Summary
finding vehicle passenger had standing to challenge search because he owned seized property
Summary of this case from State v. RichardOpinion
No. 106,374.
11-30-2012
STATE of Kansas, Appellee, v. Nicholas W. HAYS, Appellant.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
SLATER, J. This appeal arises out of Nicholas W. Hays' convictions for possession with intent to distribute a controlled substance, no tax stamp, and possession of materials to manufacture controlled substances. Hays filed a motion to suppress the evidence obtained during the vehicle stop, which was denied by the trial court. Following a bench trial, Hays was convicted and he has appealed to this court. The State argues Hays lacks standing to challenge the vehicle search because he did not own the vehicle, nor did he hold a possessory interest in the vehicle. Further, the State contends City of Wichita Officer Randy Williamson's initial intrusion into the vehicle was justified for the officers' safety. We hold the search was justified and affirm the convictions.
Factual and Procedural Background
On October 22, 2009, at 1 a.m., Officers Randy Williamson and Paul Duff of the Wichita Police Department saw a van traveling the wrong direction down a one-way street. The officers activated their emergency lights, and as the van came to a stop, both the driver and the passenger exhibited furtive movements, specifically, they were “digging around down next to the seat, and the passenger was digging around under his seat and reaching around behind him into the back seat and doing things that are just not normal to be doing once the police car is behind you.” Williamson also noted that the time of day combined with the van occupants' movements concerned him for his and Duff's safety.
Williamson approached the van on the passenger side of the vehicle and spoke with the passenger, who identified himself as Nicholas Hays. Williamson ran a warrant check and learned Hays had a county warrant for his arrest, although he did not learn the reason for the warrant. Williamson arrested Hays based on the warrant and searched him incident to arrest, finding nothing illegal. Hays had a wallet, keys, and a large amount of currency. Meanwhile, Duff had the driver step from the vehicle and patted the driver down for weapons. The driver's license was valid, and the officers were going to allow the driver to leave, but prior to doing so, Williamson did a protective sweep of the vehicle to make sure there were no weapons in view under the seat or laying down next to the seat where the van occupants were making their furtive movements. When he stuck his head in the driver's side of the van, he smelled raw marijuana. Williamson then did a thorough search of the vehicle and did not locate any marijuana. Williamson did, however, find a small black lockbox in the backseat located where he had seen Hays reach while the officers were stopping the vehicle.
Williamson asked Hays if the lockbox was his, and Hays initially denied ownership. Williamson contacted dispatch and requested canine assistance with the stop. As he was waiting for the canine to arrive, Williamson approached Hays again and removed some keys that were in Hays' pocket. One of keys was small and had the numbers “007” on it, the same numbers as on the lockbox. Williamson again asked Hays if the box was his, and Hays admitted ownership. Hays told Williamson that the box contained marijuana. By this time, the canine had arrived, and the canine indicated on the lockbox for the odor of illegal drugs. Williamson then used the key and opened the box, which held a Crown Royal bag containing a plastic baggy with marijuana in it. Williamson read Hays his Miranda rights; Hays waived those rights and agreed to talk to Williamson about the lockbox. Hays said that the marijuana belonged to him and that he planned to sell it and make a $20 profit. Williamson then placed Hays under arrest.
The State charged Hays with one count of possession with intent to distribute a controlled substance, no tax stamp, and possession of materials to manufacture controlled substances. Hays filed a motion to suppress the evidence, which the district court denied. The case proceeded to a bench trial on stipulated facts, and Hays was found guilty of all three charges. He was placed on probation with an underlying controlling sentence of 14 months' imprisonment.
Standing to Challenge a Vehicle Search
For the first time on appeal, the State argues that Hays, as the passenger in a stopped vehicle, does not have standing to challenge the vehicle search. Standing is a component of subject matter jurisdiction, which may be raised for the first time on appeal. Whether standing exists is a question of law subject to unlimited review. State v. Gilbert, 292 Kan. 428, 431–32, 254 P.3d 1271 (2011). In State v. Ralston, 45 Kan.App.2d 1024, 1027, 257 P.3d 814 (2011), rev. denied 293 Kan. –––– (2012), we stated:
“ ‘[A] defendant cannot object to the seizure of evidence without proper standing to challenge the validity of the search. On the issue of standing, the burden is on the defendant to show an expectation of privacy in the property searched. A defendant may testify at a suppression hearing to establish his or her standing to challenge a search without jeopardizing his or her defense at trial. State v. Cruz, 15 Kan.App.2d 476, 484, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991); see State v. Sumner, 210 Kan. 802, 803–04, 504 P.2d 239 (1972).’ State v. Gonzalez, 32 Kan.App.2d 590, 593, 85 P.3d 711 (2004).”
It is important to note that Hays only challenges the initial search of the vehicle for officer safety. Hays does not challenge the second search of the lockbox itself. Probable cause to search the lockbox was based on the odor of raw marijuana and the canine alert on the lockbox. Probable cause was narrowed to the lockbox, and the officer was justified seizing and opening it in light of defendant's admission the lockbox was his and that it contained marijuana. Issues not briefed by the appellant are deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Therefore, the only issue before this court is whether Hays has standing to challenge the initial search of the vehicle for weapons.
The State's argument that Hays lacks standing because he was neither the owner of, nor held a possessory interest in, the vehicle searched is founded on Gilbert, 292 Kan. at 428, 254 P.3d 1271. In that case, the defendant was a passenger in a parked car he did not own. Officers saw Gilbert in the vehicle and confirmed there was an outstanding warrant for his arrest. Gilbert was taken into custody, and the car was searched incident to his arrest. The State conceded that the search was unconstitutional; however, our Supreme Court found that a passenger who did not own or have a possessory interest in the vehicle may not challenge the vehicle's search incident to the passenger's arrest. 292 Kan. at 428–29, 254 P.3d 1271. In Gilbert, our Supreme Court relied on Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), where the United States Supreme Court held that a person aggrieved by an illegal search and seizure only through introduction of evidence obtained by search of a third-person's premises has not had his or her Fourth Amendment rights infringed. Gilbert, 292 Kan. at 429, 432–33, 254 P.3d 1271. The opinion also explicitly holds that Rakas was not overturned or limited by Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007), because “ Brendlin's holding is limited to whether a passenger may contest a vehicle's stop in the same manner as the driver” and does not extend “to give passengers with a nonpossessory interest in the vehicle standing to contest a subsequent search of the vehicle's interior.” (Emphasis added.) 292 Kan. at 434–35, 254 P.3d 1271. Here, as in Gilbert, Hays does not contest the vehicle's stop; he contests the subsequent search of the vehicle for weapons.
As the State candidly points out, however, Hays did claim ownership of the lockbox itself before the box was searched. But the State argues that under Gilbert, Hays cannot establish standing to object to a vehicle search simply by leaving behind a single piece of personal property in the vehicle to be searched.
The State also argues that Hays has abandoned this avenue of establishing standing because he does not brief it on appeal. On appeal, Hays only argues that the search was not justified as a search for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This court has unlimited review over standing issues, and standing can be raised for the first time on appeal. The issue is whether Hays met his burden in the district court to show an expectation of privacy in the vehicle searched. See Crone v. Nuss, 46 Kan.App.2d 436, 451, 263 P.3d 809 (2011), rev. denied 294 Kan. –––– (June 13, 2012) (finding issues relating to the standing may be raised at any time).
The State argues that Hays cannot establish standing to challenge the vehicle search by establishing a privacy interest in the lockbox. In Gilbert, the court reiterated past Kansas caselaw holding that a “ ‘[d]efendant who has no interest in premises, either of a proprietary or posessory character, has no standing to invoke the constitutional guaranty of immunity from unreasonable search and seizure.’ “ Gilbert, 292 Kan. at 433, 254 P.3d 1271. Also, our Supreme Court noted:
“ ‘An illegal search can only violate the rights of those who have a legitimate expectation of privacy in the invaded place. The basic test to determine whether or not a person present on the premises at the time of the search has standing to challenge the validity of the search is not whether that person had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.’ “ State v. Epperson, 237 Kan. 707, 716–17, 703 P.2d 761 (1985) (quoting State v. Worrell, 233 Kan. 968, Syl. ¶ 1, 666 P.2d 703 [1983] ).
See also State v. Ulrey, 41 Kan.App.2d 1052, 1060, 208 P.3d 317 (2009) (“[I]f there is no legitimate basis for the passenger to challenge the initial detention of the vehicle, he or she likely has no standing to object to the search of a vehicle lawfully detained.”).
The Gilbert court, however, noted that Gilbert did not argue he had a reasonable expectation of privacy in the car or its contents. See Gilbert, 292 Kan. at 433, 435, 254 P.3d 1271. In Epperson, our Supreme Court made clear that owning or possessing an automobile does not fully dispose of the passenger standing issue. 237 Kan. at 716, 703 P.2d 761. The Court held that to establish a sufficient privacy interest, “ ‘a movant must claim either to have a proprietary or possessory interest in the premises searched, or to have owned or possessed the seized property.’ “ 237 Kan. at 716–17, 703 P.2d 761 (quoting State v. Boster, 217 Kan. 618, 621, 539 P.2d 294 [1975] ). The Epperson court went on to find that, under the facts of that case, Epperson had failed to show he had an expectation of privacy in the property seized and could not establish standing through this avenue because he did not testify and there was no evidence in the record that the cocaine seized belonged to Epperson. 237 Kan. at 717, 703 P.2d 761.
Hays has met his burden of establishing standing. In the district court, during the motion to suppress hearing, Williamson's testimony established that Hays owned the lockbox. Because the record supports a finding that Hays was the owner of the lockbox, under Epperson Hays can challenge the vehicle search because he owned the seized property. See Epperson, 237 Kan. at 716–17, 703 P.2d 761.
Did the District Court Err in Upholding the Initial Search Based on the Officer's Protective Search of the Vehicle for Weapons?
Hays argues that Williamson's basis for initially searching the car—a protective sweep for weapons—was illegal because Williamson did not have reasonable and articulable facts indicating that the driver was dangerous and could gain immediate control of weapons. The general standard of review for an issue of evidence suppression is bifurcated. First, without reweighing the evidence, the appellate court reviews the district court's findings for supporting substantial competent evidence. Then, the ultimate legal conclusion is reviewed de novo. State v. Sanchez–Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012). The State bears the burden to demonstrate that a challenged seizure or search was lawful. State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).
Is Hays' Challenge to the Initial Search Preserved for Appeal?
The State first argues that Hays did not present this specific argument to the district court; therefore, it is not properly before this court on appeal. In order to properly preserve this issue for appeal, Hays must satisfy two requirements. First, when a district court denies a motion to suppress, the moving party must object to the introduction of that evidence at the time it is offered at trial to preserve the issue for appeal. State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009). Second, the party must have raised the specific argument before the district court that is presented on appeal, as issues asserted for the first time on appeal are generally not properly preserved for appellate review. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Also, it is well established that “ ‘[t]he defendant cannot object to the introduction of evidence on one ground at trial and then assert a different ground on appeal.’ [Citation omitted.]” State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 1148 (2005). At the bench trial on stipulated facts, the district court found that Hays had the right to challenge the suppression ruling on appeal, and the State does not challenge this finding. But the State argues Hays did not sufficiently raise the officer safety argument before the district court.
But here, Hays properly objected to the vehicle search and the subsequent search of his property. He argued both at the district court and now argues on appeal that the State failed to meet its burden of justifying the search; it was not Hays' burden to anticipate what facts the State would articulate to support the warrantless search. Cf. State v. Jones, 47 Kan.App.2d 866, 873, 280 P.3d 824 (2012) (“The State has the burden of proof in these matters, and we decline to provide it with a second bite of the apple if the officer has had adequate opportunity to explain the basis for a vehicle stop and has failed to articulate other facts that might have supported the stop.”).
The State cites State v. Preston, 41 Kan.App.2d 981, 990–91, 207 P.3d 1081 (2009), reversed in part on other grounds by 294 Kan. 27, 272 P.3d 1275 (2012), to support its argument that Hays' challenge was not properly preserved. But the Preston panel was only distinguishing officer safety concerns in a search incident to arrest from a protective search based on a concern for officer safety; the court did not address a defendant's burden to raise these issues. 41 Kan.App.2d at 990, 207 P.3d 1081. The Preston panel did note that in that case the defendant failed to object at trial to the pat-down search and only challenged the vehicle search; therefore, the issue was not properly before the court for review. 41 Kan.App.2d at 987, 207 P.3d 1081. Preston, therefore, illustrates that our appellate courts require a defendant to challenge the portion of the police conduct that the defendant argues is illegal before the district court.
Unlike the defendant in Preston, however, Hays does not now wish to challenge an entirely different portion of the police conduct, i.e. the pat-down search or the vehicle stop, for the first time on appeal. See Preston, 41 Kan.App.2d at 987, 207 P.3d 1081. Rather, he challenges the same police conduct—the initial vehicle search—and argues the State failed to meet its burden to demonstrate that a challenged seizure or search was lawful. Therefore, this court should proceed to the merits of Hays' argument.
Was the Officer Justified in Conducting a Protective Search of the Vehicle for Weapons?
Hays only challenges the initial vehicle search, which the district court justified as a protective search for weapons. A warrantless search is unreasonable unless it falls within one of the exceptions recognized in Kansas. Sanchez–Loredo, 294 Kan. at 55, 272 P.3d 34. A protective search of the vehicle for weapons falls under the stop and frisk or Terry exception to the warrant requirement. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); see Preston, 41 Kan.App.2d at 989–91, 207 P.3d 1081; State v. Warren, 38 Kan.App.2d 697, 699, 171 P.3d 656 (2007), rev. denied 286 Kan. 1185 (2008). When an officer conducting a Terry stop reasonably believes the detainee “is dangerous and ... may gain immediate control of weapons,” he or she may search “the passenger compartment of [the detainee's] automobile, limited to those areas in which a weapon may be placed or hidden.” Long, 463 U.S. at 1049. “ ‘[T]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ “ State v. Johnson, 293 Kan. 959, 965, 270 P.3d 1135 (2012) (quoting Terry, 392 U.S. at 27).
In Johnson, our Supreme Court defined and discussed reasonable suspicion in the context of a Terry frisk:
“Reasonable suspicion is based on the totality of existing circumstances, taking into account an officer's reasonable inferences based on training, experience, and common sense. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). ‘[I]n determining whether the officer acted reasonably ..., due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.' Terry, 392 U.S. at 27. The officer ‘must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.’ Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) .” Johnson, 293 Kan. at 966, 270 P.3d 1135.
When ruling on the motion to suppress, the district court made the following findings regarding the initial search:
“The issue, then, about getting into the vehicle, the—the mere arrest of the defendant is not sufficient to search. But the officers had previously observed the movements that had been described by the testimony of one officer here today about the parties reaching around, one—both reaching under the seat, and then the defendant himself reaching around into the back seat area. And because of those type of movements, for officer safety it does justify the search for weapons. Especially since the defendant—while he's being arrested, the other person, the driver was going to be allowed to get access back into the car, again knowing that his friend had just been arrested. So it certainly raises legitimate public—or officer safety issues, allowing that person to go back and get into the vehicle where these movements were observed taking place while the passenger has just been arrested. So in order for the officers to be safe, that there—this was not the stashing of some weapons under the seat or in the back seat, the officers had the justification to briefly enter into the vehicle to observe strictly for whatever—there were any weapons.”
Hays argues that the facts articulated by Williamson in this case were not sufficient to establish a reasonable belief that the driver was a dangerous individual. He argues that because the officers were part of a unit patrolling for illegal narcotics, the officers most likely thought the driver and passenger's furtive movements were related to suspicion of narcotics, an impermissible purpose for a Terry search. The State argues that Williamson's initial intrusion was supported by reasonable suspicion, pointing to Williamson's testimony regarding the furtive movements of both the passenger and the driver which led him to believe that they might be trying to hide a weapon or access a weapon. The State also notes that Williamson testified that during the time of day that he works, assaults on law enforcement officers are higher. Finally, the State argues that Williamson articulated heightened concern because the driver was going to be released and would have full access to the vehicle while in the officers' presence.
In light of the totality of the circumstances, we hold that Williamson had sufficient reasonable suspicion to conduct a limited weapons search. Williamson testified that the stop took place at 1 a .m. and that during his shift felony assaults on law enforcement officers are higher which caused him concern for his and Duff's safety. Williamson also noted that there had been a large number of narcotic complaints in the area where the stop took place. In Long, the Supreme Court considered that the stop occurred late at night in a rural area as circumstances justifying the officers' reasonable belief that Long posed a danger if he were permitted to reenter his vehicle. 463 U.S. at 1050; see also 4 LaFave, Search and Seizure § 9.6(a), p. 633 (4th ed.2004) (noting that contact occurring during the hours of darkness is a factor to consider but most likely would not justify a frisk on its own).
Further, Williamson was in a situation where he planned to release the vehicle back to the driver. The Preston panel recognized the need to ensure that the driver did not have access to weapons in the car as one factor supporting reasonableness of the search. 41 Kan.App.2d at 990, 207 P.3d 1081. For these reasons the district court did not err in denying the motion to suppress.
Affirmed.