Opinion
No. 108,782.
2013-07-5
STATE of Kansas, Appellant, v. Melanie KREHBIEL, Appellee.
Appeal from Reno District Court; Trish Rose, Judge. Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant. Carl F.A. Maughan, of Maughan Maughan LC, of Wichita, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant. Carl F.A. Maughan, of Maughan Maughan LC, of Wichita, for appellee.
Before BUSER, P.J., McANANY and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
During the execution of a drug search warrant, deputies with the Reno County Sheriff's Office detained defendant Melanie Krehbiel and others present in the house for safety reasons. After conducting a pat-down search, Detective Diana Skomal requested and received consent to search Krehbiel's pockets, where she found marijuana. The Reno County District Attorney subsequently charged Krehbiel with felony possession of marijuana. The defendant filed a motion to suppress, alleging the detective did not have consent to search her pockets. After a hearing, the district court granted the defendant's motion. The State filed an interlocutory appeal concerning the suppression of evidence. Because we agree with the district court's suppression of the evidence, we affirm and dismiss the appeal.
Factual and Procedural History
On March 19, 2012, Detective Skomal and other officers of the Reno County Sheriff's Office executed a narcotics search warrant on Donna Myers' residence. When the detective entered the residence, she observed several female occupants in the living room, including Krehbiel. The detective first conducted a pat-down search of Krehbiel's outer clothing. She then requested and received consent to search Krehbiel's pockets, where the detective recovered a pack of cigarettes that contained “a green leafy vegetation that appeared to be marijuana.” Three days later the Reno County District Attorney filed a complaint charging Krehbiel with a single count of possession of marijuana with a prior conviction, a felony.
On August 31, 2012, Krehbiel filed a motion to suppress alleging, inter alia, Detective Skomal lacked reasonable suspicion to conduct a pat-down search, lacked consent to search her pockets, and removal of the cigarette box dispelled any concern for officer safety; thus, looking inside the box was an illegal search. At a hearing on the motion, the district court heard arguments from counsel regarding Krehbiel's motion to suppress and testimony from Detective Skomal and Krehbiel.
The next day, in open court, the judge granted Krehbiel's motion to suppress, stating, “The officer testified and ... I did not dispute any of the officer's statements. The officer certainly was credible and I believe testified as to what truly happened.” The court found Krehbiel consented to the search of her pockets. However, the court concluded Krehbiel had done nothing to suggest suspicion of a crime or involvement in any drug operation and had not threatened the officers. The court determined that after Krehbiel “was frisked she should have been let go and because of that, I don't believe the request to search really was proper under Terry v. Ohio.”
The State timely filed an interlocutory appeal.
Was There Substantial Competent Evidence to Support the District Court's Suppression of Evidence?
Standard of Review
“ ‘When reviewing a motion to suppress evidence, an appellate court determines whether the factual underpinnings of the district judge's decision are supported by substantial competent evidence. The ultimate legal conclusion to be drawn from those facts raises a question of law requiring application of a de novo standard.’ [Citation omitted.] An appellate court does not weigh evidence to find facts. [Citation omitted.] In addition, ‘[t]he State has the burden of establishing the scope and voluntariness of the consent to search. These questions present issues of fact’ that appellate courts review for substantial competent evidence to support them. [Citation omitted.]” State v. Ransom, 289 Kan. 373, 380, 212 P .3d 203 (2009).
Here, the facts were effectively undisputed, and the district court accepted the detective's rendition of the events. All that remains is the application of those facts to the governing legal principles—a question of law. See State v. Beltran, 48 Kan.App.2d –––, ––––, 300 P.3d 92, 98 (2013) ( Case No. 106,842, filed May 3, 2013).
Analysis Search of Krehbiel's pockets was beyond the scope of her detention.
Krehbiel briefly argues in her brief that the search of her pockets by the detective was beyond the scope of her detention, making it unlawful. The district court, relying on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), agreed and granted the defendant's motion to suppress. There is support for the district court's approach.
The Fourth Amendment to the United States Constitution protects persons against unreasonable searches and seizures. “Absent a warrant from a judge, a government agent's search violates the Fourth Amendment unless the circumstances fit within a recognized exception to the warrant requirement.” Beltran, 48 Kan.App.2d at ––––. While the officers did not have a search warrant for Krehbiel, they did have one for the house; therefore, they had the constitutional authority to detain her while they looked through the house for contraband and evidence related to drugs. 48 Kan.App.2d at –––– (citing Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 [1981] ) (search warrant for contraband carries with it the authority to detain the occupants of the premises while the search is being conducted). “The authority of law enforcement officers to seize persons under Summers extends to anyone on the premises to be searched even if the individual has no ownership or possessory interest in the premises.” 48 Kan.App.2d at ––––.
However, the search warrant did not permit the detective to conduct a full search of Krehbiel simply because she was on the premises. See 48 Kan.App.2d at ––––. A search of Krehbiel's person had to be supported by probable cause particularized to her plus exigent circumstances. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); State v. Houze, 23 Kan.App.2d 336, Syl. ¶ 1, 930 P.2d 620 (1997). Under K.S.A. 22–2509(a) and Terry v. Ohio, the detective was allowed, at most, to conduct only a limited pat-down search of Krehbiel for weapons. 444 U.S. at 92–93; see also State v. Vandiver, 257 Kan. 53, 63–64, 891 P.2d 350 (1995) (where law enforcement officers observe unusual conduct of persons while executing a search warrant of the premises, they are entitled, for their protection, to conduct a limited search of such persons' outer clothing for weapons). “In conducting a constitutionally acceptable pat-down search, a law enforcement officer is confined to ‘patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.’ “ Beltran, 48 Kan.App.2d at –––– (quoting Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917 [1968] ). Reaching into the person's pocket is beyond the scope of a lawful pat-down search. 48 Kan.App.2d at. Accordingly, the State has to show that law enforcement had reasonable suspicion particularized to Krehbiel plus exigent circumstances to support a search of her pockets.
In Vandiver, law enforcement was executing a search warrant for drugs at a residence. Moneymaker, the lessee, opened the door to the apartment when Officer Wilson knocked on the door. The officer entered the kitchen and arrested Moneymaker. The officer then scanned the living room and observed six persons (including Vandiver) playing a Nintendo-type game. The apartment reeked of burnt marijuana, and a baggy containing green vegetation thought to be marijuana by the officer was on the living room floor in the midst of the people (including Vandiver) gathered around playing the game. The officer informed them that he had a search warrant for the apartment and conducted a pat-down search of Vandiver. The officer removed a 35 mm film canister, which contained marijuana, from Vandiver's front pants pocket. Vandiver was arrested and charged with possession of marijuana. A panel of this court found that there was no evidence Vandiver or the others (except one) were other than social guests, there was nothing linking Vandiver to the smell of burnt marijuana or to the marijuana on the floor, and Vandiver and the others present cooperated with the officer and did not attempt to flee or conceal or destroy evidence. Vandiver, 257 Kan. at 60. The Supreme Court upheld this court's determination that the officer lacked probable cause to search Vandiver, concluding that there was “no substantial competent evidence that exigent circumstances existed to authorize the search of Vandiver.” Vandiver, 257 Kan. at 64.
Similarly, in State v. Johnson, a law enforcement officer was dispatched to an apartment to investigate a report of a burglary. The officer found the defendant and another woman packing the tenant's belongings. Another officer confirmed that the defendant was the tenant's girlfriend and that the tenant had been asked to vacate the premises. Neither woman did anything to cause the officer to suspect a burglary was in progress, and neither attempted to leave. However, the officer questioned the defendant, and when the defendant disobeyed the officer's directive not to reach for her cigarettes in her purse, because of the officer's experience with persons hiding razor blades in cigarette boxes, the officer seized the pack. The officer ultimately decided to open the cigarette pack and found a glass pipe. The Supreme Court held the search of the cigarette pack itself to be unlawful as beyond the scope of the investigation for officer safety, reasoning that once the cigarette pack was secured, any threat its contents may have posed was eliminated. State v. Johnson, 293 Kan. 959, 968, 270 P.3d 1135 (2012),
Here, the stated purpose by Detective Skomal for detaining Krehbiel was for officer safety. She was not a subject of the search warrant and had done nothing while being detained to justify a further search of her person beyond the pat-down, which was done twice to ensure no weapons were on her person. After no weapons were found on her, without more, Krehbiel should have been free to go once the search of the residence had been completed. There is simply no evidence in the record to support a probable cause finding to justify searching Krehbiel's pockets. Instead, she was subjected to a search that “could serve no purpose except to open up a hunt for evidence unrelated to ... [Krehbiel's] detention.” State v. Spagnola, 295 Kan. 1098, 1108, 289 P.3d 68 (2012).
Consent to search Krehbiel's pockets.
Because the search was not within the scope of Krehbiel's detention, and because the search was not supported by probable cause particularized to her plus exigent circumstances, the only way for the search to be lawful was for Krehbiel to have given the detective valid consent to search her person. The State argues the search of Krehbiel's pockets was lawful because it was conducted after voluntary consent Krehbiel contends that the subsequent search of her pockets was the result of coercion or mere acquiescence.
Generally, as previously stated, a search conducted without a warrant is per se unreasonable unless the search falls within one of the recognized exceptions to the search warrant requirement, such as consent. Ransom, 289 Kan. at 380. More specific to this case, “under proper circumstances, the police may search a nonresident visitor or the visitor's belongings in the course of executing a warrant for a premises search. Such circumstances include where the individual consents to being searched....” Vandiver, 257 Kan. at 62. To have a valid consent to search, “two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given; and (2) the consent must have been given without duress or coercion, express or implied.” Spagnola, 295 Kan. at 1107. “Whether a consent was freely given is determined by the totality of the circumstances.” Spagnola, 295 Kan. at 1107;United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (based on totality of the circumstances defendant voluntarily consented to search); Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996) (The Fourth Amendment test for a valid consent to search is that the consent be voluntary, and voluntariness is a question of fact to be determined from all the circumstances.). “ ‘ “Consent” that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse.’ [Citation omitted.].” Spagnola, 295 Kan. at 1107. The appropriate inquiry is whether a reasonable person would feel free to decline the officer's requests. Spagnola, 295 Kan. at 1107.
At the motion to suppress hearing, Detective Skomal described the residence as “very small” and not very well lit. The detective testified that the occupants of the residence, including Krehbiel, were detained. She said it is normal procedure to seize everyone present for officer safety on a drug search warrant. The detective testified that the occupants of the residence could not leave until the officers checked to see if they had outstanding warrants and, subsequently, released them. The detective had no prior knowledge that there were weapons in the residence. The detective stated that Krehbiel did not exhibit any unusual conduct or express any words that would lead her to believe that Krehbiel might be dangerous. Further, the detective was not aware that another officer had already conducted a pat-down search of Krehbiel for weapons. The detective conducted a pat-down search of Krehbiel's outer clothing for weapons and did not feel anything that concerned her. The detective then requested and received consent to search Krehbiel's pockets, where she found a cigarette box that contained a green leafy substance. The detective stated Krehbiel was handcuffed during the pat-down and search of her pockets. The district court concluded the detective had testified as to what truly happened and was credible.
Krehbiel also testified at the motion to suppress hearing. She stated that prior to the pat-down by the detective, a male officer told her to stand up, proceeded to pat her down for weapons, then told her to sit down. Thereafter, the detective conducted a second pat-down search for weapons. Krehbiel said that there were other officers and occupants of the residence in the room when the detective searched her.
The district court did not address the voluntariness of Krehbiel's consent, merely finding she had “consented” to the search of her pockets. Instead, the district court relied on the premise that the search of Krehbiel's pockets was beyond the scope of her detention. Given the complete record and the fact that the district court relied on the detective's version of events, we are in as good a position as the district court to decide the voluntariness of Krehbiel's consent.
We hold the detective could not have obtained a voluntary consent considering the circumstances surrounding the search of Krehbiel's pockets: (1) She was not permitted to leave the residence until officers checked to see if she had an outstanding warrant, (2) two officers conducted a pat-down search of her outer clothing for weapons, (3) she was handcuffed during the pat-down and subsequent search of her pockets, (4) she did not exhibit any unusual behavior, and (5) the search took place in a small room where multiple officers were present. A reasonable person would not have felt free to decline the detective's request. The State did not meet its burden of establishing the voluntariness of the consent to search.
Accordingly, while the district court was incorrect in suppressing the evidence solely because the search was beyond the scope of the detention and without looking at the voluntariness of Krehbiel's consent, because substantial competent evidence supports the district court's suppression of the evidence obtained from Krehbiel's pocket, we can affirm the district court even if the reason given for the suppression of the evidence was incorrect. State v. May, 293 Kan. 858, 869–70, 269 P.3d 1260 (2012).
Affirmed.