Opinion
No. 108,350.
2013-08-2
STATE of Kansas, Appellant, v. Allan E. HALL, Appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. David Lowden, chief attorney, Nola Tedesco Foulston, former district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellant. Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
David Lowden, chief attorney, Nola Tedesco Foulston, former district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellant. Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
The district court granted Allan E. Hal's motion to suppress drugs found in the trunk of his car on the basis that the officers had probable cause to search the passenger compartment of Hall's vehicle for contraband, but not the trunk. The State appeals. Once officers have probable cause to search an automobile, they may search any part of the automobile or containers within the automobile, including containers in the trunk that may contain the object of their search. Accordingly, because it is undisputed that officers had probable cause to search the vehicle for drugs and drug paraphernalia, we reverse the district court's finding suppressing the items found in the trunk.
Factual and Procedural History
Officer Matthew Balthazor and Officer Kevin Dykstra were conducting routine surveillance on a suspected drug house. Both officers observed a vehicle park in the area of the house under surveillance. The officers saw the driver leave the vehicle and walk toward the suspected drug house. A little later, the driver returned to the vehicle, turned the lights on, and began to drive away. Before making a right turn, the driver did not initiate a turn signal. The officers began to follow the vehicle. The driver made a second right turn without the use of a turn signal, and the officers initiated a traffic stop. Balthazor observed the driver make movements which he interpreted as indicating the intent to flee or elude. In addition, the officers noted what appeared to be furtive movements by the occupants inside the car once the police lights were activated.
The vehicle pulled over, and Balthazor remained in the patrol vehicle while Dykstra approached the vehicle on the passenger side. Dykstra observed an object come out of the passenger side window, and there was a sound of glass breaking. Dykstra looked at the glass object and immediately identified it as a possible methamphetamine pipe. Dyskstra removed the passenger from the vehicle and located a syringe, a lighter, a single Percocet, rolling papers, and marijuana on his person. The passenger denied any knowledge of the pipe that was thrown from the window, explaining that he does not smoke methamphetamine, he shoots it.
Balthazor then exited the patrol vehicle and approached the vehicle on the driver side. Dykstra indicated that he was taking the passenger into custody. Dykstra removed the passenger from the vehicle. Balthazor contacted the driver, Allan Hall. Hall had to be asked several times to turn off the vehicle, remove the keys, and step from the vehicle. After Hall complied, Balthazor handcuffed him. Balthazor asked if Hall had any weapons, to which Hall responded that he had a knife. Balthazor searched Hall and found the knife. Balthazor set Hall on the curb. Balthazor saw, around Hall's neck, a metal-beaded necklace with a very large “torch” lighter on it and a small key. The officer testified that the lighter was the type of lighter commonly used “to heat contraband before ingestion.” In addition, the officer testified that based on his experience the key was for a small personal lock of some kind and could be used to unlock the handcuffs. So Balthazor removed the necklace.
Balthazor returned to the car and looked into the driver's window where he saw the set of keys left there by Hall. The key ring had a black cylindrical shaped canister attached. Based on his background as a police officer, Balthazor knew that individuals commonly use such canisters to conceal drugs. He picked up the set of keys and opened the canister which revealed a crystalline substance he believed to be methamphetamine residue. The substance was not tested. He then commenced a systematic search of the interior portion of the passenger compartment of the vehicle. He did not locate any additional drugs or weapons during his search.
Balthazor then opened the trunk of the vehicle with one of the keys on the key ring and searched the trunk. In the trunk, he saw a small personal safe which was locked. He used the key found on Hall's necklace to open the safe. Items in the safe included a firearm, methamphetamine, and cocaine.
The State charged Hall with criminal possession of a firearm by a convicted felon, possession of methamphetamine, and possession of cocaine
Hall filed a motion to suppress all of the evidence found during the search of his vehicle—including those items found within the trunk of his vehicle—arguing that the police did not have a warrant to conduct such a search and the police did not have reasonable suspicion or probable cause to forego the requirement of a search warrant.
The district court suppressed the evidence obtained during the search of Hall's trunk, including the safe that contained the firearm and drugs.
The State filed a timely interlocutory notice of appeal.
Analysis
The sole issue on appeal is whether the probable cause to search the interior of the vehicle extended to the trunk and its contents. Hall concedes that the officers had probable cause to search the interior of his vehicle for contraband.
The State contends that the district court erred when it granted Hall's motion to suppress the evidence contained in the trunk of the vehicle. Specifically, the State asserts that the officers had probable cause to search the trunk because they had probable cause to search the passenger compartment of the vehicle. The State properly raised the automobile exception as the basis for the search.
Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied131 S.Ct. 2114 (2011). Under the automobile exception to the United States Constitution's Fourth Amendment's warrant requirement, which is a subclass of the probable-cause-plus-exigent-circumstances exception, the mobility of the vehicle provides the exigent circumstances without the necessity of proving anything more. State v. Sanchez–Loredo, 294 Kan, 50, Syl. ¶ 4, 272 P.3d 34 (2012).
“ ‘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 55.
Hall suggests that the State cannot rely on the automobile exception to a warrantless search because it did not raise this argument with the district court. Moreover, Hall asserts that the State solely relied on the search-incident-to-a-lawful-arrest exception. We find this argument is not supported by the record.
It is clear that the search-incident-to-a-lawful-arrest exception applies to the warrantless search of the passenger. The only time the State discussed the search-incident-to-a-lawful-arrest exception at the suppression hearing is when the prosecutor questioned Officer Dykstra about his actions and search when he took the passenger into custody. At no other point did the State mention which exception it might rely on. However, the State did indicate that it was relying on the fact that the officers had probable cause to search the vehicle. The prosecutor stated he following:
“Ask you to deny this motion based on the grounds that the stop was good, traffic stop, that the officers had a reasonable suspicion at the time of the stop, drug activity, given the short time the individual was in and out of the complaint house.
“However, that went into clear probable cause once the meth came flying out the window. The probable cause was for the interior containing illegal items and that the individuals had committed a possession of the meth pipe.
“Then the officer, Officer Dykstra, recovered contraband, marijuana, from the passenger and the driver was told that he doesn't smoke marijuana or methamphetamine, he smokes it. Or shoots it, excuse me.... Further strengthening the probable cause to search the interior of the vehicle.
“... [T]he totality of the circumstances support a reasonable belief that the vehicle contains contraband narcotics, particularly given the furtive movement at the time just preceding the stop.
....
“All those things taken together are more than sufficient to support probable cause to search the vehicle for drugs, particularly methamphetamine.”
While the prosecutor may not have specifically stated that the State was relying on the automobile exception to the search warrant requirement, based on the prosecutor's comments, it is clear that the automobile exception was the State's main argument for the district court to deny the motion to suppress. In addition, Hall's counsel responded to this argument by conceding that there was probable cause to search the interior of the car. And finally, it was clearly the basis for the court's decision. Therefore, we reject Hall's assertion that the State did not raise this argument with the district court. The district court erred in finding that the officers had probable cause to search the interior of the vehicle but not the trunk.
Because the facts are not in dispute, the only question presented by the State is whether the district court's legal conclusion—that the trunk was illegally searched—was made in error. In essence, does the automobile exception to the warrantless search requirement give police not only the authority to search the passenger compartment of a vehicle, but also the vehicle's trunk and the contents therein? On a motion to suppress evidence, this court reviews the ultimate legal conclusion de novo. State v. Walker, 292 Kan. 1, 5, 251 P.3d 618 (2011).
The district court stated the following in its ruling:
“I believe that the officer had the right and authority to go ahead and restrain Mr. Allen. I further believe he had the right to look into this container that was on this necklace. But I don't believe the officer had the right to proceed to the trunk and then open the safe in the trunk and then open the various items contained within the safe.”
In asserting that this was the correct ruling, Hall argues that the “unproductive search of the passenger compartment” diminished Balthazor's belief that Hall committed a crime and he was required to end his search of the vehicle at that point. So we next examine whether the district court's conclusion was legally correct.
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, 294 Kan. at 57. In United States v.. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 72 L.Ed.2d 572 (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).
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, for additional evidence of contraband. See State v. MacDonald, 253 Kan. 320, 325, 856 P.2d 116 (1993) (Citing with support California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 [1991], for proposition that “ ‘police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.’ ”); State v. Press, 9 Kan.App.2d 589, 597–98, 685 P.2d 887,rev. denied 236 Kan. 877 (1984); Harder, 8 Kan.App.2d at 101.
Although the law is not dependent upon officers who have probable cause to search a vehicle actually finding something in the passenger compartment before moving on to the trunk, Hall attempts to argue that the search of the passenger compartment was not productive in associating him with any crime and therefore the officers were required to stop the search at that point. But the search clearly was productive in linking Hall to possession of contraband. First, we cannot ignore the fact that the pipe was thrown from the interior of the vehicle. The passenger denied it was his, because he claimed he injects methamphetamine, he does not smoke it. Syringes were found on the passenger. If believed, this would suggest that the pipe must belong to Hall, which was further supported by the “torch” lighter, commonly used to heat drugs, Hall had on his necklace. After leaving a suspected drug house, both the driver and the passenger were seen making furtive movements around the console when the police lights came on. As soon as the vehicle stopped, the pipe came out the window. In addition, Hall had a canister on his key chain that the officer recognized as of a type commonly used to conceal drugs. The officer opened it and observed what he believed, based on his experience, to be methamphetamine residue inside. Although the substance was not field tested and Hall was not charged with its possession, it was further indicia of probable cause to believe contraband was in the vehicle.
Because the district court determined that the officer had the authority to search the passenger compartment of the vehicle for contraband, probable cause also existed to search the trunk and any other containers therein that might conceal the object of the search, which in this case was drugs or drug paraphernalia. Therefore, the district court erred when it granted Hall's motion to suppress regarding the contents discovered in the trunk of the vehicle.
The decision of the district court suppressing the evidence recovered from the trunk of Hall's vehicle is reversed, and the case is remanded for further proceedings.
* * *
LEBEN, J., concurring:
I concur in the result and in most of the court's opinion, but I find some of the opinion's language too broad. I therefore add some additional comments to alert readers to possible limitations on the ability of officers to search a vehicle's trunk—and every closed container in it—simply because there's probable cause to search the passenger compartment. In some cases, other courts have held that officers may not do so.
The ability to search the trunk and its contents is limited by the concept of probable cause. As the majority recognizes, the United States Supreme Court noted in United States v. Ross, 456 U.S. 798, 824, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), that “probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase,” and “[p]robable 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.” Given these concepts as explained in Ross, the majority's statement that once an officer lawfully has probable cause to search the passenger compartment, that officer necessarily has probable cause to search the trunk and all containers in it for additional evidence seems too broad.
Based on Ross, the United States Court of Appeals for the Tenth Circuit has held in at least four cases that the odor of burnt marijuana (or another drug that can be smoked) in the passenger compartment of a car does not—by itself—provide a sufficient basis to search the trunk. United States v. Wald, 216 F.3d 1222, 1226 (10th Cir.2000); United States v. Parker, 72 F.3d 1444, 1450 (10th Cir.1995); United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir.1993). The court explained its reasoning succinctly in Wald while discussing the probable-cause principles announced in Ross:
“[A]lthough the smell of burnt marijuana emanating from a vehicle provides probable cause to search the passenger compartment of that vehicle, if that search fails to uncover corroborating evidence of contraband, probable cause to search the trunk of the vehicle does not exist. [Citations omitted.] This rule is premised on the common-sense proposition that the smell of burnt marijuana is indicative of drug usage, rather than drug trafficking, and because it is unreasonable to believe people smoke marijuana in the trunks of cars, the mere smell of burnt marijuana does not create the fair probability that the trunk contains marijuana.” 216 F.3d at 1226.
Even so, the Tenth Circuit has recognized that the odor of marijuana coming from the vehicle justifies a search of the passenger compartment, and if corroborating evidence of contraband ( e.g., a bag of marijuana) is then found in the vehicle, an officer has probable cause to search the trunk. United States v. Bradford, 423 F.3d 1149, 1160 (10th Cir.2005). Similarly, an “overpowering smell of raw marijuana” will justify a search of the trunk. United States v. Downs, 151 F.3d 1301, 1303 (10th Cir.1998). In that situation, “there is a fair probability that the car is being used to transport large quantities of marijuana and that the marijuana has been secreted in places other than the passenger compartment.” 151 F.3d at 1303.
Several courts have followed the Tenth Circuit's approach. The Ohio Supreme Court concluded that the mere odor of marijuana in the passenger compartment does not establish probable cause to search the trunk. State v. Farris, 109 Ohio St.3d 519, 529–30, 849 N.E.2d 985 (2006). Similarly, the courts of California and Idaho have held that if evidence of marijuana recovered in the passenger compartment of a vehicle suggests only casual use, as opposed to dealing, probable cause to search the trunk is absent. Wimberly v. Superior Court of San Bernardino Cty., 16 Cal.3d 557, 571–73, 128 Cal.Rptr. 641, 547 P.2d 417 (1976); State v. Schmadeka, 136 Idaho 595, 600, 38 P.3d 633 (Ct.App.2001).
Not all courts agree. The Maryland Court of Special Appeals concluded that the odor of burnt marijuana coming from a vehicle by itself provides probable cause to search the passenger compartment and the trunk. Wilson v. State, 174 Md.App. 434, 454–56, 921 A.2d 881 (2007). As the court noted, a contrary rule would make the trunk “a safe harbor for the transportation of drugs for both users and traffickers who use drugs.” 174 Md.App. at 455. The Missouri Court of Appeals reached a similar result, concluding that where small amounts of marijuana were found in the passenger compartment of a car, officers could search the trunk as well. State v. Irvin, 210 S.W.3d 360, 362–63 (Mo.App.2006). See generally 3 LaFave, Search & Seizure § 7.2(c) (5th ed.2012).
But to decide the appeal now before us, we need not determine whether probable cause to search a vehicle's passenger compartment always suffices to authorize a search of the vehicle's trunk and its contents. Here, an officer saw what appeared to be a meth pipe thrown from the car, one of the passengers had a key-chain canister containing meth, and another passenger had a key that fit a safe found in the trunk. There was probable cause here to search not only the passenger compartment but also the trunk and the closed containers found within it.