Opinion
111,514.
05-29-2015
STATE of Kansas, Appellee, v. Shaun A. SHOEMAKER, Appellant.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Kendra Lewison, assistant county attorney, Barry Wilkerson, County Attorney, and Derek Schmidt, attorney general, for appellee.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Kendra Lewison, assistant county attorney, Barry Wilkerson, County Attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Shaun A. Shoemaker appeals his convictions in the Riley County District Court for possession of methamphetamine and driving while suspended, claiming the district court erred in failing to suppress evidence obtained in a search of his vehicle. We find that this issue has not been properly preserved for appellate review.
In the early morning hours of June 14, 2012, Riley County Police Officer Steven Fritzson was watching a residence officers believed to house drug activity. Fritzson noted the license tags of the vehicles parked outside and ran the tags in an attempt to identify individuals at the residence. One of the vehicles was a pickup truck registered to Shoemaker Construction, Inc., a company owned and operated by Shoemaker's father. The database Fritzson used indicated that Shoemaker was a driver of the truck. Fritzson reviewed Shoemaker's driving history, discovered that his driving privileges had been suspended, and saw a photograph of Shoemaker.
At approximately 2:30 a.m., an individual left the residence in the truck and Fritzson followed. Initially, Fritzson could see that the truck had a single occupant but could not identify the driver. But as the truck turned, Fritzson pulled alongside it, observed the driver, and identified him as Shoemaker. Because Fritzson knew Shoemaker's driving privileges had been suspended, he stopped the truck.
As Fritzson approached the driver he noticed a rifle in the back seat of the extended cab, so he asked Shoemaker to exit his truck and walk to its rear. When Shoemaker stepped out of the truck, Fritzson observed empty handgun holsters on Shoemaker's waistband and on the driver's side floorboard. Fritzson patted-down Shoemaker but did not discover any weapons. Fritzson then asked about the missing handguns, and Shoemaker indicated that a handgun was in the back seat of the truck.
Fritzson informed Shoemaker of the reason for the stop, and Shoemaker provided his name and birth date. Fritzson then requested a canine unit. Officer Wright responded to the call and walked his dog around the car, but it gave no alert. Fritzson then arrested Shoemaker for driving while suspended. Shoemaker then told Fritzson that he had left his cell phone and wallet in the truck and asked Fritzson to retrieve them. He did not specify where to find those items but said they were “near the center console somewhere.”
Fritzson returned to the truck to search for the requested items. The interior of the truck was messy, as trash and clothes were lying about and items were piled on the back seat. Fritzson looked around the center console and did not see any cell phone so he opened the console. Fritzson pushed aside some trash and loose cash inside the console, then discovered a small plastic bag containing a substance he believed to be methamphetamine.
After finding the suspected methamphetamine, Fritzson broadened his search to look for other drug-related evidence. He discovered a small amount of marijuana, more methamphetamine, and some pills in the car. He did not recall where he ultimately found Shoemaker's cell phone but found it after he had discovered the methamphetamine in the console.
Based on evidence obtained from the search of Shoemaker's vehicle, the State charged Shoemaker with multiple counts of possession of controlled substances. Shoemaker moved to suppress the evidence, alleging that the initial stop was illegal, that the stop exceeded the reasonable scope of a traffic citation, and that the warrantless search of the vehicle was illegal. After an evidentiary hearing, the court denied the motion.
Shoemaker was tried by a jury and was convicted of possession of methamphetamine and driving while suspended. The court ultimately sentenced Shoemaker to a controlling prison term of 11 months but suspended the sentence in favor of 18 months of probation.
Shoemaker filed an untimely notice of appeal, but the appeal was accompanied by an affidavit by Shoemaker's attorney accepting responsibility for the late filing. Accordingly, the court shall exercise jurisdiction over the appeal. See Brizendine v. State, 210 Kan. 241, 244, 499 P.2d 525 (1972) ; State v. Ortiz, 230 Kan. 733, 735–36, 640 P.2d 1255 (1982).
The sole issue Shoemaker raises in this appeal is whether Fritzson's search of the console exceeded the scope of Shoemaker's consent. But the court finds it necessary to first address a procedural matter.
The State contends and Shoemaker concedes that no objection was made at trial to the admission of the evidence obtained as a result of the search. The Kansas Supreme Court has repeatedly held that a contemporaneous objection is necessary to preserve a suppression issue for appellate review. See State v. Kelly, 295 Kan. 587, 590, 285 P.3d 1026 (2012) (“We have not viewed the requirements of K.S.A. 60–404 and K.S.A. 22–3216 as mutually exclusive. This court has generally treated motions to suppress like other preliminary or in limine orders and held that an objection must also be made at trial in order to satisfy the requirements of K.S.A. 60–404, even though a pretrial ruling has been obtained.”); State v. Houston, 289 Kan. 252, 270–71, 213 P.3d 728 (2009) (“Consistent with this case law, we hold that when a pretrial motion to suppress has been denied, the evidence must also be objected to at the time it is offered during the trial in order to preserve the issue for appeal.”); State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009) (“We stress today the importance of this legislative mandate. K.S.A. 60–404 dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial.”); State v. White, 2014 WL 5312873, at *3 (Kan.App.2014) unpublished opinion (acknowledging that Kansas Supreme Court precedent requires a contemporaneous objection at trial to permit appellate review of a suppression ruling).
Shoemaker recognizes this precedent but contends that caselaw requiring a contemporaneous objection exceeds the statutory requirement that the objection be “timely interposed.” Shoemaker impliedly asserts that he timely interposed his objection by moving to suppress before trial. The relevant statute provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” KSA ... 60–404. The purpose of this rule is to give “ “ “the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial” “ [Citation omitted.]” State v. King, 288 Kan. 333, 342, 204 P.3d 585 (2009).
As support, Shoemaker cites State v. Hollingsworth, 289 Kan. 1250, 1261, 221 P.3d 1122 (2009). But the only language in Hollingsworth helpful to Shoemaker is found in the dissent. See Hollingsworth, 289 Kan. at 1261 (opining that an in limine ruling on a suppression motion remains law of the case until the court modifies or amends it, so an objection during trial is unnecessary). We remain bound by the majority rule, as the Court of Appeals has no authority to overrule the decisions of the Supreme Court. See Johnson v. Westhoff Sand Co., 281 Kan. 930, 952, 135 P.3d 1127 (2006) ; Noone v. Chalet of Wichita, 32 Kan.App.2d 1230, 1236, 96 P.3d 674 (2004).
The majority rule holds that a pretrial ruling in a jury trial is not sufficient because the “materiality of the proposed evidence may not become actually apparent until other evidence has been admitted.” State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 (1989). In other words, a pretrial objection by itself is not timely because the evidence may be different from that submitted at the pretrial hearing or the evidence may be viewed differently by the judge in the context of all of the evidence and argument heard at trial. State v. Kelly, 295 Kan. 587, 590, 285 P.3d 1026 (2012). And requiring an objection at a jury trial allows the court to be prepared to reconsider its original ruling after having heard the evidence unfolded during trial. Houston, 289 Kan. at 270. When a bench trial is based solely on stipulated facts, however, there is no basis for the judge to reconsider a pretrial ruling because the defendant has waived the right to dispute the evidence, so an objection during trial is unnecessary. State v. Bogguess, 293 Kan. 743, 745, 268 P.3d 481 (2012).
Based on the precedent which binds us, we find the issue is not properly before us and dismiss the appeal.
Dismissed.