Opinion
No. 106,272.
2012-05-25
STATE of Kansas, Appellant, v. Jeremiah J. SPECHT, Appellee.
Appeal from Franklin District Court; Thomas H. Sachse, Judge. James T. Ward, assistant county attorney, Heather R. Jones, county attorney, and Derek Schmidt, attorney general, for appellant. Sarah G. Swain, of The Swain Law Office, of Lawrence, for appellee.
Appeal from Franklin District Court; Thomas H. Sachse, Judge.
James T. Ward, assistant county attorney, Heather R. Jones, county attorney, and Derek Schmidt, attorney general, for appellant. Sarah G. Swain, of The Swain Law Office, of Lawrence, for appellee.
Before MALONE, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
BUSER, J.
This case involves an interlocutory appeal filed by the State of Kansas pursuant to K.S.A.2011 Supp. 22–3603. The district court granted Jeremiah Specht's motion to suppress evidence seized by the Ottawa Police Department during a warrantless search of the enclosed camper shell attached to the bed of his truck. The State argues that the officers had probable cause to search the camper shell after they lawfully discovered marijuana in the cab of the truck. We agree. Accordingly, we reverse the suppression order and remand for further proceedings.
Factual and Procedural Background
On the evening of March 29, 2010, Sergeant Steven Lemons, of the Ottawa Police Department, was conducting a routine building check at a Store It Safe storage facility located in Ottawa, Kansas. At about 9:08 p.m., Sergeant Lemons noticed an extended cab truck with a camper shell backed into one of the storage units at an angle. The storage unit was open and a man and woman, wearing headband flashlights, were inside. Sergeant Lemons found this situation “a little suspicious” because there was no electricity inside the storage unit, and for some reason, the individuals were not using the truck's headlights to illuminate the dark space. Several burglaries had recently occurred at the storage facility, prompting Sergeant Lemons to investigate this situation.
Sergeant Lemons approached the individuals, informed them he was doing a building check, and asked what they were doing. The individuals told Sergeant Lemons that they were retrieving clothing from the storage unit. Sergeant Lemons then asked them for their name and date of birth so he could log them in on his building checklist. According to Sergeant Lemons, the two individuals were “very defiant and very reluctant to communicate.” Sergeant Lemons requested a backup unit because the individuals' behavior “just didn't seem right.” According to Sergeant Lemons, he also informed the individuals that he was “ ‘going to place them both in custody until [he] got to the bottom of [his] investigation.’ “ A few minutes later, the male identified himself as Jeremiah Specht, and the female, Tiffany Burke, provided Sergeant Lemons with her Kansas driver's license.
Sergeant Lemons asked the dispatcher to conduct a warrant check. Shortly thereafter, the dispatcher informed Sergeant Lemons that Specht had three outstanding warrants for his arrest. Sergeant Lemons subsequently arrested Specht and placed him in a patrol car.
Sergeant Lemons then proceeded to look inside the storage unit to insure no one was hiding inside it. According to Sergeant Lemons, the unit contained “a lot of items,” but he did not look through anything or open any containers. He did notice, however, that the unit contained Rubbermaid tubs with either Specht's or Burke's name, a gun safe, ammunition, a bottle of whiskey, and numerous boxes.
According to Sergeant Lemons, he questioned Burke about who owned the storage unit, and she provided him with a receipt that indicated the unit belonged to her. Sergeant Lemons confirmed this information by calling the phone number on the receipt. Burke also showed Sergeant Lemons the storage unit's lock and key.
The truck was registered to Specht and his mother, and when Sergeant Lemons questioned Specht about the disposition of the truck, Specht told Sergeant Lemons he could release the truck to Burke. Sergeant Lemons then informed Burke that Specht wanted to release the truck to her, and that she was free to leave. Sergeant Lemons walked Burke to the cab of the truck for officer safety purposes, because he had seen a gun safe and ammunition inside the storage unit, and as they were walking, he asked Burke if there were any weapons inside the truck. After Burke said “no,” Sergeant Lemons asked if he could search the truck, and Burke again said “no .” When they reached the driver's side of the truck, Burke opened the door and entered the cab of the vehicle. Sergeant Lemons and Officer James Kerns, who were standing “within a couple feet, right at the door” of the truck, “smelled a strong odor of marijuana coming from inside the cab area.”
Sergeant Lemons asked Burke twice to step out of the vehicle, but Burke resisted and told Sergeant Lemons that he “ ‘needed to get a search warrant.’ “ After further resistance from Burke, Sergeant Lemons arrested her for obstruction and disorderly conduct because she was “interrupting [the] investigation.”
After Burke was secured in the back of a patrol car, Sergeant Lemons and Officer Ryan Murphy searched the cab area of Specht's truck. The officers found a loaded handgun in a pair of jeans between the front seats, a small container with approximately 3.5 grams of marijuana inside, a loaded concealed rifle, ammunition, a knife, gloves, some two-way radios, cotton gloves, two checkbooks, loose dollar bills, several sequential dollar bills in a tear out style book, a pipe containing marijuana residue, and a lighter in the dash. According to Officer Murphy, the handle of the handgun and its tan holster were visible in plain view, prior to the search, from the driver's side door of the truck.
After the officers were finished searching the cab of the truck, Sergeant Lemons asked Specht who he would like the truck released to given Burke's arrest. Specht told Sergeant Lemons that he wanted his truck released to his friend Nick, but he refused to provide Sergeant Lemons with Nick's last name and Specht was unable to provide Nick's phone number. Because Sergeant Lemons had no way to contact Nick, Sergeant Lemons asked Specht to give him another name. Specht then told Sergeant Lemons that he wanted to release the truck to his mother; however, Specht indicated it would take her an hour to arrive at the scene. At this point, Sergeant Lemons decided to tow the vehicle.
According to Sergeant Lemons, he believed there was additional marijuana in the camper shell, so he instructed Officer Murphy to conduct a search. Sergeant Lemons also told Officer Murphy to do an inventory of the items found, which according to Sergeant Lemons, is the standard protocol when a vehicle is going to be towed. Officer Murphy searched the bed of the truck, and inside the unlocked, fully enclosed camper shell, Officer Murphy found bedding, male and female items, several bags and backpacks, a cooler, food items, and four prescription pill bottles inside a black travel type bag. One of the pill bottles contained Naproxen, a nonscheduled drug; the second contained methadone, a schedule 2 drug available by prescription only; the third contained Cyclobenzaprine Hcl, a nonscheduled drug available by prescription only, and morphine sulfate, a schedule 2 drug available by prescription only. The fourth pill bottle held pill fragments. The pill bottle containing fragments and the bottle containing Cyclobenzaprine Hcl and morphine sulfate had Specht's name on them.
As a result of the search and seizure, the State charged Specht with two counts of possession of a controlled substance, one count of misdemeanor possession of marijuana, and one count of misdemeanor possession of drug paraphernalia.
Prior to trial, Specht filed a “Motion to Suppress Inventory Search” arguing that Sergeant Lemons did not have reasonable grounds to impound his truck. In particular, Specht asserted the inventory search of his vehicle was unlawful and the evidence found should be suppressed as “fruit of the poisonous tree.”
Three days later, Specht filed a “Motion to Suppress Stop, Arrest, and Evidence” requesting exclusion of all of the evidence found because of his illegal stop, detention, arrest, and search. Specifically, Specht argued that no reasonable articulable suspicion existed to detain him. Specht also argued that even if Sergeant Lemons did have reasonable suspicion, the search of his truck exceeded the lawful scope of the original detention. Specht contended that once Burke dispelled Sergeant Lemons' suspicion that criminal activity was afoot, she was entitled to leave the scene. However, according to Specht, Sergeant Lemons continued to detain Burke, and the smell of marijuana and the observation of the gun were the direct result of this illegal continued detention rendering the search of the truck illegal.
The State responded that Sergeant Lemons had reasonable suspicion to stop Specht and Burke because he observed conduct which led him to reasonably conclude that a burglary had been committed, was being committed, or was about to be committed. Additionally, the State contended that even if Sergeant Lemons did not have reasonable suspicion, Sergeant Lemons was entitled to ask Specht and Burke for their names and request identification for investigative purposes. The State also argued the police officers had probable cause to search the cab of the truck due to the smell of marijuana, and the discovery of marijuana inside the cab of the truck gave the officers probable cause to search the bed of the truck for additional drugs. The State explained that although Officer Lemons used the word “inventory search,” this exception to the warrant requirement was not applicable because the officers had probable cause to conduct the search.
The district court held a hearing on Specht's motions to suppress, and after hearing evidence and the arguments of the parties, the district court issued its ruling denying in part and granting in part Specht's motions to suppress.
The district court denied the motions to suppress with regard to the evidence found in the cab of Specht's truck. The district court determined that although Sergeant Lemons' investigation exceeded its lawful scope, the taint of the unlawful detention was attenuated when Sergeant Lemons discovered Specht had outstanding arrest warrants. Additionally, the district court found that once Specht was arrested, it was proper for the officers to follow Burke to the truck for officer safety purposes. Thus, the resulting search of the truck's cab was lawful because the officers had probable cause to conduct the search based upon the odor of marijuana and the weapon in plain view.
The district court, however, granted the motion to suppress with respect to the evidence discovered in the camper shell attached to the bed of Specht's truck. The district court found the search was not a proper inventory search because the standards for a proper inventory search were not satisfied and “it was unreasonable not to allow [Specht's] mother or friend an hour to remove the truck.” In addition, relying upon State v. Kirby, 12 Kan.App.2d 346, 744 P.2d 146 (1987), aff'd242 Kan. 803, 751 P.2d 1041 (1988), the district court found the officers did not have probable cause to search the camper shell. The district judge explained his decision as follows:
“I would further find that it's not a proper search because there wasn't probable cause to search the locked camper shell on the bed of the truck. There's simply no probable cause, and there's no odors coming from the bed, and it was locked, and there's no need to search that for weapons for officer safety or anything of that nature ‘cause by that point in time both defendant and his girlfriend were—could not have been a threat to the officers.”
The State filed a timely notice of interlocutory appeal pursuant to K.S.A.2011 Supp. 22–3603.
Motion to Suppress Evidence
The State contends the district court committed reversible error when it granted Specht's motion to suppress because the officers had probable cause to search the camper shell attached to the bed of Specht's truck for marijuana. Specht counters that while probable cause existed to search the cab of the truck, the scope of the officers' search was limited to the truck's passenger compartment. Specht did not cross-appeal from the district court's rulings that were adverse to him, i.e., the legality of the initial stop, arrest, or the search of the cab of the truck. Therefore, the narrow question presented for our review is whether the officers had probable cause to search the camper shell attached to the bed of Specht's truck.
On a motion to suppress evidence, this court reviews the factual findings underlying the district court's suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). Kansas appellate courts have regularly applied this dual standard of review of fact and law on a State's appeal of a grant of a defendant's motion to suppress. See State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009) (applying standard in determining suppression under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694,reh. denied385 U.S. 890 [1966] );State v. Huff, 278 Kan. 214, 219, 92 P.3d 604 (2004) (applying standard where State failed to justify a warrantless search). Because neither party challenges the district court's findings of fact, we are presented solely with a legal question over which we exercise unlimited review. See May, 293 Kan. at 862.
The Fourth Amendment to the Constitution of the United States and § 15 of the Kansas Constitution Bill of Rights protect each individual from unreasonable searches and seizures by the government. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The exclusionary rule, a judicially created remedy, operates to protect Fourth Amendment rights through deterrence by preventing the use of unconstitutionally obtained evidence against the subject of the illegal search. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied ––– U.S. –––– (2011). The State bears the burden of proof upon the hearing of a motion to suppress evidence; it must prove the lawfulness of the search and/or seizure. K.S.A. 22–3216(2); State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010).
Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement. Daniel, 291 Kan. at 496. In Kansas, the recognized exceptions to the warrant requirement include consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view or feel; and administrative searches of closely regulated businesses. State v. Sanchez–Loredo, 294 Kan. 50, ––––, 272 P.3d 34, 38 (2012).
In this case, it is undisputed there was no warrant authorizing the search of the camper shell. The State asserts, however, the search was legal under the automobile exception, a subclass of the probable cause plus exigent circumstances exception to the warrant requirement. See Sanchez–Loredo, 294 Kan. 50, Syl. ¶ 4. Specht argues, and the district court found, that the Ottawa Police Department did not have probable cause to search the camper shell of Specht's truck because there were no odors emanating from the bed of the truck, and both Specht and Burke were in custody eliminating the need to conduct a search for officer safety purposes. Additionally, Specht contends “the scope and duration of a seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper. [Citation omitted.]” As a result, Specht argues the officers only had probable cause to search the passenger compartment of the truck because the “object of the search,” weapons and the source of the marijuana odor, was discovered in the interior of the vehicle.
Under the automobile exception to the warrant requirement, police officers may search an automobile, without a warrant, as long as probable cause-exists to believe the vehicle contains the fruits, instrumentalities, or evidence of a crime. Sanchez–Loredo, 294 Kan. 50, Syl. ¶ 4. A vehicle's mobility fulfills the requirement of exigent circumstances, “without the necessity of proving anything more.” 294 Kan. 50, Syl. ¶ 4. “ ‘Probable cause’ to search a vehicle can be established if the totality of the circumstances indicates there is a ‘fair probability’ that the vehicle contains contraband or evidence. [Citation omitted.]” 294 Kan. at ––––.
If probable cause exists to justify the search of a lawfully stopped vehicle, the permissible scope of the search generally extends to “every area of the vehicle and its contents which might reasonably contain the contraband [or object of the search].” State v. Jaso, 231 Kan. 614, Syl. ¶¶ 3, 5, 648 P.2d 1 (1982); see Sanchez–Loredo, 272 P.3d at 39. In United States v.. Ross, 456 U.S. 798, 824, 72 L.Ed.2d 572, 102 S.Ct. 2157 (1982), the United States Supreme Court, explained the scope of a warrantless automobile search as follows:
“The scope ... is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.”
In other words, “[t]he scope of a warrantless search [of an automobile] based on probable cause is no narrower—and no broader—than the scope of a search authorized by a warrant supported by probable cause”; the police may conduct a search that is as thorough as a magistrate could authorize by warrant. Ross, 456 U.S. at 823;State v. Harder, 8 Kan.App.2d 98, 101, 650 P.2d 724 (1982).
The district court held it was proper for the officers to follow Burke to the truck for officer safety purposes, and the resulting search of the cab of the truck was lawful because the officers had probable cause to conduct the search based upon the odor of marijuana and the weapon in plain view. However, the district court limited the scope of the officers' search to the cab of the truck apparently on the ground that the camper shell could not reasonably contain the object of the search, as no odor of marijuana was emanating from that area of the truck.
As support for its contention, the district court relied on State v. Kirby, 12 Kan.App.2d 346; however, Kirby does not support the district court's conclusion. Kirby involved a search performed incident to a Terry stop instead of a search premised upon the automobile exception to the warrant requirement. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). After finding that the deputy had a reasonable and articulable suspicion to justify the Terry stop of Kirby's truck, this court held that the search of the bed of Kirby's truck exceeded the lawful scope of a Terry search. 12 Kan.App.2d at 354–55. Furthermore, this court found that the observation of marijuana in the cab of Kirby's truck—subsequent to the search of the truck bed—which led officers to conduct an inventory search, did not justify the initial search of the truck bed. The State failed to present evidence justifying the continued detention of Kirby after the deputy's initial questioning, and the illegal detention directly affected the ability of the officers to observe the marijuana in the truck, 12 Kan.App.2d at 355–56.
It appears the district court overlooked the fact that the search of Specht's camper shell was not premised merely upon the odor of marijuana detected in the passenger compartment; the officers found corroborating evidence of contraband in the cab of Specht's truck prior to their search of the camper shell. As noted by the State, once a police officer lawfully discovers contraband in the passenger compartment of a vehicle, probable cause exists to search the remainder of the vehicle, including a trunk or camper shell, for additional evidence of contraband. See Harder, 8 Kan.App.2d at 101;State v. Press, 9 Kan.App.2d 589, 597–98, 685 P.2d 887,rev. denied 236 Kan. 877 (1984).
In Harder, 8 Kan.App.2d at 99, 101, this court held that police officers had probable cause to search an unlocked toolbox located in the rear of Harder's truck after the officers discovered a baggie of marijuana in the passenger compartment. Similarly, in Press, 9 Kan.App.2d at 597–98, this court held that after police officers discovered “green leafy substances” believed to be marijuana in the passenger compartment of Press' vehicle, the officers had probable cause to believe that Press' vehicle contained additional contraband, which entitled them to search the vehicle's trunk.
In conclusion, we hold that after Sergeant Lemons and Officer Murphy found marijuana in the cab of Specht's truck, sufficient probable cause existed to search the remainder of the truck, including the enclosed camper shell, as it was reasonable for the officers to believe that the truck might contain additional evidence of illegal drugs. Accordingly, the district court erred when it granted Specht's motion to suppress the evidence found in the camper shell of his truck.
Reversed and remanded for further proceedings.