Opinion
No. 106,413.
2012-09-28
STATE of Kansas, Appellee, v. Ryan Christopher CHEATHAM, Appellant.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. John Bryant, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Meryl Carver–Allmond, of Kansas Appellate Defender Office, for appellant. John Bryant, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM:
Defendant Ryan Cheatham appeals his felony drug conviction on the grounds the Leavenworth County District Court erred in denying his motion to suppress crack cocaine a law enforcement officer seized from a pocket in his pants during a pat-down search. Based on the factual findings of the district court and controlling Kansas Supreme Court authority on the “plain feel” doctrine, we find denial of the motion to be proper and, therefore, affirm the conviction.
Leavenworth Police Officer Tesh St. John responded to a disturbance call in a residential area south of that city's downtown on August 29, 2009, when he saw Cheatham walking away from a house and several people in the immediate vicinity. One of them—Cheatham's grandmother—caught St. John's attention because she was shouting and gesturing emphatically. St. John parked his patrol car, and as he approached, he heard a man he identified as Cheatham's father say something about a shooting while pointing at Cheatham.
St. John had previous professional contacts with Cheatham as a suspected criminal. St. John stopped Cheatham and conducted a pat-down search of him for weapons. In patting down the front left pocket of Cheatham's pants, St. John felt several hard, round objects. Based on his law enforcement training and experience, St. John believed the objects to be crack cocaine or a simulated controlled substance intended to mimic crack. St. John then manipulated the pocket to assure himself there were no sharp objects in it. He then reached into the pocket and removed seven similarly sized spheres that looked to be crack cocaine and one somewhat larger sphere that appeared much the same as the others. The rocks were in “corner-tied” plastic baggies—a common packaging for illegal drugs.
The smaller rocks were chemically tested and found to contain cocaine. The larger rock tested negative for cocaine and other illegal substances.
The State charged Cheatham with possession of cocaine with intent to distribute in violation of K.S.A.2009 Supp. 21–36a05(a)(l). Cheatham filed a motion to suppress the drugs on the grounds St. John exceeded the scope of a proper pat-down search and, thereby, violated the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. The district court held an evidentiary hearing on the motion to suppress during which both St. John and Cheatham testified.
St. John testified that he was concerned that Cheatham might have a firearm or other weapon based on the statement his father made. So St. John conducted a pat-down search for the protection of himself and others. St. John told the district court he used his open hands to pat Cheatham's clothing for objects that might be weapons. While doing so, St. John patted the crack cocaine and immediately recognized the feel to be consistent with illegal drugs. He acknowledged that after patting the pocket and making that determination, he more thoroughly felt the pocket with his fingers to assess if Cheatham had also put a sharp or otherwise dangerous object in the pocket.
At the hearing, Cheatham testified that St. John did not conduct the search with open hands but, rather, meticulously manipulated the objects in the pocket with his fingers before removing the drugs. Cheatham described St. John's actions in feeling the contents of the pocket to be “as though [he were] counting beads on a rosary.” The district court was unpersuaded by Cheatham's arresting analogy.
In a short written ruling, the district court recounted St. John's testimony that he patted down Cheatham with open hands in a search for weapons and, in doing so, recognized the objects in the pocket to be contraband in the form of illegal drugs. The district court also noted that St. John did not manipulate the pocket further until after concluding it contained contraband and then only to detect any sharp or dangerous objects. The district court did not mention the substance of Cheatham's testimony in the written ruling. We construe the district court's editorial selectivity to be a credibility finding favoring St. John over Cheatham, although an explicit statement to that effect would have been illuminating. Based on that finding and State v. Wonders, 263 Kan. 582, 952 P .2d 1351 (1998), the controlling Kansas case, the district court denied the motion to suppress.
Cheatham then agreed to a trial on stipulated facts. The district court found him guilty and later sentenced him to a prison term of 41 months. Cheatham has timely appealed and challenges the district court's ruling on the motion to suppress.
In reviewing a district judge's ruling on a motion to suppress, an appellate court applies a bifurcated standard. The appellate court accepts the factual findings of the district judge if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); see State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008) (allocation of burden; quantum of evidence); Thompson, 284 Kan. at 772 (allocation of burden).
By its express language, the Fourth Amendment guarantees “[t]he right of the people to be secure in their persons [and] houses ... against unreasonable searches and seizures.” To further that right, the Fourth Amendment also requires warrants based on probable cause be presented under oath to a judicial officer and any warrant describe with particularity the places to be searched and the person or objects to be seized. The warrant requirement, thus, interposes an independent reviewing authority—a judge—to assess the sufficiency of the grounds government agents advance for interfering with citizens or their property. Section 15 of the Kansas Constitution Bill of Rights contains legally comparable language. The Kansas Supreme Court has consistently interpreted the Kansas constitutional protections to be coterminous with the Fourth Amendment. State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010), cert. denied131 S.Ct. 2114 (2011); Wonders, 263 Kan. at 591–92.
The courts have recognized exceptions to the warrant requirements in the Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights, allowing government agents to conduct limited searches in defined circumstances without the necessity of advance judicial approval. One such exception is the plain feel doctrine recognized in Minnesota v. Dickerson, 508 U.S. 366, 375–76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), and then adopted in Wonders, 263 Kan. 582, Syl. ¶ 7. The exception evolved from Terry stops allowing government agents to briefly detain persons on the street based on “specific and articulable facts” raising a reasonable suspicion of illegal activity, Terry v. Ohio, 392 U.S. 1, 20–23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and has been likened to the plain view exception to the warrant requirement, Dickerson, 508 U.S. at 375–76. As part of a Terry stop, a law enforcement officer may question the individual and make a pat-down search for weapons. Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (investigatory Terry stop may entail frisk or pat-down for weapons if officer reasonably suspects individual may be armed); Dickerson, 508 U.S. at 372–73;Hayes v. Florida, 470 U.S. 811, 816–17, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) (officer “may question [person] briefly” during Terry stop).
Cheatham wisely does not challenge the basis for St. John's stop of him or the decision to conduct a pat-down search for weapons. The circumstances confronting St. John when he arrived at the house, especially given the statement from Cheatham's father, well supported the stop and pat-down search of Cheatham.
Cheatham, rather, focuses on the constitutional propriety of the pat-down under the plain feel exception. To come within the exception, a law enforcement officer must confine the search to use of his or her hands applied in a manner aimed at determining if the individual has any weapons. And based on that sensory impression, the officer must then identify an object to be “ ‘immediately apparent’ “ as contraband. Dickerson, 508 U.S. at 375–76;Wonders, 263 at 590. The officer may not rely on “ ‘squeezing, sliding, and otherwise manipulating the contents' “ of the suspect's garments to recognize an item to be contraband. Dickerson, 508 U.S. at 378;Wonders, 263 Kan. at 590. To do so exceeds the exception and violates the Fourth Amendment. The “immediately apparent” component of the exception requires only that the government agent have probable cause to believe the object is contraband based on the limited contact permitted in a Terry pat-down—not that the agent glean precise knowledge of the exact nature of the contraband. See Dickerson, 508 U.S. at 376–78;Wonders, 263 Kan. 582, Syl. ¶ 9.
Were Cheatham's testimony the only evidence offered at the suppression hearing, he might well have prevailed. But St. John's account was markedly different and depicted a search and seizure that complied with the plain feel exception. The district court accepted St. John's version of the critical events. As an appellate court reviewing a transcript rather than live witnesses, we are in no position to discount that credibility determination. We are, therefore, obligated to decide the appeal by applying the settled legal rules to the facts the district court found. Within those bounds, we find no error in the district court's decision to deny the motion to suppress.
Affirmed.