State v. Fitzgerald

192 P.3d 171, 286 Kan. 1124, 2008 Kan. LEXIS 463
CourtSupreme Court of Kansas
DecidedSeptember 12, 2008
Docket95,812
StatusPublished
Cited by2 cases

This text of 192 P.3d 171 (State v. Fitzgerald) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fitzgerald, 192 P.3d 171, 286 Kan. 1124, 2008 Kan. LEXIS 463 (kan 2008).

Opinion

192 P.3d 171 (2008)

STATE of Kansas, Appellee,
v.
Shaun P. FITZGERALD, Appellant.

No. 95,812.

Supreme Court of Kansas.

July 20, 2007.
September 12, 2008.

*172 Kristen B. Patty, of Wichita, argued the cause, and Kurt P. Kerns, of Ariagno, Kerns, Mank & White, L.L.C., of Wichita, was with her on the brief for appellant.

Kristi L. Barton, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

Defendant Shaun P. Fitzgerald challenges rejection of his motion to suppress drug evidence found in his girlfriend's truck after a traffic stop led to his arrest for driving on a suspended license. He argues that his possession of a large amount of currency was not enough, standing alone, to supply probable cause to support a warrantless search.

Fitzgerald was pulled over while traveling by himself in his girlfriend's truck in the late afternoon. He had run a stop sign. Officer R.A. Thatcher discovered that Fitzgerald's driver's license was suspended. Fitzgerald told Thatcher that he had already called his girlfriend to come to the scene and pick up his truck, and he was completely cooperative while Thatcher placed him under arrest. Once Fitzgerald was cuffed and patted down, Thatcher found $2,673 in cash, which Thatcher described as "a mini cash register," when going through Fitzgerald's pockets. This discovery prompted the officer to ask Fitzgerald about his employment. Fitzgerald replied that he earned $10 an hour at a car detailing shop and that the money in his pockets was for rent and bills.

The officer then returned to the girlfriend's truck with the intention of searching it for drug evidence. He did so and found methamphetamine, digital scales, and several small plastic bags inside.

Accounts of events diverge somewhat at that point, which is when Fitzgerald's girlfriend arrived. According to a stipulation of the parties, she would have testified that Thatcher told her he had already found money on Fitzgerald and had already searched the truck and found drugs. He then sought her consent to search, and she asked if she could drive the truck away. The officer responded that she could not take the truck until a more thorough search had been performed. She then agreed to the search. Thatcher, on the other hand, testified that he *173 merely sought and received the girlfriend's consent to search after she arrived at the scene. The second search of the truck uncovered no additional evidence, but Fitzgerald made incriminating statements to a second police officer who had arrived at the scene.

The district judge rejected Fitzgerald's motion to suppress the drug evidence and statements, ruling that two exceptions to the Fourth Amendment's warrant requirement applied: (1) probable cause plus exigent circumstances, and (2) inevitable discovery based on the girlfriend's later voluntary consent.

Fitzgerald was convicted of possession of methamphetamine with intent to sell and possession without a tax stamp.

Our Court of Appeals affirmed the district judge's decision on both search warrant exceptions. State v. Fitzgerald, No. 95,812, 2007 WL 2080389 unpublished opinion filed July 20, 2007.

The panel considered probable cause established by Fitzgerald's peremptory call to his girlfriend, by the amount of money he was carrying and his arrangement of the bills in numerical order of denomination, and by his description of his not especially well-remunerated employment. The imminent arrival of Fitzgerald's girlfriend to pick up the truck qualified as an exigent circumstance.

On inevitable discovery, the panel recited the requirements of the exception and then moved immediately to an examination of whether the girlfriend's consent was voluntary. In the panel's view, the girlfriend had consented to a search of the truck because she knew it had already been searched and expected no more drugs to be found. Under these circumstances, the panel said, the officer's conduct was not coercive and thus the consent voluntary; in turn, the consent supported application of the inevitable discovery exception.

When reviewing a motion to suppress evidence, an appellate court determines whether the factual underpinnings of the district judge's decision are supported by substantial competent evidence. The ultimate legal conclusion to be drawn from those facts raises a question of law requiring application of a de novo standard. When, as is at least partially true here, the facts material to the district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Anderson, 281 Kan. 896, 900-01, 136 P.3d 406 (2006); State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004). The State bears the burden of proof when there is a motion to suppress; it must show the lawfulness of the challenged search. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).

The Fourth Amendment to the United States Constitution guarantees that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. State v. Schoonover, 281 Kan. 453, 493, 133 P.3d 48 (2006); State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993).

A warrantless search is per se unreasonable if it does not fall within a recognized exception to the search warrant requirement. State v. Ibarra, 282 Kan. 530, 536, 147 P.3d 842 (2006); State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003). The recognized exceptions to the warrant requirement for searches and seizures 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. Rupnick, 280 Kan. 720, 727, 125 P.3d 541 (2005).

A traffic stop is a seizure within the meaning of the Fourth Amendment, but Fitzgerald's Fourth Amendment argument does not focus on the legality of the stop. See Delaware *174 v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). He also does not challenge the validity of his arrest for driving on a suspended license in violation of K.S.A. 8-262(a)(1) or the propriety of Thatcher's search of his person incident to that arrest. Rather, Fitzgerald asserts that Thatcher's initial search of the truck did not fall within any of the warrant exceptions; specifically, it was not supported by probable cause.

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Bluebook (online)
192 P.3d 171, 286 Kan. 1124, 2008 Kan. LEXIS 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fitzgerald-kan-2008.