Opinion
No. 107,510.
2013-08-9
STATE of Kansas, Appellee, v. Thomas Lavon COYAN, II, Appellant.
Appeal from Bourbon District Court; Mark Alan Ward, Judge. Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Terri L. Johnson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Bourbon District Court; Mark Alan Ward, Judge.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Terri L. Johnson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and SACHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Thomas Lavon Coyan, II, was convicted of criminal possession of a firearm and various drug crimes. He claims on appeal that the district court erred in not suppressing evidence used to convict him. He also claims various trial and sentencing errors. We are not persuaded by any of his arguments and affirm his convictions and sentences.
Coyan was arrested for his drug crimes while he was en route from Kansas City to Fort Scott. The arresting officer, Kansas Highway Patrolman Jeff Scott, had been alerted that the Kansas Bureau of Investigation (KBI) wanted Coyan stopped because he had been observed in Kansas City purchasing drugs to be transported back to Fort Scott. The local sheriff's department was also looking for Coyan. Trooper Scott knew that Coyan had been in prison for a drug conviction, that he had violated his parole, and that there was an outstanding felony warrant for his arrest.
Trooper Scott located and stopped the Monte Carlo Coyan was driving. The car was owned by his girlfriend, Jessica Wood, who was a passenger in the car and had a valid driver's license. Scott ordered Coyan out of the car, placed him under arrest, and put him in the back seat of Scott's patrol car.
Additional officers arrived about a minute after the stop. About 5 minutes later, Scott requested a drug dog to conduct an exterior sniff of Coyan's vehicle in the hopes of obtaining probable cause to search the car. Wood remained seated in the Monte Carlo. She showed Scott her valid driver's license and said she owned the car. Scott confirmed this within 9 minutes of Coyan's arrest and a minute or two later confirmed that she had auto liability insurance. Trooper Scott determined that Wood owned the Monte Carlo and possessed a valid driver's license, but he did not tell Wood that she was free to go.
About 15 minutes after the stop, the drug dog arrived at the scene. Coyan is critical of the way the car was searched, both before and after the drug dog arrived. We will discuss those criticisms later in this opinion.
In any event, the dog responded to the presence of narcotics in the center console of the Monte Carlo. The officers then searched the car and found a box containing a handgun and a locked box that was opened and found to contain illegal drugs and drug paraphernalia. Scott also found a backpack in the back seat containing a manual explaining how to manufacture drugs. Wood's purse contained a straw lined with methamphetamine residue. Wood was also placed under arrest. When Coyan was frisked, Trooper Scott found a key which was later found to open the lock on the box found in the back seat.
Coyan moved to suppress the evidence seized from the Monte Carlo, which the district court denied. Coyan was convicted at trial, sentenced to 94 months in prison, and this appeal followed.
The Search
Coyan argues that the district court erred in denying his motion to suppress the evidence seized as the result of a search that violated his rights under § 15 of the Kansas Constitution Bill of Rights and the Fourth Amendment to the United States Constitution. On appeal, we review the factual underpinnings of the district court's ruling using the substantial competent evidence test. We review de novo the ultimate legal conclusion drawn from those facts. In doing so, we do not reweigh evidence. State v. Edgar, 296 Kan. 513, 519, 294 P.3d 251 (2013).
Coyan first claims the physical evidence seized from the Monte Carlo should have been suppressed because it was obtained while the vehicle and Wood were unlawfully detained. He also argues that one of the troopers conducted an illegal search of the vehicle by removing a Styrofoam cup from the console prior to the dog sniffing the vehicle. Finally, Coyan complains that the exterior dog sniff became illegal when the officer facilitated the dog's entry into the vehicle and allowed the dog to continue searching inside the vehicle.
We perceive a threshold issue of standing which was raised by neither the parties nor the district court. Standing is a component of subject matter jurisdiction and may be raised at any time, including by this court on its own initiative. Whether a defendant has standing to challenge a search is a legal question subject to de novo review. State v. Gilbert, 292 Kan. 428, 431–32, 254 P.3d 1271 (2011). “ ‘[S]tanding’ “ is really “a shorthand method of referring to the issue of whether the defendant's own Fourth Amendment interests were implicated by the challenged governmental action.” United States v. Kimball, 25 F.3d 1, 5 n. 1 (1st Cir.1994).
The Fourth Amendment to the United States Constitution protects the public from warrantless searches by the government. Under the Fourth Amendment, individuals have the right to be free from unreasonable governmental searches and seizures. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). Evidence obtained as the result of an unconstitutional search is inadmissible and must be suppressed. Wong Sun v. United States, 371 U.S. 471, 484–87, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Fourth Amendment rights are personal rights, and, therefore, “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. [Citation omitted.]” Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 58 L.Ed. 387 (1978). See Gilbert, 292 Kan. at 435–36 (passenger lacked standing to challenge the constitutionality of a vehicle search because the passenger did not claim any ownership or possessory interest in the vehicle). It is a longstanding rule that remedies for violations of constitutional rights are only afforded to the individual who “belongs to the class for whose sake the constitutional protection is given....” Hatch v. Reardon, 204 U.S. 152, 160, 27 S.Ct. 188, 51 L.Ed. 415 (1907). Thus, an individual seeking to challenge the legality of a search as the basis for suppressing evidence must establish that he or she was the victim of a violation of his or her constitutional rights. United States v. Salvucci, 448 U.S. 83, 86–87, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).
“Subsequent attempts to vicariously assert violations of the Fourth Amendment rights of others have been repeatedly rejected by this Court. Alderman v. United States, 394 U.S. 165, 174[, 89 S.Ct. 961, 22 L.Ed. 176] (1969); Brown v. United States, 411 U.S. 223, 230[, 93 S.Ct. 1565, 36 L.Ed.2d 208] (1973). Most recently, in Rakas v. Illinois, 439 U.S. 128[, 99 S.Ct. 421, 58 L.Ed.2d 387] (1978), we held that ‘it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the [exclusionary] rule's protections.’ [Citation omitted.]” Salvucci, 448 U.S. at 86–87.
The Salvucci Court noted that this longstanding rule had been altered by the automatic standing rule, which required that the defendant establish only that the search and seizure of the evidence was unconstitutional. See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (defendants who were charged with crimes of possession had automatic standing to challenge the legality of the search which produced the evidence against them, regardless of whether they had an expectation of privacy in the area to be searched). But the United States Supreme Court overruled the automatic standing rule established in Jones, finding that the reasons justifying the rule were no longer relevant. The Supreme Court held:
“We are convinced that the automatic standing rule of Jones has outlived its usefulness in this Court's Fourth Amendment jurisprudence. The doctrine now serves only to afford a windfall to defendants whose Fourth Amendment rights have not been violated. We are unwilling to tolerate the exclusion of probative evidence under such circumstances since we adhere to the view of Alderman that the values of the Fourth Amendment are preserved by a rule which limits the availability of the exclusionary rule to defendants who have been subjected to a violation of their Fourth Amendment rights.” Salvucci, 448 U.S. at 95.
Here, Wood owned the Monte Carlo that Coyan was driving. Because Coyan was driving, Coyan may have had a possessory interest in the vehicle. See United States v. Nova–Ramirez, 210 F.3d 1128 (10th Cir.), cert. denied531 U.S. 887 (2000). But see United States v. Jefferson, 925 F.2d 1242, 1249–51 (10th Cir.1991) (a nonowner driver did not have a sufficient interest in the car to challenge a vehicle search when the owner was present during the search). But even if Coyan had a possessory interest in the vehicle and its contents, the question remains whether Coyan had standing to challenge the lawfulness of Wood's detention.
Coyan does not argue that he was illegally detained. After all, he was under arrest for an outstanding felony warrant, and he was going nowhere other than the local jail. If Coyan had been driving alone and the drug dog was called to the scene after his arrest but prior to his transportation to the jail, there would be no issue regarding an illegal detention. Instead, Coyan bases his argument on the fact that Wood and the vehicle were illegally detained after the officer confirmed that she owned the vehicle and had a valid driver's license and she should have been permitted to simply drive away from the scene of Coyan's arrest.
Coyan's reasoning, which is based entirely on Wood's constitutional rights having been violated, is contrary to the principle that Fourth Amendment rights are personal. Salvucci, 448 U.S. at 86. It does not support a violation of his constitutional rights.
Coyan also argues that one of the officers conducted an illegal search when he entered the Monte Carlo prior to the dog sniff to remove a Styrofoam cup. He relies on Arizona v. Gant, 556 U.S. 332, 335, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), for the proposition that a vehicle search incident to a recent occupant's arrest is illegal after the arrestee has been secured and cannot access the interior of the vehicle. But the officer's removal of the cup did not lead to the discovery of the evidence Coyan sought to suppress. The existence of the cup in the car was not incriminating, and it contained no incriminating evidence. The officer took the cup out of the car simply as a precaution before the use of the drug dog. The Styrofoam cup was not evidence of anything. Coyan fails to explain how removing this cup led to the discovery of the incriminating evidence that prompted him to be charged in this case.
Coyan also contends that the officer handling the drug dog facilitated the drug dog's entry into the vehicle, turning a search of the exterior into an illegal search of the interior of the car. He also complains that the drug dog remained inside the vehicle for an extended period of time.
The officers' use of a drug dog to sniff the exterior of the vehicle did not constitute a search for Fourth Amendment purposes. State v. Barker, 252 Kan. 949, 957–58, 850 P.2d 885 (1993). See United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). A drug sniff of a car's exterior does not compromise any legitimate privacy interest and, therefore, does not constitute a search. Illinois v. Caballes, 543 U.S. 405, 407–08, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005). However, if the officers facilitate the dog's entry into the vehicle, the resulting search may violate the Fourth Amendment. State v. Freel, 29 Kan.App.2d 852, 860, 32 P.3d 1219 (2001) (holding the dog's entry into the vehicle converted the sniff into a search because the officer encouraged the dog to enter the vehicle), rev. denied, 273 Kan. 1037 (2002). See United States v. Winningham, 140 F.3d 1328, 1329–31 (10th Cir.1998) (distinguishing the officer facilitating the dog's entry into the vehicle from the dog spontaneously and instinctually entering the vehicle).
Here, the officer testified at the suppression hearing that as he approached the passenger side window and realized the window was down, he dropped his hand down to prevent the dog from jumping inside the vehicle but the dog spontaneously leapt into the vehicle's open window. The officer was trained not to pull back on the leash when the dog has alerted to a smell; therefore, he pushed the dog's hind legs into the vehicle after she was already partially inside the vehicle. The officer said his dog was not trained to enter the vehicle, and he denied prompting her to jump inside. His explanation of the dog's actions was that she smelled narcotics in the vehicle. The videotape of the stop does not contradict the officer's testimony. It does not show that he directed the dog, physically or verbally, to jump through the open window. The facts before the district court were different from those in Freel, which established that the officer clearly directed the dog to enter the vehicle with voice commands or hand motions.
Once the dog was inside the vehicle, the officer did nothing to direct the search. The dog was inside the vehicle for less than a minute. This short amount of time does not constitute the excessive search time of which Coyan complains. During the dog's brief search, she indicated the presence of narcotics in the vehicle three times. Our Supreme Court has recognized that a drug dog's indication to the presence of drugs may furnish probable cause to search a vehicle. Barker, 252 Kan. at 959. Accordingly, the subsequent search of the vehicle and the seizure of contraband did not violate Coyan's Fourth Amendment right to be free from illegal searches and seizures. The district court did not err in denying Coyan's motion to suppress evidence.
Wood's Statements
The State filed a pretrial motion asking the court to determine that statements made by Wood were inadmissible hearsay at Coyan's trial. Wood had exercised her Fifth Amendment right not to testify. The court ruled that Coyan would be allowed to admit a statement that Wood claimed ownership of the purse, which contained the straw coated with methamphetamine, as a declaration against interest under K.S.A.2012 Supp. 60–460(j). But the district court refused to admit a statement by Wood that she claimed ownership of the gun because the statement did not subject her to criminal or civil liability given that she was not a convicted felon.
Finally, Coyan told the court that he had a letter in which Wood took full responsibility for owning all of the contraband in the vehicle. But because Wood exercised her right not to testify, Coyan conceded that he did not have any witness through whom he could offer the letter at trial. His counsel stated:
“[DEFENSE COUNSEL]: Well, with her taking the Fifth, there is no way I can get [the letter] in.
“THE COURT: Okay.
“[DEFENSE COUNSEL]: I have a letter where—where she delivered and signed, taking full responsibility for everything in the car.
“THE COURT: And you don't believe there's any exception to hearsay to get the letter in?
“[DEFENSE COUNSEL]: I have no other witness to offer it through, so I—.”
A defendant's right to present a defense is limited by the statutory rules of evidence and the caselaw interpreting those rules. State v. Holman, 295 Kan. 116, 134, 284 P.3d 251 (2012). Coyan argues it was error for the district court to exclude Wood's statement to the KBI agent, claiming possession of the firearm was admissible under K.S.A.2012 Supp. 60–460(j) as a statement against interest. Coyan also claims that Wood's letter was admissible as a statement against interest.
K.S.A.2012 Supp. 60–460(j) excepts from the hearsay rule statements against interest; that is, statements which, at the time made, were contrary to the declarant's interest or subjected the declarant to civil or criminal liability to the extent that a reasonable person would not have made the statement unless he or she believed it to be true. State v. Meinert, 31 Kan.App.2d 492, 495, 67 P.3d 850 (2003).
The district court ruled that Wood's statement to the KBI agent claiming ownership of the handgun was not a statement against interest because Wood was not a felon and a reasonable person would not believe that he or she was subject to civil or criminal liability by admitting possession and ownership of the handgun.
For the first time on appeal, Coyan argues that Wood could have been subjected to criminal liability under K.S.A.2010 Supp. 21–4204(a)(l) and (d), which criminalized “[p]ossession of any firearm by a person who is both addicted to and an unlawful user of a controlled substance.” Coyan also cites to:
• K.S.A.2010 Supp. 21–4705(g)(1)(A), which required a sentencing judge to add 6 months to a sentence if a firearm is used in furtherance of a drug felony;
• 18 U.S.C. § 922(g)(3), which prohibits unlawful users of controlled substances from possessing a firearm in a manner affecting interstate commerce; and
• 18 U.S.C. § 924(c)(1)(A)(i), which establishes a minimum term of imprisonment for persons possessing a handgun in furtherance of a drug trafficking crime.
Coyan did not make these assertions before the district court at the pretrial hearing on the State's motion or at trial.
There was no evidence introduced at the pretrial hearing that Wood was addicted to drugs as required by K.S.A.2010 Supp. 21–4204(a)(1) and (d). Ultimately, Coyan's sentence was not enhanced by K.S.A.2010 Supp. 21–4705(g)(1)(A) because the district court found the facts did not support a finding that he used a firearm in furtherance of a drug felony, a fact that would have been required to expose Wood to criminal liability under 18 U.S.C. § 924(c)(l)(A)(i). Further, there was no evidence to subject Wood to liability under 18 U.S.C. § 922(g)(3). There was no evidence that Wood was involved in a transaction involving drugs or guns that affected interstate commerce. There was testimony that Wood and Coyan were transporting drugs from Kansas City to Fort Scott, but there is nothing to indicate the drugs were obtained in Kansas City, Missouri, rather than Kansas City, Kansas. There was no evidence that the drugs were to be sold outside of Kansas and no evidence regarding the source or ultimate destination of the gun. Coyan fails to meet his burden of showing judicial error.
The district court did not err in excluding Wood's statement about ownership of the handgun.
Coyan also argues that the district court erred in excluding the letter containing Wood's admission that all of the contraband found in the vehicle belonged to her. But Coyan's counsel did not proffer the letter. Instead, he conceded that he could not lay a proper foundation for its admission. He said, “I have no other witness to offer it through.”
A defendant may not invite error and then complain of the error on appeal. State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011). Defense counsel conceded that he did not have a witness through whom he could admit the evidence contained within the letter, inviting the court to exclude it. Coyan cannot now claim the district court erred in this regard.
Lesser Included Instruction
Coyan next argues that the district court should have given a lesser included offense instruction for possession of methamphetamine to accompany its instruction for possession of methamphetamine with intent to distribute. Coyan did not request the lesser included offense instruction or object to the district court's failure to include it in the instructions to the jury, so we apply the clear error analysis on appeal. State v. Harris, 293 Kan. 798, 806, 269 P.3d 820 (2012). See K.S.A. 22–3414(3). First, we determine if failure to give the instruction was error. We have unlimited review over that issue. If we find error, we then determine whether we are firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. If so, we reverse. If not, the error was harmless. See State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012).
Possession of methamphetamine is a lesser included offense of possession of methamphetamine with intent to distribute. See State v. Hutcherson, 25 Kan.App.2d 501, 505, 968 P.2d 1109 (1998). Coyan was convicted of possession of methamphetamine with the intent to distribute.
There was evidence admitted that Coyan possessed methamphetamine, the lesser-included crime. But we are firmly convinced that the jury would not have convicted him of this lesser crime. Coyan never claimed that the methamphetamine found in the car was for his personal use. To the contrary, he denied he possessed the drugs and claimed the drugs belonged to Wood.
Besides, there was evidence of scales and baggies found with the drugs, consistent with the sale of drugs. KBI Agent Jason Diaz testified that the amount of methamphetamine found in the vehicle was inconsistent with personal use and suggested an intent to sell or distribute. The evidence supports a finding that Coyan was in exclusive possession of the drugs. The drugs were found in a black box, and the only key to the back box was in his possession. Text messages on Coyan's phone suggested that he was involved in the drug trade. We are firmly convinced the jury would not have found Coyan guilty of simple possession rather than the more serious crime of possession with the intent to distribute had it been given that option.
The district court's failure to instruct on possession of methamphetamine did not constitute clear error.
We note that Coyan also challenges the constitutionality of K.S.A. 22–3414(3), asserting that failing to instruct the jury of a lesser included offense violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Coyan did not raise this issue below, and he does not provide this court with any exception to the general rule that a constitutional issue not raised at the district court level cannot be raised on appeal.
Constitutional grounds for reversal asserted for the first time on appeal are not properly before us for review. See State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). Thus, we will not address this argument.
Cumulative Error
As a final criticism of his trial, Coyan argues that cumulative error mandates the reversal of his convictions because they deprived him of a fair trial. The sole instruction error we found does not constitute an accumulation of errors necessary for the cumulative error doctrine to apply. See State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).
Coyan's Sentence
Coyan contends the sentencing court's use of his prior convictions to enhance his sentence without proof to a jury beyond a reasonable doubt violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution as interpreted by Apprendiv. New Jersey, 530 U.S. 466, 477, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court has previously rejected this claim and continues to do so. See State v. Adams, 294 Kan. 171, 185, 273 P.3d 718 (2012) (reaffirming State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 [2002] ). We are bound to follow Ivory.
Affirmed.