Opinion
No. 110,634.
2014-12-5
STATE of Kansas, Appellee, v. Jason Davon TIPTON, Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge.Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.Laura L. Miser, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Laura L. Miser, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State charged Jason Davon Tipton with possession of methamphetamine. Tipton filed a motion to suppress all evidence seized as a result of a search. Tipton argued that Emporia Police Investigator Kevin Shireman was without reasonable suspicion and exceeded the scope of a permissible stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The State's response to the motion is not included in the record. The trial court held an evidentiary hearing on Tipton's motion. The court denied Tipton's motion. After a bench trial, the court convicted Tipton and sentenced him to 20 months in prison. Detective Kelly R. Davis and Investigator Shireman testified at the evidentiary hearing and the trial.
Detective Davis testified he was on duty on December 26, 2012. Shortly after 10 a.m., Davis drove past a house at 331 East Street. Davis and other officers frequently watched this house for drug activity. Davis knew that address was associated with several cases from the previous year that involved possession of marijuana, possession of methamphetamine with the intent to distribute, and other nondrug offenses. Davis personally had been involved with a search of the house in which a large quantity of methamphetamine and items from burglaries and credit card fraud were found. Wanda Ming lived at 331 East Street with her daughter Roseann Widener. Davis knew Widener was on probation at the time. Only Roseann was known to be associated with the criminal activity at 331 East Street.
Davis saw a male leave 331 East Street and ride away on a bicycle. Davis saw the man's face but did not immediately recognize him as Tipton. Because of Davis' knowledge of drug activity at 331 East Street, he continued to watch the man ride to a house that was only a few blocks away.
Detective Davis contacted Ming by phone and in person to determine who had just left her house. She identified the man as Tipton. Ming told Davis she expected Tipton to return shortly with methamphetamine. Davis then researched Tipton further to verify it was Tipton he had seen. It was, and Davis discovered Tipton was on parole for his second drug conviction. Davis shared that information with Investigator Shireman and Sergeant DeVries. Specifically, Davis told Shireman and DeVries he had seen a man leave the house, Ming had identified the man as Tipton, and Ming had said Tipton should be returning shortly with methamphetamines. Davis asked them to remain in the area to watch for Tipton and try to make contact with him. This was the extent of Davis' involvement.
Shireman and DeVries discussed Tipton's criminal history, the cases involving 331 East Street, and they decided to go to an area near the house. Shireman testified he set up surveillance between Tipton's and Ming's houses. About 15 minutes after arriving, Shireman saw Tipton riding his bicycle towards 331 East Street. Shortly after 11:30 a.m.—about 1 1/2 hours after Davis first saw Tipton leave the house, Shireman and DeVries made contact with Tipton in the alleyway behind Ming's house. Both officers were wearing plain clothes, their guns, and badges. Tipton identified himself to Shireman.
Shireman asked Tipton if he was carrying any weapons, and Tipton initially denied having any weapons. Shireman told Tipton he wanted to pat him down to check for weapons. Shireman testified his reasons for being concerned about safety were that Tipton (1) was wearing a bulky coat that could conceal things; (2) he was carrying a backpack; (3) he had a criminal history, though no history of violence; and (4) he was seen coming from and going to a house with a drug history. Shireman testified he did not see anything that appeared to be a weapon on Tipton.
In response to Shireman's request to pat him down, Tipton raised his arms. Shireman interpreted that to mean “go ahead, pat me down .” Shireman set Tipton's backpack down on the ground. Shireman raised the front of Tipton's coat so he could see Tipton's pockets. Shireman saw the clip of what he believed to be a pocketknife in Tipton's pocket. Shireman removed the pocketknife from Tipton's pocket. Shireman advised Tipton he intended to continue frisking Tipton for additional weapons. Tipton again denied having any additional weapons. Shireman began checking Tipton's pockets. Tipton then informed Shireman and DeVries he had an additional knife in his backpack, which was on the ground. Since Tipton had already been untruthful about having two knives in his possession, Shireman placed Tipton in handcuffs until he was sure Tipton had no additional weapons. Shireman continued to frisk Tipton, working down his legs, around his ankles, and back up to his waistline. Shireman and DeVries removed Tipton's coat. Shireman felt around Tipton's belt area and felt nothing that could have been a potential weapon. Shireman testified he never discovered anything that felt of the nature of a weapon. Shireman pulled on the back of Tipton's pants to see if anything was wedged in the waistband.
When Shireman attempted to pull the front of Tipton's waistband, Tipton pulled away and said something about that being his private area. Another officer, Officer Doty, held a hand-cuffed Tipton still while Shireman pulled at Tipton's waistband. Shireman saw a glove sticking out of Tipton's waistband by about an inch. Shireman could not tell whether the glove was in Tipton's underwear or pants. Shireman testified he removed the glove because he “didn't know what the jersey glove contained. I know it's not normal for a Jersey glove to be stuck down.” Shireman testified a glove was not known as a weapon. He further testified he had not felt the area where the glove was found because Tipton “was basically alleging that I was being intrusive to his groin area, so I was trying to be as least intrusive as possible by removing the glove.” Shireman thought there might be an additional weapon in the glove, so he grabbed the glove, pulled it out, and looked inside. Shireman found a plastic bag wrapped in rubber bands inside the palm area of the glove. After removing the rubber bands, he found a chunky, off-white substance inside the plastic bag. He believed it was methamphetamine. Shireman placed Tipton under arrest.
At the evidentiary hearing, defense counsel argued this was an improper Terry stop. The trial court, however, seemed to find that the search was a proper search based on probable cause plus exigent circumstances and appeared to attempt to get the parties to analyze this as a probable cause search:
“THE COURT: Is your position, Mr. Buck [the prosecutor], that there really, even though we talk about a Terry stop here, that based upon the information the officers had, they had the right to actually do any more complete search than maybe the Terry stop would have allowed?
“MR. BUCK: You mean more than what they actually did?
“THE COURT: Well, you know, I mean, as I understand the evidence, which is not rebutted, is that not only did they have the defendant coming from a house where they'd had drug activity, they had somebody in that house saying that Mr. Tipton was going to have methamphetamine on him if he came back and that's when that stop occurred. So, what do the officers have to do to be able to search for drugs?
“MR. BUCK: That may have been enough....
“THE COURT: ... Based on the evidence they have and the exigent circumstances. I mean, you can't necessarily get a search warrant for somebody walking down the street, even though you may have evidence, because of the nature of the mobility of an individual.
MR. BUCK: Yeah, I think some of those cases are cited in the defense motion, but those things involve searches of houses and vehicles and things like that.”
The court appeared to be trying to decide which exception to the Fourth Amendment to the United States Constitution was applicable here. The court also included defense counsel in the conversation, again seeming to view this as something other than a Terry stop. The court also inquired of defense counsel which facts were important for examining whether this was a proper search and whether certain facts corroborated Ming's information:
“THE COURT: It's a close case. I'm trying to figure out where I should go with this.... [M]y question is: Is there case law that says that you can't search a person for methamphetamine under those circumstances or what circumstances do you need to get to be able to search somebody with that kind of information?
“MR. DEAN [Defense Counsel]: Well, I think what, in my opinion, and what I was getting to on arguing that particular issue is, I don't think just simply a tip is what's basically been alluded to here would be sufficient. I think there's got to be something to attempt to corroborate. The officer testified—well, the only officer testified about any discussion with Ms. Ming.
“THE COURT: So, are you telling me that prior history of the residence, prior history of Mr. Tipton, ... is not corroboration?
“MR. DEAN: I don't know how prior history can corroborate
“_[C]an I touch on a few?
“THE COURT: Sure. You got to convince me you're right, so I got to listen to you.”
Defense counsel argued the information Davis had received from Ming was not reliable enough to justify searching Tipton for methamphetamine because the information was not exactly corroborated, Davis did not research Ming's credibility, Shireman did not see where Tipton came from prior to stopping him in the alley, and Tipton had no involvement in the prior drug activity at 331 East Street.
After both parties finished arguments, the trial court made its factual findings on the record: (1) Davis saw Tipton leaving the house on 331 East Street; (2) Davis watched that house because of prior drug activity, including a drug related search warrant he had executed there and one of the residents who was on probation for a drug related offense; (3) Davis followed Tipton; (4) Davis researched Tipton in an effort to identify him; (5) Davis discovered Tipton was on parole; (6) Ming told Davis that Tipton was expected to return to the house with methamphetamine; (7) Davis conveyed this information to Shireman; (8) Shireman and another officer watched the premises; and (9) they saw Tipton return to 331 East Street on a bicycle, which confirmed Ming's statement.
The trial court next articulated its findings regarding Shireman's knowledge at the time he stopped Tipton. The court found Shireman knew: (1) Tipton's identity; (2) Tipton was on parole for drug charges; (3) Tipton had been at 331 East Street, a house associated with drug activity; (4) a woman on probation for drug activity lived at 331 East Street; (5) Ming had communicated to Davis that Tipton would have methamphetamine on him.
However, the trial court's basis for denying the motion is murky because its language is imprecise. The court seemed to find probable cause plus exigent circumstances but, because the parties argued Terry, the court used the language relative to a Terry stop. The court found that there was “at least a reasonable suspicion that [Tipton] was coming back to that location.” The judge then stated:
“[W]e have all these factors, which I believe would create a probable cause to obtain a search warrant if you were searching for a house or searching, you know, for some specific location, but obviously, this is a gentleman walking down the street or riding a bike down the street, so you don't have an opportunity to get that search warrant to search an individual. And under those circumstances and under the facts and knowledge of the officers and based upon the fact that he was also on [parole] for drug offenses, the Court certainly believes that there was sufficient evidence to do that pat-down search. And in that pat-down search, drugs were located, so I'm going to deny the motion to suppress.”
On May 3, 2013, Tipton had a bench trial. Though the facts were materially undisputed, Detective Davis and Shireman again testified. Their testimony was substantially similar to their previous testimony. The trial court found Tipton guilty. Tipton received a 20–month prison sentence. Tipton timely appealed. Additional facts are included below as necessary.
Jurisdiction
Tipton properly preserved the issue for appeal. When the district court has denied a motion to suppress evidence, the moving party must object to the introduction of that evidence at trial to preserve the issue for appeal. State v. Stevens, 285 Kan. 307, 326, 172 P.3d 570 (2007) overruled on other grounds by State v. Ahrens, 296 Kan. 151, 290 P.3d 629 (2012). A clear statement to the court that there is a continuing objection to the evidence sufficiently preserves the issue. State v. Abbott, 31 Kan.App.2d 706, 711, 71 P.3d 1173 (2003), aff'd 277 Kan. 161, 83 P.3d 794 (2004). The State argues Tipton did not specifically raise the issue of the search of the glove at the motion to suppress or at trial. Here, Tipton's motion to suppress moved to suppress the “methamphetamine inside a glove in the Defendant's waist band.” At trial, defense counsel requested a continuing objection “based upon the same arguments previously presented to this Court in the motion to suppress hearing.” Specifically, defense counsel requested the continuing objection to “anything further found, based upon the description of ‘starting to search the waistband,’ “ Additionally, the court noted in its journal entry: “[T]he defendant renews his objection to the admissibility of evidence seized from his person by officers....” Therefore, the issues raised by Tipton concerning the denial of his suppression motion are properly before us.
Standard of Review
When determining whether a trial court properly suppressed evidence during a warrantless search, an appellate court normally gives deference to the factual findings of the district court. However, when the material facts are not in dispute of a decision on a motion to suppress evidence is a question of law requiring independent appellate determination. See State v. Julian, 300 Kan., 333 P.3d 172, 174 (2014).
Analysis
Applying the law to the facts of this case is complicated by the ambiguities in the in the record. The parties argued on the basis of a Terry stop. The court seemed to view the search as one justified by probable cause plus exigent circumstances; however, the court's findings supporting its denial of the motion are imprecise. The court seemed to view the facts as supporting a finding of probable cause plus exigent circumstances, but used the language of a Terry analysis. When the court pressed both parties to address the probable cause plus exigent circumstances, the parties failed to squarely address the court's questioning and therefore failed to discuss in any depth how the facts applied to examining whether the search was legal on the basis of probable cause plus exigent circumstances. On appeal, Tipton continues to argue the stop was an unlawful Terry stop. However, the State argues the court properly determined there was probable cause to search plus exigent circumstances applied. Neither party directly addresses the other's argument. We are tasked with determining whether the trial court properly denied the motion. Regardless of which exception the court below applied, we can affirm the decision if it was the right one, even if for the wrong reason. State v. Vasquez, 287 Kan. 40, 59, 194 P.3d 563 (2008).
Fourth Amendment Protections
Both the Fourth Amendment of the United States Constitution and § 15 of the Kansas Constitution Bill of Rights grant individuals the right to be free from unreasonable searches and seizures of their person and property. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The State carries the burden to prove that a search or seizure was lawful. State v. McGinnis, 290 Kan. 547, 551, 233 P.3d 246 (2010). On appeal, Tipton briefly argues the trial court improperly placed the burden on him to establish the search was illegal, as opposed to requiring the State to prove the search was lawful. The record instead indicates that the trial court told defense counsel, “You got to convince me you're right, so I got to listen to you” in the context of whether the prior history of Tipton and 331 East Street corroborated Ming's information. Viewing the transcript as whole, in spite of the statement, the court does not appear to have improperly placed the burden on Tipton.
A warrantless search is per se unreasonable unless one of the specially established exceptions applies. State v. Sanchez–Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012). The recognized exceptions are “ ‘consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view or feel; and administrative searches of closely regulated businesses.’ “ 294 Kan. at 55.
We will focus on the trial court's findings concerning there being probable cause and exigent circumstances. We will not address the issue of whether there was a valid Terry stop.
A warrantless search is permitted when there is probable cause for the search plus exigent circumstances. See State v. Rupnick, 280 Kan. 720, 727–29 125 P.3d 541 (2005). The State argues probable cause plus exigent circumstances existed, justifying the warrantless search of Tipton.
To analyze this, we must first consider whether probable cause existed and then whether exigent circumstances existed.
Determining whether probable cause exists does not require a rigid application of factors. Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20–21, 290 P.3d 555 (2012). A probable cause determination instead depends on the totality of the circumstances. State v. Ramirez, 278 Kan. 402, 407, 100 P.3d 94 (2004). The totality of the circumstances is an objective test that should be viewed through the lens of an objectively reasonable police officer. 278 Kan. at 407. Our Supreme Court has defined the probable cause necessary to justify a warrantless search as
“ ‘a reasonable ground for belief of guilt; and this means less than evidence which would justify condemnation of conviction; probable cause exists where the facts and circumstances within the knowledge of the officer making the arrest or search, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable causation in the belief that an offense has been committed.’ [Citations omitted.]” State v. Fewell, 286 Kan. 370, 377, 184 P.3d 903 (2008).
Probable cause, therefore, “ ‘ “is the reasonable belief that a specific crime has been committed and that the defendant committed the crime.” ‘ “ 286 Kan. at 377 (quoting State v. Aikins, 261 Kan. 346, 355, 932 P.2d 408 [1997], disapproved in part on other grounds by State v. Warrior, 294 Kan. 484, 277 P.3d 1111 [2012] ). We must look to the specific circumstances of this case to determine if probable cause existed.
Officers learned from Ming that Tipton would return to her home with drugs. The use of informants can be an acceptable method of establishing probable cause. See Aguilar v. Texas, 378 U.S. 108, 113–14, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Our Supreme Court has analyzed the reliability of informant tips. State v. Slater, 267 Kan. 694, 986 P.2d 1038 (1999). A tip from an identified citizen-informant, someone whose identity and location are known, is “high on the reliability scale” because the informant is “exposed to possible criminal and civil prosecution if the report is false.” 267 Kan. at 700–01. Because this type of informant can be held accountable for the information provided to officers, the information is generally found to be reliable when determining whether probable cause exists. See State v. Hendricks, 31 Kan.App.2d 138, 143, 61 P.3d 722 (2003).
Though the State below failed to argue probable cause plus exigent circumstances directly, the trial court found the officers had probable cause to believe Tipton was engaged in criminal activity. Again, the court stated:
“[W]e have all these factors, which I believe would create a probable cause to obtain a search warrant if you were searching for a house or searching, you know, for some specific location, but obviously, this is a gentleman walking down the street or riding a bike down the street, so you don't have an opportunity to get that search warrant to search an individual. And under those circumstances and under the facts and knowledge of the officers and based upon the fact that he was also on [parole] for drug offenses ..., the Court certainly believes that there was sufficient evidence to do that pat-down search.”
Even though the case was argued as a Terry stop, our analysis of the facts of record indicates the officers had probable cause for the search.
First, Tipton was observed by officers leaving a house that had a history of drug activity, including methamphetamine distribution.
Second, Ming, who lived 331 East St. and was present when Tipton was there, told officers Tipton would return shortly to the house with methamphetamine. Because Ming lived at the house and was there the morning Tipton was seen there, she clearly had personal knowledge of the information she relayed to Davis. Also, she predicted with accuracy that Tipton would be returning to her house soon—he returned within 11/2 hours of Davis first seeing him leave 331 East Street. The accuracy of Ming's information suggests she was privy to truthful information about Tipton and his activities. Also, as an identified informer, Ming's information should be considered “high on the reliable scale.” See Slater, 267 Kan. at 700. Collectively, this leads to a reasonable belief that Ming's assertion that Tipton would return soon while in possession of methamphetamine shortly would also be true.
Third, Davis independently verified Ming's information. He had seen Tipton's face as Tipton first left 331 East Street and then researched his name, confirming the man he had seen was Tipton.
Fourth, Davis had personal knowledge of Tipton's prior involvement with narcotics and discovered Tipton was on parole for a previous drug charge.
Each factor alone may not provide sufficient reasonable grounds; however, examining the facts as a whole leads to the conclusion that probable cause to believe Tipton would have methamphetamines in his possession existed. See Aguilar, 378 U.S. at 113–14 (the use of informants can be an acceptable method of establishing probable cause); State v. Ruff, 266 Kan. 27, 38–39, 967 P.2d 742 (1998) (Kansas Supreme Court permitting the use of criminal history to establish probable cause) disapproved in part on other grounds by State v. Weaver, 276 Kan. 504, 78 P.3d 397 (2003); State v. Cook, 38 Kan.App.2d 20, 24–25, 161 P.3d 779 (presence in a high-crime area may be considered with other factors when evaluating probable cause), rev. denied 285 Kan. 1175 (2007). Considering the totality of the circumstances, a reasonably prudent officer, based on sufficiently truthful information, would believe Tipton would have methamphetamine in his possesssion. Therefore, the law enforcement officers here had probable cause to believe Tipton would be returning to the 331 East Street with methamphetamine on him.
Finding probable cause existed is not the end of the analysis. We must next examine whether exigent circumstances existed to justify the warrantless search.
Because the State did not argue for exigent circumstances below, some facts that would have been helpful were never discussed. The trial court discussed exigent circumstances, but it is unclear which exception to the Fourth Amendment it actually relied on when denying Tipton's motion. The judgment of the trial court will not be reversed if it is right, albeit for the wrong reason. State v. Bryant, 272 Kan. 1204, 1210, 38 P.3d 661 (2002). Determining whether exigent circumstances existed involves analyzing the totality of the circumstances.
A warrantless search of a person is permissible where there is probable cause for the search and exigent circumstances justify an immediate search. State v. Houze, 23 Kan.App.2d 336, Syl. ¶ 930 P.2d 620, rev. denied 261 Kan. 1088 (1997). “[A] warrantless search is potentially reasonable because ‘there is compelling need for official action and no time to secure a warrant.’ “ Missouri v. McNeely, 569 U.S. ––––, 133 S.Ct. 1552, 1559, 185 L.Ed.2d 696 (2013) (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 [1978] ). “[T]here is no immutable list of exigent circumstances.” United States v. Struckman, 603 F.3d 731, 743 (9th Cir.2010).
One type of exigency includes circumstances in which an officer “ ‘ “reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband.” ‘ “ Sanchez–Loredo, 294 Kan. at 56. Like probable cause, this determination depends on the facts. See Fewell, 286 Kan. at 384.
“To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, [the United States Supreme Court] looks to the totality of circumstances.” McNeely, 133 S.Ct. at 1559.The United States Supreme Court applies the totality of the circumstances approach because, without the traditional justification for police action that a warrant provides, “ ‘the fact-specific nature of the reasonableness inquiry,’ [citation omitted] demands that we evaluate each case of alleged exigency based ‘on its own facts and circumstances.’ [Citation omitted.]” 133 S.Ct. at 1559. When making this determination, Kansas courts have often considered the following factors when making the determination of whether exigent circumstances existed:
‘ “(1) The time needed to secure a search warrant; (2) the reasonableness of the officers' belief the evidence may be immediately lost; (3) potential danger to the officers guarding the site while awaiting a warrant; (4) whether those persons with possession of the evidence are aware of the officers' presence; and (5) the ease with which the evidence might be destroyed or hidden.’ “ [Citation omitted.] State v. Keenan, 50 Kan.App.2d 358, 369, 325 P.3d 1192 (2014) (quoting State v. Dugan, 47 Kan.App.2d 581, 605, 276 P.3d 819 [2012] ).
“When there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.” Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973) (In a situation in which contraband is changing hands or a crime is being perpetrated the probable cause for an arrest might justify the seizure of evidence or instruments of crime without a warrant.).
Here, in denying the motion to suppress, the trial court essentially found the officers would have had probable cause for a warrant ant that exigent circumstances existed. The court's reasoning can be determined from bench comments made towards the end of the hearing. The court noted the “evidence [the officers had] and the exigent circumstances ... because of the nature of the mobility of an individual.” The court seemed to find the evidence would have been lost or destroyed had Tipton been able to proceed on his bicycle and it would not have been reasonable to require the officers to seek a search warrant under the circumstances facing them on the street. Specifically, the judge stated:
“[W]e have all these factors, which I believe would create a probable cause to obtain a search warrant if you were searching for a house or searching, you know, for some specific location, but obviously, this is a gentleman walking down the street or riding a bike down the street, so you don't have an opportunity to get that search warrant to search an individual.”
The trial judge found exigent circumstances existed on undisputed evidence, “[b]ased on the evidence they [the officers] have and the exigent circumstances. I mean, you can't necessarily get a search warrant for somebody walking down the street, even though you may have evidence, because of the nature of the mobility of an individual” The inference to be made from this is the evidence, the drugs, would most likely have been lost or destroyed had Tipton been able to proceed on his bicycle or into the house—0a house known for drug activity—and it would not have been reasonable to require the officers to seek a search warrant under the exigent circumstances facing them on the street. See Illinois v. McArthur, 531 U.S. 326, 331–32, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (warrantless search upheld when police, who had probable cause to believe suspects home contained evidence of unlawful drugs, denied suspect access to his trailer home while they applied for a search warrant); United States v. Santana, 427 U.S. 38, 42–43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) (Realistic expectation for narcotics officer to believe suspect would try to dispose of illegal drugs on the premises); Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (warrantless search upheld in situation where suspect has control over easily disposable evidence); but see State v. Platten, 225 Kan. 764, 769–71, 594 P.2d 201 (1979) (warrantless entry into home not justified when officers knew suspect was located within the home in possession of drugs and could have easily destroyed the evidence).
The decision in Houze—a factually similar case—is an instructive place to begin an analysis of the facts in this case. The Houze court found probable cause plus exigent circumstances justified a warrantless search of a man on foot. 23 Kan.App.2d at 337–41. On the basis of an informant's tip, police searched Houze as he walked from his car towards a residence. They searched him without a warrant and found cocaine in his possession. The officer testified he had probable cause to believe Houze was in possession of crack cocaine, and Houze was searched due to the circumstances. Also, the officers testified that safety concerns were important in determining that Houze should be immediately searched, including the possibility that he might be armed based on the officer's prior experience with drug crimes and the fact that a group of people came out of the house to ask the officers what they were doing. The Houze court affirmed the district court's finding that the drugs “would most likely have been lost or destroyed had Houze been able to proceed to his destination and it would not have been reasonable to require the officers to seek a search warrant under the circumstances facing them on the street.” 23 Kan.App.2d at 340. The Houze court held: (1) The warrantless search of defendant's person was supported by probable cause based on informant's tip and verification of details of that tip; and (2) exigent circumstances supported immediate warrantless search of defendant's person. See 23 Kan.App.2d at 338–41.
Here, as in Houze, the officers approached Tipton on a bicycle. They had probable cause to believe he was in possession of drugs. It was a “now or never” situation because the evidence would have been lost, destroyed, or concealed but for the officer's search of Tipton. See Roaden, 413 U.S. at 506. This left no time for them to obtain a warrant as Tipton was steps away from entering Ming's home and right next to his bicycle, leaving him free to proceed with the evidence. A reasonable officer in Shireman's position would believe there was a threat of imminent loss, destruction, or concealment of the drugs if Tipton was not immediately searched.
There are additional factors courts often consider when determining if exigent circumstances existed to justify a warrantless search. See Keenan, 50 Kan.App.2d 368–69. Though the factors were not directly addressed below, we can make inferences based on the evidence presented and the judge's comments from the bench. The prosecution presented no evidence about the time likely needed to obtain a warrant or any special obstacles in doing so in this case. We know that only 11/2 hours lapsed between when Davis first saw Tipton and when Shireman made contact with him. In that time Davis was contacting Ming on the phone, researching Tipton, following up with Ming in person, and relaying the findings of his investigation to Shireman and DeVries. Shireman did not testify that he believed evidence would be lost if officers waited to get a warrant. However, in a situation like this in which Tipton had control over easily disposable evidence, a warrantless search could be justified. We do know Tipton presented no particular danger to the officers or the public—officers testified he was compliant with them and he had no history of violence. Tipton, however, was aware of the officers' presence.
Therefore, when considering the list of factors in this case, we note the following factors support a finding of exigent circumstances: (1) Tipton was aware of the officers' presence; (2) a small amount of drugs could easily be easily lost, destroyed, or concealed; and (3) the likelihood of drugs being lost, destroyed, or concealed had Tipton been allowed to proceed into 331 East street was high. The factor that best supports a finding against exigent circumstances is that Tipton presented no real danger to the officers. The final factor—time to obtain a warrant—was not addressed on the record below, so we will not guess how long that might have taken.
Considering the totality of the circumstances, the warrantless search was proper. Based on the specific facts in this case, the circumstances in which Shireman and DeVries came upon Tipton presented a need for official action. Law enforcement officers had probable cause to believe that evidence would be located on Tipton and there were exigent circumstances supporting a probable loss, destruction, or concealment of evidence if they waited for a search warrant to be executed prior to searching Tipton. Although the State tried to defend this as a proper Terry stop, and the trial court may have denied the motion on that basis, we are upholding the denial of the suppression motion based on the officers had probable cause to believe Tipton would have methamphetamines when he returned to 331 East Street and the officers' need to act immediately or risk the loss, destruction, or concealment of the evidence based on the exigent circumstances. The trial court did not err in denying Tipton's motion to suppress.
Affirmed