Opinion
No. 105,734.
2012-05-25
STATE of Kansas, Appellee, v. Christopher W. MUELLER, Appellant.
Appeal from Harvey District Court; Joe Dickinson, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Russell A. Coleman, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Harvey District Court; Joe Dickinson, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Russell A. Coleman, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher W. Mueller appeals the district court's denial of his motion to suppress the drugs that the police obtained in a search of a container found on Mueller's person incident to his lawful arrest.
On October 5, 2009, Officer Jennifer Motes of the Halstead Police Department stopped a vehicle driven by Mueller's mother, Rona, outside of her home because the vehicle-registration tags on her license plate had expired. At the time of the stop, Mueller was a passenger in Rona's car. Officer Motes left after learning Rona had renewed the tags and had proof of registration.
Officer Motes had met Mueller once before and had learned from other law enforcement officers that he might be involved with drugs. After the stop, Motes asked dispatch to check whether any warrants had been issued against Mueller. Dispatch notified Motes that an arrest warrant had been issued by the city of Newton. But the record does not explain why the warrant had been issued.
Motes returned to Rona's home, where she and Mueller were unloading groceries from the car. Motes arrested Mueller, handcuffed him, and searched his person for safety reasons. Motes first removed a pocketknife which according to Motes she may have given to Rona. According to Rona, Motes gave her the knife as well as keys, a billfold, and a pair of sunglasses obtained from the search.
Motes then removed a small metal Altoids tin from Mueller's pocket. She initially did not suspect that the metal tin contained any illegal content. However, upon opening the tin, Motes found six clonazepam pills, for which Mueller did not have a prescription. Mueller was then taken into custody and driven to the Harvey County Detention Center. At about this time, police dispatch confirmed the validity of the Newton warrant against Mueller.
The State charged Mueller with one count of possession of a controlled substance in violation of K.S.A.2009 Supp. 21–36a06(b). He filed a motion to suppress the drugs obtained from the search. Vern Schmidt of the county detention center testified at the suppression hearing that arrestees and the contents in their possession are thoroughly searched when admitted to the center. Rona testified she would have taken the metal tin had Motes given it to her.
The district court ultimately rejected Mueller's suppression motion and allowed the drugs to be admitted into evidence. In reaching this decision, the court largely reasoned that K.S.A. 22–2501 permits a law enforcement officer to reasonably search both the arrestee's person and a container found on the arrestee's person even if the container seems innocuous at first blush. The court, however, did not appear to resolve the State's argument that the drugs would have been inevitably discovered once Mueller arrived at the county detention center.
Mueller and the State proceeded to a bench trial on stipulated facts. Mueller renewed his objection to the admission of the drugs obtained from the search, thus preserving his suppression motion for appellate review. The court found Mueller guilty of one count of possession of a controlled substance. The court sentenced him to 18 months of probation with a 13–month underlying prison sentence.
The State bears the burden of proof for a suppression motion; it must prove to the trial court the lawfulness of the search and seizure. State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
An appellate court, however, uses a bifurcated standard to review the district court's decision on a motion to suppress. Without reweighing the evidence, the district court's findings are reviewed to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion regarding the suppression of evidence is then reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). But when the material facts to a district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008).
Mueller argues Motes violated his rights under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights to be secure from unreasonable searches. Although Mueller admits he was lawfully arrested, he contends the search incident to his arrest exceeded its permissible scope because Motes did not have a valid safety concern or suspicion of contraband before opening the metal tin, which contained the drugs that Mueller sought to suppress. In rebuttal, the State argues Motes lawfully searched the tin, the search would be subject to the good-faith exception to the exclusionary rule, and the drugs would have been inevitably discovered upon Mueller's arrival at the county detention center.
The Fourth Amendment prohibits unreasonable governmental searches and seizures. Although warrantless searches are generally considered to be unreasonable, such searches are permitted when incident to a lawful arrest. See State v. Groshong, 281 Kan. 1050, 1052, 135 P .3d 1186 (2006).
K.S.A. 22–2501—which was the principal statute at issue in the instant case—governs the proper scope of searches conducted by law enforcement officers. At the time of Mueller's arrest, the statute stated:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of (a) Protecting the officer from attack; (b) Preventing the person from escaping; or (c) Discovering the fruits, instrumentalities, or evidence of a crime.” K.S.A. 22–2501. (Emphasis added.)
However, the Kansas Supreme Court invalidated subsection (c) of this statute in the wake of Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). In Gant, the United States Supreme Court held unconstitutional the search of the defendant's car incident to his lawful arrest because the car was no longer in Gant's immediate presence when police detained him. Gant thus returned to the rule and rationale articulated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), which permits a search of an arrestee's person or the arrestee's immediate presence—the area within the arrestee's immediate control from which he or she might gain possession of a weapon or destructible evidence. Gant, 556 U.S. at 339. The Court thus limited its previous ruling articulated in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Gant, 556 U.S. at 343.
In State v. Henning, 289 Kan. 136, 209 P.3d 711 (2009), the Kansas Supreme Court applied Gant and held:
“The current wording of K.S.A. 22–250I(c) would permit a search of a vehicle incident to an occupant's or a recent occupant's arrest, even if the purpose of the search is not focused on uncovering evidence only of the crime of arrest. K.S.A. 22–2501(c) is thus facially unconstitutional under the Fourth Amendment ... and under Section 15 of the Kansas Constitution Bill of Rights.” (Emphasis added.) 289 Kan. 136, Syl. ¶ 6.
But the Kansas Supreme Court did not strike down 22–2501(a), which permits a search of the person incident to arrest for the protection of the officer.
Mueller argues that Motes did not have authority to open the metal tin because she was searching for evidence of any crime rather than the crime of arrest. The State briefly rebuts this claim, arguing Motes' authority to search Mueller incident to arrest extended to containers found on Mueller's person.
We find the State's argument to be persuasive. First, Gant and Henning concern whether a vehicle outside the arrestee's immediate presence can be searched incident to a lawful arrest. Neither case limits a police officer's ability to search an arrestee's person. See State v. Quintero–Negrete, No. 104,682, 2012 WL 139300, at *6 (Kan.App.2012) (unpublished opinion) ( pet. for rev. filed February 9, 2012) (“ Gant and its Kansas progeny do not prohibit a search of an arrestee's person, even if the search exceeds the scope necessary to retrieve fruits of the crime of arrest.”).
Second, Gant returned to the rule and rationale articulated in Chimel, which permits a warrantless search incident to a lawful arrest of the arrestee's person or immediate presence at which a weapon or destructible evidence could be obtained. Under the facts of the instant case, Chimel would still allow law enforcement officers like Motes to search items obtained from a lawful search of the arrestee's person. Again, Motes lawfully arrested Mueller in accordance with a warrant issued for him. To protect her safety, Motes performed a reasonable search incident to a lawful arrest as permitted by K.S.A. 22–2501(a).
Mueller cites no cases that prohibit a law enforcement officer from examining the contents of a closed container lawfully seized from the arrestee's person even though the officer does not initially believe there to be contraband inside. Indeed, the United States Supreme Court has permitted law enforcement officers to look in containers found on a person incident to arrest. In United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the United States Supreme Court found:
“Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the law enforcement officer] did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed. Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct. Harris v. United States, 331 U.S., at 154–155;Warden v. Hoyden, 387 U.S. 294, 299, 307, 1646, 1650 (1967); Adams v. Williams, 407 U.S., at 149.”
See also United States v. Finley, 477 F.3d 250, 260 (5th Cir.2007) ( “The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee's person.”)
Recently, in United States v. Flores–Lopez, 670 F.3d 803, 809 (7th Cir.2012), the United States Court of Appeals for the Seventh Circuit followed Robinson, stating:
“[E]ven when the risk either to the police officers or to the existence of the evidence is negligible, the search is allowed, United States v. Robinson, supra, 414 U.S. at 235, provided it's no more invasive than, say, a frisk, or the search of a conventional container, such as Robinson's cigarette pack, in which heroin was found.”
Consequently, because the search of Mueller incident to his arrest did not exceed its proper scope, the drugs found in the Altoids container were properly seized.
We note the recent case of State v. Johnson, 293 Kan. 959, 270 P.3d 1135 (2012), which involved the search of a cigarette pack. However, the Johnson case is distinguishable because the search occurred during a Terry stop rather than a search incident to arrest. While Mueller was under arrest on a warrant when the evidence was found on his person as he was being secured for transportation to jail, Johnson was not engaged in any obvious criminal activity and had not been placed under arrest when the officer took a package of cigarettes from her and searched the package.
The State also argues that Motes' seizure of drugs would be subject to the good-faith exception to the exclusionary rule and that even if Motes had illegally searched Mueller, the drugs found on Mueller's person would have been inevitably discovered once he was taken to the county detention center. In light of our finding that the search of the Altoid container and the seizure of the drugs found inside was valid, we need not reach these issues.
In conclusion, Motes performed a valid search of Mueller's person incident to his lawful arrest, which extended to the drugs found in the Altoids container on his person. Therefore, the district court did not err in denying the State's motion to suppress.
Affirmed. PIERRON, J., concurring:
I respectfully concur; however, the majority opinion does not deal with two of the State's arguments: that the search here can be justified by the good faith exception, and the inevitable discovery rule would save the search even if the search which produced the drugs was unlawful. I would find that under these facts, the good-faith exception does not apply but the inevitable discovery rule does.
Concerning the good-faith exception to the exclusionary rule, after State v. Henning, 289 Kan. 136, 209 P.3d 711 (2009), our Supreme Court recognized the exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance upon K.S.A. 22–2501(c) prior to the decision rendered in Gant. State v. Daniel, 291 Kan. 490, Syl. ¶ 9, 242 P.3d 1186,cert. denied131 S.Ct. 2114 (2010). But in the instant case, the facts make it clear that Motes searched Mueller on October 5, 2009, more than 3 months after the Henning decision on June 26, 2009. Therefore, Motes could not have relied in good faith on her belief of the statute's validity.
However, the State persuasively argues that even if Motes had illegally searched Mueller, the drugs found on Mueller's person would have been inevitably discovered once he was taken to the county detention center. If the prosecution can establish by a preponderance of the evidence that unlawfully obtained evidence ultimately or inevitably would have been discovered by lawful means, the evidence is admissible under the inevitable discovery rule. State v. Stowell, 286 Kan. 163, 166, 182 P.3d 1214 (2008). The burden is on the State to demonstrate ultimate admissibility. 286 Kan. at 166.
The State satisfied this evidentiary burden at Mueller's suppression hearing. Motes lawfully arrested Mueller in accordance with a warrant. Before driving Mueller to the county detention center, Motes received further confirmation that the warrant was valid. Deputy Schmidt, of the county detention center, testified that arrestees who are admitted to the center, as well as the contents on their person, are thoroughly searched.
In rebuttal, Mueller argues the metal tin would not have been inevitably discovered because Motes could have given the tin to Rona, as she did the knife and other items obtained from the search of Mueller's person. Mueller cites no cases to substantiate this theory. Moreover, as the State observes, it would be anomalous for Motes to hand over an unknown item—the metal tin—to Rona without further investigation. Likewise, at the suppression hearing, the court observed that although Motes chose to give some items to Rona, Motes “was free to retain anything else that had any kind of potential of illegality.”
In conclusion, Motes performed a valid search of Mueller's person incident to his lawful arrest, which extended to the contents found in the Altoids container on his person. Although the State's good-faith exception argument fails because Motes could not rely on a statute subsection that had been invalidated by our Supreme Court more than 3 months prior to the search, the State correctly asserts the drugs found on Mueller's person would have been inevitably discovered upon his arrival at the county detention center.