the law enforcement officer that he or she relied on K.S.A. 22–2501(c) when conducting the search incident to arrest. The Daniel decision makes no such ruling. At most, the Daniel court mentions that the officer testified at the suppression hearing that he was making a search incident to arrest for the purpose of discovering fruits, instrumentalities, or evidence of a crime. This language conforms to K.S.A. 22–2501(c). The decision does not hold that the searching officer must declare he or she was relying on the statute in order to find that the officer was doing so. See Daniel, 291 Kan. at 490, 242 P.3d 1186. In her dissent in Dennis, Judge Standridge makes exactly this point. 2011 WL 425987, at *7–9 (Standridge, J., dissenting). Here, there is no dispute over the fact that Tatro did not expressly state what law he relied on when he thought that his search incident to arrest of Pettay's car was constitutional. Nevertheless, under Daniel, it appears that such testimony is unnecessary to find that the good-faith exception applies.
Pettay next argues that Tatro acted outside the scope of K.S.A. 22–2501 by searching outside of Pettay's immediate presence; thus, Pettay argues that the good-faith exception does not apply. To this end, Pettay relies on State v. Oram, 46 Kan.App.2d 899, 266 P.3d 1227 (2011). Oram was convicted of possession of marijuana, which was found when her car was searched without a warrant during a search incident to arrest. During a routine traffic stop on October 2, 2008, Oram was arrested for obstruction and placed in the backseat of a patrol car. Meanwhile, the arresting officers searched her car and found marijuana. 46 Kan.App.2d at 902, 266 P.3d 1227.Gant was released the following year, while Oram's case was pending.
Oram appealed her conviction, arguing that the marijuana found in her car should have been suppressed because the search violated Gant and the good-faith exception did not apply. 46 Kan.App.2d at 903, 266 P.3d 1227. The court agreed that the search of Oram's car violated Gant. The court then addressed whether the good-faith exception saved the State's evidence that was obtained in the search. Oram raised two arguments as to why the good-faith exception did not apply: (1) The officers' actions were unreasonable under K.S.A. 22–2501(c) and existing Kansas caselaw; and (2) the officers' search was unreasonable because the car was no longer within Oram's reach. 46 Kan.App.2d at 910, 266 P.3d 1227.
Addressing Oram's first argument, the court relied on Daniel and held that the good-faith exception to the exclusionary rule was applicable to the officers' search of Oram's car. Specifically, the court stated “that when the search was made, K.S.A. 22–2501(c) allowed the deputies to search the car for evidence of a crime rather than just for the crime that Oram was originally arrested for, that is, obstruction.” Oram, 46 Kan.App.2d at 911, 266 P.3d 1227.
In addressing Oram's second argument, the court reviewed Kansas cases in place at the time of Oram's arrest and search. See State v. Youngblood, 220 Kan. 782, 556 P.2d 195 (1976); State v. Vandevelde, 36 Kan.App.2d 262, 138 P.3d 771 (2006). Relying on those cases, the Oram court determined that “well-trained deputies in Kansas would not have believed in good faith that they had the authority to search a car after the defendant had been handcuffed, searched, and placed in the back seat of a patrol car on October 2, 2008.” 46 Kan.App.2d at 914, 266 P.3d 1227. Thus, the court agreed with Oram that the good-faith exception did not apply to save the search. 46 Kan.App.2d at 916, 266 P.3d 1227.
But upon closer review, we find that Youngblood and Vandevelde do not support the conclusion reached by the Oram court. In Youngblood, the court held that the search of a house went far beyond the area within the arrested person's immediate presence. 220 Kan. at 784, 556 P.2d 195. Our Supreme Court based its decision on the fact that the defendant in that case was arrested, under control, and searched before officers searched the house. See 220 Kan. at 783, 556 P.2d 195. But Youngblood is distinguishable as that case involved the search of a house as opposed to the search of a vehicle.
In Vandevelde, our court held that the search of the defendant's vehicle was not reasonably conducted for one of the purposes under K.S.A. 22–2501; thus, the search could not be justified as a valid search incident to a lawful arrest. 36 Kan.App.2d at 275, 138 P.3d 771. It is significant to note that when Vandevelde was decided, K.S.A. 22–2501(c) limited a search incident to arrest to the purpose of discovering evidence of the crime of arrest. See 36 Kan.App.2d at 270, 138 P.3d 771.Vandevelde stands for the proposition that a search incident to an arrest must be conducted only for one of the purposes under K.S.A. 22–2501, and the case was not decided based on the fact that the vehicle search was not within the defendant's immediate presence. See 36 Kan.App.2d at 275, 138 P.3d 771.
Contrary to the conclusion reached in Oram, we conclude that well-trained law enforcement officers in Kansas could not have known that it was unlawful to search a car after the defendant had been handcuffed and placed in the backseat of a patrol car until the United States Supreme Court's decision in Gant. This is the same conclusion reached by our Supreme Court in Daniel, which explains the court's holding that the good-faith exception for a law enforcement officer conducting a vehicle search incident to arrest is applicable for “searches occurring before Gant was decided on April 21, 2009.” Daniel, 291 Kan. at 493, 242 P.3d 1186. As it happens, the search of Pettay's car occurred on April 19, 2009, two days before Gant was decided.
As the State points out, the factual similarities between Pettay's case and Daniel make it difficult to find that Daniel does not control. When Tatro searched Pettay's vehicle on April 19, 2009, his conduct was lawful based on the law in place on the date of the search. The purpose of the exclusionary rule would not be served by suppressing the evidence obtained as a result of the search. This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied, 294 Kan. –––– (2012). Pettay has failed to show that the circumstances of his case are distinguishable from Daniel. Accordingly, we conclude the district court did not err in denying Pettay's motion to suppress the evidence.
Affirmed.