Opinion
No. 108,616.
2013-08-2
STATE of Kansas, Appellee, v. William Harlan BENNETT, Jr., Appellant.
Appeal from Harvey District Court; Richard B. Walker, Judge. Gary Luke Foiles, of Lyndon, for appellant. Ronald D. Innes, assistant county attorney, and Derek Schmidt, attorney general for appellee.
Appeal from Harvey District Court; Richard B. Walker, Judge.
Gary Luke Foiles, of Lyndon, for appellant. Ronald D. Innes, assistant county attorney, and Derek Schmidt, attorney general for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
William Bennett, Jr., appeals from his convictions for possession of cocaine, possession of cocaine without tax stamps, driving while suspended, driving with expired registration and speeding. Bennett alleges that the impoundment of his vehicle and the resulting inventory search was unreasonable and that the evidence discovered should be suppressed. He also argues that the State did not establish either venue or possession.
Finding no error, we affirm.
Factual Background
On January 30, 2011, Corporal Jason Thompson, a police officer for the City of Newton, stopped Bennett for speeding on I–135. Thompson determined from information provided on his Mobil Data Terminal (MDT) that Bennett's Washington state driver's license was suspended and the Washington state registration for his vehicle had expired on September 17, 2010, more than four months prior to the stop.
Thompson arrested Bennett for driving with a suspended license. After securing Bennett in the patrol car, Thompson seized the license plates from Bennett's vehicle and called Harvey County Communications to send a wrecker to his location. Thompson acted on the basis of Newton Police Department policy and did not discuss towing the vehicle with Bennett. Thompson also conducted an inventory search of the vehicle before it was towed. Upon opening the center console, he observed cocaine “right on top of the console on the inside of the lid [ sic ].” He did not have to move any items in the console to see the cocaine.
Bennett, alleging that the impoundment of his car was unreasonable, moved for suppression of the evidence seized in the inventory search. The State argued the impoundment and inventory search were reasonable under the circumstances. The district court denied the motion to suppress.
The case was then tried to the court on a stipulation, which included Officer Thompson's police report, a forensic report identifying the cocaine and a statement of facts wherein Bennett preserved his objection to the seized evidence. The court found Bennett guilty on all counts and this appeal was timely filed.
The Impoundment and Inventory Search
Bennett argues on appeal, as he did before the trial court, that no statute supported the impoundment of his vehicle and that it was otherwise unreasonable; thus, the ensuing search was improper because the prior impoundment was in proper.
This court reviews the district court's findings of fact for substantial competent evidence and it reviews the conclusions of law drawn from those facts de novo. This court does not reweigh the evidence or assess witness credibility. State v. Robinson, 293 Kan. 1002, 1017, 270 P 3d 1193 (2012).
“When a defendant claims that a vehicle in his or her possession was unlawfully impounded by the police, the prosecution has the burden of proving that the impoundment was reasonable under the totality of circumstances.” State v. Shelton, 278 Kan. 287, Syl. ¶ 2, 93 P.3d 1200 (2004). The Newton police could reasonably impound Bennett's vehicle “if authorized by statute” or if facts otherwise provided “reasonable grounds for impoundment.” State v. Canaan, 265 Kan. 835, Syl. ¶ 5, 964 P.2d 681 (1998); see State v. Branstetter, 40 Kan.App.2d 1167, 199 P.3d 1272,rev. denied 289 Kan. 1281 (2009).
The State argues, as it did in the trial court, that the impoundment, and by extension the inventory search, was reasonable under the circumstances. The State emphasizes the law enforcement function underlying the Newton Police Department policy and Officer Thompson's actions in accordance with that policy.
The reasoning set forth in United States v. Hannum, 55 Fed.Appx. 872 (10th Cir.2003) , an unpublished but persuasive federal decision is instructive. The federal courts applied Kansas law in upholding the impoundment and inventory search of a vehicle based on the lack of proper registration and proof of insurance. The United States District Court for the District of Kansas had implicitly rejected an argument that impoundment was improper since it was not authorized by any specific Kansas statute. Instead, it found that “the impoundment was reasonable under the circumstances” due to lack of proper registration. 55 Fed.Appx. at 873–74.
On appeal, Hannum argued that the officers did not have reasonable grounds to impound because they did not ask him how he would like to dispose of the improperly registered vehicle; similarly, here Officer Thompson readily admitted that, pursuant to departmental policy, he did not discuss towing of the vehicle with Bennett. Hannum also contended that his vehicle was lawfully parked in a convenience store lot and was not obstructing traffic; similarly, here Bennett also suggests that his car was properly and safely parked along the highway, although in his stipulated police report Officer Thompson cited the parking situation as a reason for impoundment, casting some doubt on this position. The court in Hannum noted that leaving the vehicle in the parking lot could subject it to vandalism. Hannum argued, as does Bennett herein, that the registration problems could have been rectified without impoundment and the car driven away.
In affirming the district court, the 10th Circuit rejected these arguments and emphasized important concerns underlying Kansas statutes referring to proper registration of vehicles. 55 Fed.Appx. at 875. The Circuit Court noted that “because the car driven by ... Hannum ... was not properly registered, it could not be lawfully driven on Kansas roads.” 55 Fed.Appx. at 875–86.
The Circuit Court identified a list of reasonable grounds for impoundment derived from various Kansas cases, noting that the list did not include enforcement of registration statutes. 55 Fed.Appx. at 875. Referring to “underlying Kansas statutes requiring the proper registration,” the Court opined that Hannum “reads the ‘reasonable grounds for impoundment’ standard much too narrowly” and held that the list was not exhaustive. “[T]he fact that lack of proper registration is not specifically listed as grounds for impoundment ... does not render the ... decision to impound improper. Because the [vehicle] driven by ... Hannum was not properly registered, the [officers] had reasonable grounds to impound it.” 55 Fed.Appx. at 875–76. The court went on to take note that “Hannum cites no authority in support of his contention that the [police] were required to afford [him] the opportunity to properly register the car before impounding it. To impose such a restriction on law enforcement officers who discover an unregistered vehicle would substantially undermine the registration laws.” 55 Fed.Appx. at 876. Likewise, Bennett cites no such authority herein.
Here, Officer Thompson was faced with a vehicle with expired registration, operated by a suspended out-of-state driver. The vehicle could not be legally operated on Kansas roads; yet it had nevertheless been operated illegally for several months, indicating an indifferent or hardened disposition toward compliance with the law. In the legitimate exercise of his law enforcement functions, it was reasonable under the circumstances for Officer Thompson to take custody of the vehicle to ensure compliance with Kansas registration statutes. See K.S.A. 8–127(a) (requiring registration “before any such vehicle is operated in this state.”); K.S.A. 8–142 (making it unlawful “[t]o operate, or for the owner ... knowingly to permit the operation upon a highway of any vehicle ... which is not registered.”); State v. Jones, 27 Kan.App.2d 476, 484, 5 P.3d 1012 (2000) (“A police officer's job is to enforce the law”).
While the trial court herein did cite two statutes in support of its decision, the court essentially adopted a “reasonable grounds” basis, noting that because Bennett's vehicle “could not be legally driven it had to be moved, and I think that alone justifies the towing of the vehicle, the impoundment of the vehicle since there was no way with its current registration it could be legally moved other than being impounded and towed”.
Having thus approved the impoundment, the trial court then acknowledged the propriety and purpose of the subsequent inventory search and accounting. “[T]he testimony was it's the policy of law enforcement to inventory the vehicle both for the protection of law enforcement, so they're not accused of stealing items, and follows the protection of the defendant [ sic ] so that he knows exactly what's in there and has the accounting of everything, so that tow people aren't potentially—tow lots aren't necessarily the best place in the world to have you personal belongings stored. So it was for the protection of everybody.”
Under the circumstances set forth herein, the district court did not err in denying the motion to suppress.
Venue
Bennett argues the State failed to prove venue because the “facts relied upon by the district court do not say anything at all about where the offense took place. They say whom the officer called for a wrecker and to where the officer transported [Bennett.]” Venue is generally a question of fact for the jury, reviewed under the sufficiency of evidence standard applied in criminal cases: “[W]hether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact finder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]”. State v. Stevens, 285 Kan. 307, 325, 172 P.3d 570 (2007). Where, as here, the case is tried to the court on stipulated facts, the appellate court has de novo review. State v. McCammon, 45 Kan.App.2d 482, 488, 250 P.3d 838,rev. denied 292 Kan. 968 (2011); State v. Downey, 27 Kan.App.2d 350, 362, 2 P.3d 191,rev. denied 269 Kan. 936 (2000). Venue is a necessary jurisdictional fact which must be proved along with the elements of the actual crime. State v. Rivera, 42 Kan.App.2d 1005, 1009–10, 219 P.3d 1231 (2009), rev. denied 290 Kan. 1102 (2010); see State v. Johnson, 222 Kan. 465, 475, 565 P.2d 993 (1977) (Supreme Court approved jury instruction which stated that “in this County” was material element which Stale had to prove beyond a reasonable doubt). Thus we must determine on review whether the evidence, viewed in the light most favorable to the prosecution, proved venue. Stevens, 285 Kan. at 325.
Venue “ ‘may be established by proof of facts and circumstances introduced in evidence from which the place or places of commission of the crime or crimes may be fairly and reasonably inferred. [Citation omitted.]’ “ Stevens, 285 Kan. at 325. “Accordingly, venue need not to be established by a specific question and answer that the offense occurred in the particular county; rather, it may be established through other competent evidence.” (Citation omitted.) 285 Kan. at 325. Hence “[v]enue may be established by circumstantial evidence.” State v. Lieurance, 4 Kan.App.2d 87, Syl. ¶ 4, 782 P.2d 1246 (1989), rev. denied 246 Kan. 769 (1990).
Here, Officer Thompson's report, which was incorporated into the stipulation, showed that he worked for the Newton Police Department, and that he stopped Bennett less than three miles from the spot where he first clocked him while on patrol. He took Bennett to the Harvey County Detention Center, called Harvey County Communications for a tow truck, took evidence to the Newton Police Department and referred the case to the Harvey County prosecutor. The situation here is similar to that considered in Stevens, where the court observed that “there was no evidence that [the officer] had been dispatched outside of his jurisdiction ... and generally he would not have authority to make an arrest as a law enforcement officer outside his jurisdiction.” 285 Kan. at 325–26. Absent any evidence to the contrary, the admitted evidence establishes a reasonable inference that Officer Thompson was operating in Harvey County when he arrested Bennett.
We conclude that the State established venue.
Possession
Finally, Bennett argues that the State did not prove beyond a reasonable doubt that he knew of the presence of the cocaine found in the console of his vehicle. This court's review is again de novo. We must determine whether the evidence was sufficient to show that Bennett possessed the cocaine beyond a reasonable doubt.
Bennett was charged with violation of K.S.A.2010 Supp. 21–36a06(a), which made it “unlawful for any person to possess any opiates, opium or narcotic drugs ... or a controlled substance analog thereof.” The legislature defined “[p]ossession” to mean: “having joint or exclusive control over an item with knowledge of and intent to have such control or knowingly keeping some item in a place where the person has some measure of access and right of control.” K.S.A.2010 Supp. 21–36a01(q). Case law shows that “[p]ossession may be immediate and exclusive, jointly held with another, or constructive, as when marijuana is kept by the accused in a place where he or she has some measure of access and right of control.” State v. Dean, 42 Kan.App.2d 32, Syl. ¶ 4, 208 P .3d 343 (2009)
The stipulated facts show Bennett owned the vehicle and was operating it by himself. The cocaine was found in the center console near the driver's seat. The cocaine was immediately visible upon opening the console lid. There is no evidence that anyone else had access to the vehicle or to the console within the vehicle. Bennett clearly had “some measure of access and right to control” the items in the console. Any disavowal of “knowledge” would be somewhat disingenuous under these circumstances.
The evidence is sufficient to direct us to the conclusion that Bennett knowingly possessed the cocaine beyond a reasonable doubt.
Affirmed.