State v. Press

685 P.2d 887, 9 Kan. App. 2d 589, 1984 Kan. App. LEXIS 342

• Court: Court of Appeals of Kansas
• Decided: July 12, 1984
• Docket: 55,621
• Status: Published

Opinions

Swinehart, J.:

This is an interlocutory appeal by the State from the trial court’s pretrial suppression of evidence obtained in an illegal search of defendant’s vehicle after his arrest for violation of K.S.A. 1983 Supp. 8-1567 — DUI misdemeanor.

Defendant Randall J. Press was arrested by highway patrol trooper Daniel Alltop at the intersection of Cody and Vine Streets in Hays, Kansas, at about 10:50 p.m. on March 8, 1983. Trooper Alltop observed the vehicle defendant was driving on Vine Street, a four-lane road with a center turn lane, weaving into the center turn lane several times and the outside lane once. No turn signals were given prior to these lane changes. Trooper Alltop also observed defendant’s vehicle stop at the intersection of 22nd and Vine Streets for a stoplight which was green for defendant’s lane of travel.

Trooper Alltop stopped defendant’s vehicle. Defendant was asked to and did perform field sobriety tests, including the heel-to-toe test, the finger-to-nose test, and a test consisting of leaning back with the head tilted back to test balance. These tests revealed that defendant was unsure, swaying, and almost lost his balance, while performing the heel-to-toe walking test. Defendant touched the bridge of his nose rather than the tip as requested by Trooper Alltop on the hand-to-nose test. Further, when defendant was asked to lean back and tilt his head back with his eyes closed, there was a sway to his balance. Trooper Alltop also observed a mild odor of alcoholic beverage on defendant’s breath.

Defendant was placed under arrest for driving while under the influence of alcohol, read his Miranda rights, taken into custody, handcuffed, and placed in the front seat of the patrol car with the seat belt fastened.

Trooper Alltop then asked defendant whether he wanted to let an officer drive his car to the Ellis County Law Enforcement Center in Hays, or leave the car on Cody Street. The defendant told Trooper Alltop he wanted his car to be locked and left at the site. The dome light of defendant’s car was on, and defendant, sitting in the patrol car, had a plain view of the trooper’s actions through the rear window of defendant’s car. Trooper Alltop went to defendant’s car, sat in the driver’s seat, and removed the keys from the ignition. This was the only set of keys to defendant’s car known to Trooper Alltop.

Trooper Alltop conducted a search of defendant’s vehicle, starting with the passenger compartment. Two Hays policemen had arrived at the scene and were present when the search took place. Trooper Alltop, while searching for a bottle, found a white tray with a green leafy substance under the driver’s seat, and two hemostats underneath the driver’s side floor mat. He next found two clear plastic bags containing a green leafy substance in the space between the seat and the driver’s side door. Trooper Alltop moved to the back seat and found a green wine bottle that was “bone dry.” He then found an amber colored glass bottle in the back seat area containing seeds and a green stem which he believed to be marijuana.

Trooper Alltop next searched the trunk where he found two more bags and placed them in evidence containers. He then searched the glove compartment and found a white pipe with a screen containing what appeared to be marijuana resin, two plastic bags containing green leafy material, and a brown opaque wooden box containing green leafy material. Trooper Alltop told defendant he was under arrest for possession of marijuana and took him to the Ellis County Law Enforcement Center. Defendant was delivered to the custody of the Ellis County sheriff, whereupon he posted bond and was released.

Defendant was charged with possession of marijuana, possession of paraphernalia, and driving while under the influence of alcohol. Defendant’s pretrial motion to suppress the evidence obtained in the search of his vehicle was sustained by Judge Steven P. Flood, who found the following facts: (1) Trooper Alltop agreed to lock defendant’s car just before driving to the Ellis County Law Enforcement Center at defendant’s request. (2) Trooper Alltop conducted a general search of the entire automobile. (3) Trooper Alltop saw nothing in plain view. (4) There was no possibility the defendant could have destroyed evidence once handcuffed and seatbelted in the patrol car. (5) The defendant left his lane of traffic on four occasions, stopped at a green light, had a slight odor of alcohol on his breath, and performed the field sobriety tests less than perfectly. Judge Flood made the following conclusions of law: (1) The search was not incident to the arrest. (2) The only justification for the search was the search incident to arrest doctrine. (3) Trooper Alltop had no probable cause to suspect defendant’s automobile contained any evidence, any contraband, or any item that offended the law. (4) Trooper Alltop had probable cause to arrest defendant for driving while under the influence of alcohol.

The State has timely appealed from the court’s pretrial suppression order.

The State’s only argument on appeal is that the court erred in finding that the warrantless search of defendant’s vehicle was not incident to a lawful arrest. Both parties agree with the trial court’s finding that under the facts of this case the only possible justification' for the search is the search incident to arrest doctrine. This doctrine is embodied in K.S.A. 22-2501, which states:

“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 the crime.”

Determining whether the search was incident to an arrest so that a warrant is not required involves two considerations: whether the arrest is valid, and whether the search is properly limited in scope to that which is permissible on arrest. 68 Am. Jur. 2d, Searches and Seizures § 37, p. 692; New York v. Belton, 453 U.S. 454, 457, 69 L.Ed.2d 768, 101 S.Ct. 2860 (1981); Terry v. Ohio, 392 U.S. 1, 19, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968).

Defendant was arrested for DUI, a misdemeanor, in violation of K.S.A. 1983 Supp. 8-1567. K.S.A. 22-2401 provides that a law enforcement officer may arrest a person when:

“(c) He has probable cause to believe that the person is committing or has committed

“(2) A misdemeanor, and the law enforcement officer has probable cause to believe that:

“(i) Such person will not be apprehended or evidence of the crime will be irretrievably lost unless such person is immediately arrested; or

“(it) Such person may cause injury to himself or others or damage to property unless immediately arrested; or

“(d) Any crime has been or is being committed by such person in his view.”

This statute embodies the general rule that the validity of a warrantless arrest depends upon whether, at the moment the arrest was made, the officer had probable cause to make it. See Beck v. Ohio, 379 U.S. 89, 13 L.Ed.2d 142, 85 S.Ct. 223 (1964); State v. Morgan, 231 Kan. 472, 475, 646 P.2d 1064 (1982).

“Probable cause for arrest exists if facts and circumstances within an arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed.” State v. Costello, 231 Kan. 337, Syl. ¶ 1, 644 P.2d 447 (1982).

In the present case, ample evidence supports a finding of probable cause for defendant’s arrest for DUI. Trooper Alltop had personally observed defendant’s vehicle weave from lane to lane without signalling and stop at a green light, had smelled a slight odor of alcohol on defendant’s breath, and had witnessed defendant’s “imperfect” performance of the field sobriety tests. These facts within Trooper Alltop’s knowledge are sufficient in themselves to lead a person of reasonable caution to believe that the offense of DUI was being committed. See State v. Morgan, 231 Kan. at 475. The trial court did not err in finding defendant’s arrest lawful.

Determining whether the search of defendant’s vehicle, conducted by Trooper Alltop, was properly limited in scope to that which is permissible on arrest is more difficult. This question has often been considered by the Supreme Court of the United States. In Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034, reh. denied 396 U.S. 869 (1969), the United States Supreme Court determined that a lawful custodial arrest creates a situation justifying the contemporaneous warrantless search of the arrestee and of the area immediately surrounding the arrestee. This exception to the general requirement of a warrant is justified by the need to remove any weapons the arrestee might attempt to use (i.e., the need to protect the officer) and by the need to prevent destruction or concealment of evidence. Chimel, 395 U.S. at 763.

New York v. Belton, 453 U.S. 454, applied the Chimel principles to the warrantless search of an automobile. In that case, Mr. Belton was stopped for speeding. The policeman discovered that none of the four occupants owned the car. The officer smelled burned marijuana and saw on the car’s floor an envelope he suspected of containing marijuana. He then directed Mr. Belton and his three passengers to get out of the car and arrested them for possession of marijuana. The policeman split the arrestees up into four separate areas so that they would not be in physical touching area of one another while standing on the street by the side of the car. He searched the arrestees, then searched the passenger compartment of the car. Cocaine was found inside the pocket of a jacket found in the car. Mr. Belton, indicted for criminal possession of a contraband substance, argued that the search violated the Fourth and Fourteenth Amendments.

The United States Supreme Court began its analysis by recognizing the Chimel principle that the scope of a search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. 453 U.S. at 457. The court recognized that courts had found no workable definition of “the area within the immediate control of the arrestee” when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Belton, 453 U.S. at 460. Belton established the “bright line” rule that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile. Belton, 453 U.S. 454. The court footnoted its holding with this explanation:

“Our holding today does no more than determine the meaning of Chimel’s principles in this particular and problematic context. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” New York v. Belton, 453 U.S. at 460, n. 3.

Cases subsequent to Belton have demonstrated that the principles set forth in Belton fell short of the stated objective of providing police officers with a more workable standard for determining the permissible scope of searches incident to arrest. 453 U.S. at 458-59. Some courts have interpreted Belton to mean that instead of evaluating each custodial arrest of the occupant of a vehicle to determine whether an article was within his immediate control, a court need only find that an article was within the passenger compartment, and it is deemed to have been within the arrestee’s immediate control. State v. Cooper, 304 N.C. 701, 705, 286 S.E.2d 102 (1982). See United States v. Rollins, 699 F.2d 530 (11th Cir. 1983); United States v. Marquez, 687 F.2d 328 (10th Cir. 1982). The facts in State v. Cooper are similar to those presently before this court in that the defendant was arrested for DUI, and was placed in the patrol car while his car was searched. The search, which reveáled a paper bag containing marijuana, was upheld as incident to defendant’s arrest. Other courts have read Belton more narrowly, and have found it not to apply to searches made while the defendant was arrested, handcuffed, and seated in the back seat of an agent’s car without possibility of access to his own vehicle. United States v. Farinacci-Garcia, 551 F. Supp. 465 (D. Puerto Rico 1982). See People v. Long, 413 Mich. 461, 320 N.W.2d 866 (1982). Under this narrower reading of Belton, such searches are made neither at the time nor place of arrest, and must fall within some other exception to the warrant requirement to be found constitutional.

In the present case, the trial court’s suppression of evidence was consistent with the narrower view of Belton. However, the Kansas Supreme Court has accepted the broader view in which articles found in a vehicle’s passenger compartment are deemed to have been within the recent occupant’s (arrestee’s) control, justifying a warrantless search.

In the pre-Belton case of State v. Sanders, 5 Kan. App. 2d 189, 614 P.2d 998 (1980), this court examined the proper scope of a search incident to arrest and stated:

“The justification for the search without a warrant is the officer’s immediate need to protect himself or preserve evidence. Here, the appellant, as noted above, had been removed from the car, as had his passenger, before the gun was found. Furthermore, the officers had determined that the car was to be impounded and had so informed appellant; this was also before the gun was found. We conclude the search was not sufficiently limited in scope as it was outside the area within the arrestee’s immediate control.” 5 Kan. App. 2d at 196-97.

Because the search of the car was not justified by any of the five basic exceptions to the requirement for a search warrant, we held the search to be in violation of the Fourth Amendment of the United States Constitution and Section 15 of the Kansas Bill of Rights.

Soon after Belton was decided, this court was confronted with another case questioning the proper scope of a search incident to arrest. In State v. Croft, 6 Kan. App. 2d 821, 635 P.2d 972 (filed November 13, 1981), defendant was arrested for driving without a license. He was outside but near the car when a police officer searched it and found a radio scanner. In upholding the warrantless search, we stated:

“One of these exceptions is for the search incident to a lawful arrest. Appellant concedes he was arrested for having no driver’s license in his possession. The critical question, he feels, is whether the search was sufficiently limited in scope to be justified. That question was recently answered by the U.S. Supreme Court in New York v. Belton, 453 U.S. 454, 460, 69 L.Ed.2d 768, 775, 101 S.Ct. 2860 (1981). There it was held ‘that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.’

“The appellant was lawfully arrested. The scanner was found in the passenger compartment. Under the Belton rule the search was proper.” p. 823.

In February of 1982, the Kansas Supreme Court decided State v. White, 230 Kan. 679, 640 P.2d 1231 (1982). In White, defendant was removed from his vehicle and arrested. Search of the vehicle revealed a jacket and cap which had apparently been worn in a recent robbery lying on the front seat. The court answered defendant’s contention that the articles of clothing should have been suppressed as fruits of an illegal search by these words:

“The U.S. Supreme Court has recently addressed the very question presented herein. In New York v. Belton, 453 U.S. 454, 460, 69 L.Ed.2d 768, 101 S.Ct. 2860 (1981), it was held ‘that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.’

“This is precisely what occurred herein and the trial court did not err in refusing to suppress the clothing taken from the automobile. We note State v. Croft, 6 Kan. App. 2d 821, 635 P.2d 972 (1981), wherein the Court of Appeals applied the Belton decision and reached the same result.” 230 Kan. at 680. “Having determined that the initial stop or seizure was not constitutionally invalid, the officer had sufficient reason and probable cause to place defendant under arrest when it appeared he was under the influence of alcohol. The arrest of the defendant being lawful, the search of the passenger compartment of his automobile was also lawful. State v. White, 230 Kan. 679, 640 P.2d 1231 (1982).” 234 Kan. at 543.

The most recent case in which the Kansas Supreme Court has examined the scope of a search incident to arrest is State v. Deskins, 234 Kan. 529, 673 P.2d 1174, filed December 2, 1983, a case quite similar to that presently before this court. Here, the trial court’s decision, filed in April of 1983, would not have had the benefit of the Deskins case.

In Deskins, police officers stopped vehicles at a roadblock ostensibly set up for the purpose of checking drivers’ licenses. Deskins showed his license to the officer, who smelled a strong odor of alcohol on Deskins’ breath. The officer then asked Deskins to take a sobriety and coordination test. Deskins’ performance of these tests was less than satisfactory to the officer, who arrested Deskins for DUI, read him his Miranda rights, and placed him in a squad car. “While [Deskins] remained in the police car, one of the officers searched [his] automobile and found in the glove-box a plastic bag containing marijuana.” 234 Kan. at 531. Deskins was charged with DUI and possession of marijuana. The trial court suppressed all evidence found in the search.

The Deskins opinion extensively examined the constitutionality of the initial stop of Deskins’ vehicle. The court upheld the constitutionality of the stop since the driver’s license/DUI roadblock stopped all vehicles in the traffic lane and was pursuant to sufficient standards, guidelines, and protections of an individual’s right to privacy, and was not a random stopping of only certain vehicles based on an officer’s unbridled discretion. The court then addressed the scope of the search by stating:

As in Deskins, the defendant in the present case was arrested for DUI, was read his Miranda rights, and was placed in a patrol car where he remained while his vehicle was being searched. Deskins clearly controls the present case. Accordingly, the search of the passenger compartment of defendant’s automobile was lawful.

Defendant argues that incriminating evidence was found not only in the vehicle’s passenger compartment, but also in the vehicle’s trunk. Defendant’s brief notes that the trunk was searched after the trooper had found marijuana in the vehicle’s passenger compartment. Even this search of the trunk must be upheld under the rule and principles of United States v. Ross, 456 U.S. 798, 72 L.Ed.2d 572, 102 S.Ct. 2157 (1982), as appliéd in State v. Harder, 8 Kan. App. 2d 98, 650 P.2d 724 (1982).

In Harder, a police officer had stopped Mr. Harder’s pickup truck to see whether Harder was driving with a suspended driver’s license. The officer shined his flashlight into the passenger compartment where he observed a baggie of marijuana. The officer then arrested Harder and searched the truck. In the rear of the truck the officer found another baggie of marijuana in an unlocked toolbox. The initial shining of the flashlight into the passenger compartment was justified by the “plain view” doctrine. 8 Kan. App. 2d at 100-01. In response to Harder’s contention that the warrantless search of the unlocked toolbox in the truck bed constituted an illegal search, we said:'

“In State v. Jaso, 231 Kan. 614, Syl. ¶ 5, 648 P.2d 1 (1982), the court held:

“ ‘When police officers have made a lawful stop of a vehicle and have probable cause to believe that contraband is in the vehicle, the officers may search every area of the vehicle and its contents which might reasonably contain the contraband without the necessity of first obtaining a warrant.’

“In United States v. Ross, 456 U.S. 798, 72 L.Ed.2d 572, 102 S.Ct. 2157 (1982), the court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant.

“Under the facts of this case, it is clear that the officers had probable cause to believe, after already finding one bag of marijuana in the truck, that the truck contained other contraband. They therefore were entitled to search the unlocked toolbox.” State v. Harder, 8 Kan. App. 2d at 101.

In the present case, Trooper Alltop lawfully stopped defendant’s vehicle and lawfully arrested him for DUI. Under the interpretation of Belton evidenced in Deskins, Trooper Alltop’s search of the passenger compartment of defendant’s vehicle was also lawful. Trooper Alltop’s search of that passenger compartment revealed a “white tray containing green leafy substance” under the driver’s seat, two hemostats under the driver’s floor-mat, two clear plastic bags containing a green leafy substance between the driver’s seat and the door, and an amber colored bottle containing seeds and a green stem in the back seat. Trooper Alltop believed those green leafy substances to be marijuana. Under these facts, it is clear that Trooper Alltop had probable cause to believe that defendant’s vehicle contained other contraband. He was therefore entitled to search the trunk of defendant’s car.

The trial court erred in ruling that the evidence suppressed had been obtained in an illegal search of defendant’s vehicle.

Reversed and remanded.