State v. Undorf

499 P.2d 1105, 210 Kan. 1, 1972 Kan. LEXIS 319

• Court: Supreme Court of Kansas
• Decided: July 19, 1972
• Docket: 46,091
• Status: Published

Opinions

The opinion of the court was delivered by

Foth, C.:

This is a criminal appeal in which the primary issue is whether the appellant’s rented automobile was subjected to an unreasonable search.

On the night of May 4, 1969, the Sedgwick county sheriff and one of his deputies, Syd Werbin, were on the prowl in the outskirts of Wichita at about 11:00 p. m. They were looking for a burglary suspect, and their quest took them to the vicinity of the “Waterhole Club” on 37th Street. As they approached in their patrol car they observed a 1969 Mustang pull out of the driveway with a spinning of wheels. It swerved over the center line before settling on a westward course at a high rate of speed; the officers fell in behind. At the intersection of Arkansas Avenue the Mustang disregarded the stop sign, and turned left without signaling; it thereafter crossed and recrossed the center line again. At this point the officers turned on their red light and siren and the Mustang pulled over to the curb. The patrol car pulled in behind it.

The officers approached the Mustang, one on each side. In the hand of the appellant’s female passenger they observed a glass which, on closer examination, appeared to contain liquor. Appellant was asked to step out from under the wheel and the sheriff concluded from his observation that he was intoxicated. An open bottle of liquor was lying on the console between the seats.

At this point the sheriff determined that appellant should be placed under arrest, and told Werbin to take care of the formalities. This he did, while standing at the front fender of the patrol car, by advising appellant that he was under arrest for driving under the influence and transporting an open bottle, and by reading him the “Miranda” warning. When asked whether he wished to talk to the officers appellant made no response.

It was determined that the Mustang should be impounded, and a wrecker was summoned for the purpose of towing it in; a license plate check revealed that the car belonged to a local car leasing firm. Appellant and his companion were placed in the back of the patrol car, and the sheriff returned to the Mustang to explore a suitcase he had observed on the back seat. As the sheriff put it:

“Well, I went back to look at the car because when I first had looked inside the car I noticed a suitcase laying on the back seat. I had decided then that I was going to tow the car in; and so I just went and opened the suitcase to see if there was anything in it I should take out.”

Asked on cross-examination why he opened the suitcase he replied:

“First to see if there was anything of value in the suitcase because I knew I was going to relinquish control of it to the wrecker company; and second, to see if there was any more whiskey in the car which could be used as evidence in the open bottle case.”

Opening the suitcase revealed sheets and pillowcases and, most significant to the sheriff, an assortment of liquor. The selection included three varieties of Scotch, two of tequila, some Mexican gin, three kinds of wine and several bottles of very good bourbon; some of the bottles were only partly full. The sheriff promptly summoned deputy Werbin to bring the appellant up to the Mustang. When he arrived, again in the sheriff’s words:

‘7 said to him is this your whiskey. He said yes. I said where did you get it. He said I bought it. I said well, where did you buy it. He said I bought it up the street. I said well, who did you buy it from. He said from a guy. I said well, who was he. He said I never seen him before. I said you just bought open whiskey, expensive whiskey, and never seen the guy before. He said that’s right. I said when did you buy it. He said tonight. So I said— I told him that’s ridiculous, I can’t believe that. He shrugged his shoulders and said that’s it.”

Suspicions now thoroughly aroused, the sheriff took the keys from the ignition and went to the back of the Mustang. There, once more in his words:

“A. Well, I opened the trunk. There were several things in the trunk. Suddenly Undorf says that’s not my suitcase. I looked at him and said which one isn’t yours. He pointed and said that little green one. He said I never seen that before. I said what do you mean you never seen that before. He said this is a rented car that’s not my suitcase. I don’t know how that got there. I said is the rest of the stuff yours. He stated yes. I said but that’s not yours. And he said yes. So I just opened the suitcase.

“Q. When you opened the suitcase, what did you observe then?

“A. It was full of narcotics and drugs.”

The sheriff thereupon told both appellant and his companion that they were under arrest, and took them and the suitcase full of drugs to the county jail. En route it occurred to him to confiscate the lady’s purse, which proved to contain a loaded .38 calibre pistol. Werbin was left with the Mustang to await the wrecker, which in due course brought it to the county jail where its contents were removed.

As result of this episode appellant was charged with a number of offenses which were presented to a jury in a consolidated trial of four separate cases. The liquor and bedding, as well as a coin collection, camera and a number of small household items found in the car proved to have been stolen from a Wichita residence in a burglary which had occurred a day or two before the arrest. Appellant was acquitted of the burglary but convicted of feloniously receiving these items knowing them to have been stolen.

The drugs had been stolen from a drugstore in Lincoln, Kansas, about ten days before. Appellant was convicted of feloniously receiving this stolen merchandise, of feloniously possessing opium derivatives, and of the unlawful possession of non-narcotic prescription drugs, a misdemeanor.

He was also convicted of four traffic offenses: open bottle, speeding, illegal left turn, and driving on the wrong side of the road. He was not charged with driving under the influence because his blood test proved too low.

The net result was a sentence of one to five years in the penitentiary for receiving the stolen whiskey, etc.; concurrent terms of one to five years and one to seven years for possession of the narcotic drugs and for receiving the merchandise stolen from the drug store, to be served consecutively to the first “receiving” sentence; one year in the county jail for possession of the non-narcotic drugs; and varying jail terms on the traffic counts. All the jail sentences were ordered to be served concurrently with the felony sentences. This appeal is from all convictions except for the traffic offenses.

Appellant made a pre-trial motion to supress all the evidence taken from the Mustang and objected to its introduction at trial. His motion and his objections were overruled. His position is that the evidence was the product of an unreasonable search of the Mustang, made without a warrant and not falling within any of the recognized exceptions to the warrant requirement of the Fourth Amendment.

As its first line of defense the state urges that the search of the suitcase was incident to the lawful arrest of appellant. He, in response, does not contend that the arrest was unlawful, but urges that the justification for an incidental search is not present when the arrest is for a “minor traffic offense.”

The classic justifications for searching as an incident to an arrest are to protect the arresting officer from concealed weapons, to prevent the escape of the suspect, and to prevent the loss or destruction of evidence. See, e. g., Preston v. United States, 376 U. S. 364, 11 L. Ed. 2d 777, 84 S. Ct. 881, and cases cited therein. This longstanding rule has recently been codified in this state in K. S. A. 1971 Supp. 22-2501.

Appellant’s argument that there are no “fruits, instrumentalities, or evidence” of a minor traffic offense clearly overlooks the open bottle charge of which he was convicted, as well as the driving while intoxicated charge for which he was arrested but not tried. It is true the officers had already seized one open bottle, but we hardly think this precluded their looking for more.

There was, moreover, a second stated reason for searching the suitcase, and that was to determine whether it contained articles of value requiring safekeeping. This was closely akin to the “station-house inventory” search which has lately received considerable attention in the federal circuit courts, although so far as we are able to ascertain has as yet to be treated by the high court itself.

Typical of this line of cases is United States v. Lipscomb, 435 F. 2d 795 (5th Cir. 1970). There the defendant and his girl friend had been arrested in a hotel room on probable cause to believe that they had fraudulently used stolen credit cards. They and their baggage were taken to jail, where the baggage was routinely searched. The search uncovered an automobile key which led to a Chrysler parked at the hotel parking lot; the car was likewise taken into custody and searched. This search led to the ascertainment of its identification number, the fact that it was stolen, and eventually to the defendant’s conviction for transporting it in interstate commerce. The Fifth Circuit upheld the search of both baggage and car. As to the baggage search, the court said (p. 800):

“. . . It can not be denied that to prevent escape, self-injury, or harm to others, the police have a legitimate interest in separating the accused from the property found in his possession. An inventory is then necessary both to preserve the property of the accused while he is in jail and to forestall the possibility that the accused may later claim that some item has not been returned to him.”

As to the later search of the car it said (p. 801):

. . Ordinarily no search warrant would be required for such a procedure, for the reason that it is both reasonable and desirable that personal effects contained within impounded automobiles be protected for the benefit of the owners.”

Similar searches of the baggage of arrested defendants made for safekeeping purposes were upheld in United States v. Robbins, 424 (6th Cir. 1970) and in United States v. Blackburn, 389 F. 2d 93 (6th Cir. 1968).

In the case at bar the suitcase was not being searched as a part of a routine inventory, but it was being searched for the similar purpose of determining the need for safekeeping precautions. Arrangements had already been made for a private firm to take the car into custody, and the sheriff was justified, in our view, in determining what was in the suitcase. Of course, he could have removed the suitcase, taken it to the county jail with him, and inventoried it there. Had he done so he would clearly have fallen within the “stationhouse inventory” doctrine — although the argument then would no doubt have been that the search was not contemporaneous with the arrest. We see no distinction of substance between an on-the-scene preliminary search and a thorough inventory made at the j'ailhouse. Cf., Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; United States v. Robbins, supra.

Thus, either as a search incidental to a lawful arrest or as a reasonable safekeeping precaution we hold that the sheriff did not act unlawfully in opening the suitcase.

Once it was open and the array of liquor exposed the matter took on a different complexion. The sheriff was naturally curious to know where such an assortment — some boxed, some partially consumed — might have come from. Appellant’s account of having just bought it that Sunday evening from a stranger was inherently incredible. We believe that after hearing this story the sheriff had probable cause to believe it was stolen. The facts and circumstances known to him at that point were sufficient to warrant a prudent man in believing that a felony had been or was being committed. Once his suspicions were elevated to that level he was justified in searching the entire car, including the trunk. See, State v. Frizzell, 207 Kan. 393, 485 P. 2d 160, Syl. ¶¶ 3 and 4, State v. Blood, 190 Kan. 812, 378 P. 2d 548.

Appellant points out that when the sheriff searched the trunk he had no information that any particular theft had occurred from any particular person. But if the car contained stolen property an offense was being committed in the presence of the officers and they were not required to have in their possession all the evidence necessary to convict.

“On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.” (Carroll v. United States, 267 U. S. 132, 149, 69 L. Ed. 543, 45 S. Ct. 280, 39 A. L. R. 790.)

And cf., Brinegar v. United States, 338 U. S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302; State v. Blood, supra.

Confusion has arisen between the right to search incident to an arrest and the right to search an automobile on probable cause. Preston v. United States, supra, perhaps contributed to this confusion by its holding that a search of the defendant’s automobile made at the police station some time after the arrest was invalid because it was “simply not incident to the arrest.” (376 U. S. 364, at 367.) However, in Chambers v. Maroney, supra, the court made clear that the same knowledge providing probable cause for an arrest may also furnish probable cause for a search. Referring to Carroll v. United States, supra, the Court said (399 U. S. at 49):

“The Court also noted that the search of an auto on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest:

“ ‘The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.’ 267 U. S., at 158-159.”

The upshot is that if there is probable cause to search a car such search need not be “incidental to” or “contemporaneous with” an arrest, but may be made wholly independently of any arrest at all. Compare Wood v. Crouse, 417 F. 2d 394 (10th Cir. 1969) with Wood v. Crouse, 436 F. 2d 1077 (10th Cir. 1971), the same case on remand after Chambers. Thus if, as we hold, appellant’s unsatisfactory explanation of his possession of the liquor in the suitcase gave rise to probable cause to believe it was stolen, the subsequent search of the trunk was not unreasonable.

We have examined the other points raised by the appellant and find no reversible error.

The judgment is affirmed.

APPROVED BY THE COURT.