Opinion
No. 106,110.
2012-09-28
STATE of Kansas, Appellee, v. Roy TUEL, Appellant.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. David Lowden, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. David Lowden, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., STANDRIDGE and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Roy Tuel was convicted of criminal possession of a firearm. On appeal, he argues that the district court should have granted his motion to suppress the gun police found inside his car and the statements he made to police regarding the gun after it was discovered. For the reasons stated below, we affirm the district court's decision to deny Tuel's motion.
Facts
At around 3:50 a.m. on December 14, 2009, Wichita Police Department Officer Kevin Kurtz was driving through a residential area in Wichita when he saw a Ford Taurus and decided to run the car's tag number. After discovering the tag number was not registered to any vehicle, he activated his emergency lights and pulled the Taurus over. Kurtz got out of his patrol vehicle and approached the driver's side of the Taurus. Before Kurtz could say anything, Tuel, the driver of the Taurus, acknowledged that he knew the vehicle tag on the Taurus was illegal. Kurtz asked Tuel for his driver's license and, in response, Tuel handed him an expired license. Tuel admitted to Kurtz that the Taurus was not insured and that the tags for the car had expired. Kurtz walked back to his patrol vehicle and ran a search based on the information Tuel provided.
As Kurtz was running Tuel's information, Officer Shannon Dunkel arrived at the scene to assist Kurtz with the traffic stop. After Kurtz discovered an outstanding bench warrant for Tuel's arrest, Kurtz and Dunkel approached the Taurus. Kurtz walked to the driver's side, and Dunkel walked to the passenger side. Dunkel looked on as Kurtz asked Tuel to exit the vehicle, handcuffed him, and then placed him under arrest. Kurtz walked Tuel back to the patrol car, and Dunkel followed.
After Kurtz secured Tuel in the back seat, Dunkel walked back to the passenger side of the Taurus, looked through the window, and saw a Laffy Taffy wrapper on the passenger seat that appeared to be folded around a white powdery substance. This caught Dunkel's attention because he knew that Laffy Taffy was not a powdery substance. Dunkel walked back to Kurtz' patrol vehicle and told Kurtz about the wrapper. Both officers then returned to the Taurus and looked through its windows at the wrapper. Kurtz saw white powder (which he estimated consisted of more than a quarter gram) coming out of the Laffy Taffy wrapper. Like Dunkel, Kurtz thought the wrapper with white powder was odd because he also knew Laffy Taffy was not a white powdery substance. Kurtz and Dunkel both testified that they believed the white powder could be some sort of narcotic.
As the officers were looking into the car through its windows, Dunkel also noticed that a clear Quik Trip cup in the center console of the car had, along with some liquid, loose cigar tobacco in it. Dunkel directed Kurtz' attention to the cup, and Kurtz confirmed he also saw tobacco inside the cup. Based on their law enforcement experience and training, both officers were aware that drug users were known to remove tobacco from a cigar in order to fill it with marijuana and smoke it. The officers also were aware that drug users were known to smoke marijuana laced with another drug, like cocaine or methamphetamine.
Based on the Laffy Taffy wrapper folded around the white powdery substance they observed on the passenger seat and the loose tobacco inside the Quik Trip cup they observed in the console, both officers believed illegal drugs were inside the car. Based on this belief, the officers searched the interior of the car for drugs. While searching the car, Dunkel opened up the glove compartment and found an unloaded semiautomatic handgun. Dunkel later discovered that Tuel had a prior felony conviction.
After they were done searching the Taurus, the officers walked back to the patrol vehicle, where Kurtz field tested the white powder. The powder tested negative for cocaine and methamphetamine. While Tuel was still handcuffed and sitting in the backseat, the officers began to discuss where Dunkel found the gun. Hearing the officers' discussion, Tuel said he wanted to explain the gun. The officers responded by telling him they were not ready at this point to ask him any questions. Notwithstanding this response, Tuel continued to talk, explaining that he bought the gun from a pawnshop, the pawnshop ran a background check on him, and he did not think the pawnshop was allowed to sell guns to a person who had a felony conviction,
Later, after Kurtz informed Tuel of his Miranda rights, Tuel told the officers he had purchased the gun from a pawnshop, and he knew the gun was in his car. Tuel explained he was keeping the gun inside his car because he currently was moving from one residence to another.
The State charged Tuel with criminal possession of a firearm. Before trial, Tuel filed a motion to suppress, arguing the search of his vehicle was unconstitutional and as a result the fruits of that search (the gun and the statements he made to police about the gun) had to be suppressed.
The court conducted a hearing on the motion. Officers Kurtz and Dunkel testified to the facts set forth above. Tuel testified that the Laffy Taffy wrapper had been covered up by papers on his passenger seat; thus, the officers would not have been able to see the wrapper looking through the window. Although he denied the presence of any white powdery substance inside his car, he admitted there was a Quik Trip cup in the center console which, in addition to Dr. Pepper, contained loose tobacco from a cigar. Tuel explained he purchased a Black & Mild cigar, which later broke in his pocket. Tuel further explained that he placed some of the tobacco from the broken cigar inside the Quik Trip cup so he could patch the cigar. Tuel disputed the officers' claim that the cup had no lid, explaining that he remembered replacing the lid after putting the tobacco inside in order to keep the liquid from splashing outside the cup into the interior of the car.
Finally, Tuel testified that the officers affirmatively questioned him about the gun for about 5 minutes before Mirandizing him. Tuel told the jury that in response to those questions, he admitted the gun was his and admitted he bought the gun at a pawnshop, but he denied telling the officers that he knew the gun was inside his car. Tuel testified that it was only after his arrest and detention that he discovered his sister was the one who had placed the gun in the glove compartment.
After hearing arguments from the parties, the district court found the officers lawfully looked through the windows of the Taurus to see what was inside the car. The court also found the white powder and the loose tobacco they saw justified the officers' decision to search the car for drugs. Finally, the district court found that opening the glove compartment was reasonable given the officers were searching the car for drugs.
With regard to Tuel's statements, the district court found the statements he made prior to being Mirandized were admissible because, based on the officers' testimony, Tuel made those statements voluntarily and not in response to questioning. The district court also found the statements made by Tuel after being Mirandized were admissible.
Based on all of these findings, the court denied Tuel's motion to suppress. Thereafter, Tuel waived his right to a jury trial and proceeded to a bench trial on stipulated facts while preserving the suppression issue for appeal. Based on the stipulated facts, the district court found Tuel guilty of criminal possession of a firearm.
Analysis
On appeal, Tuel claims the district court erred in denying his motion to suppress the gun that Officers Kurtz and Dunkel found inside his car and the statements he made to the officers regarding the gun. In support of this claim, Tuel argues the State relied solely upon the “plain-view” exception to the warrant requirement to claim the search of the car was constitutional and failed to satisfy its burden to prove the elements required to invoke that exception. Specifically, Tuel argues the plain-view exception was not satisfied under the facts of this case because the “incriminating nature” of the evidence in plain view that led the officers to search the vehicle ( i.e., the white powder coming out of a Laffy Taffy wrapper and the loose tobacco in the Quik Trip cup) was not “immediately apparent.”
When reviewing a district court's decision to deny a motion to suppress, an appellate court reviews the district court's factual findings to see if they are supported by substantial competent evidence. The appellate court then applies a de novo standard of review to the district court's ultimate legal conclusion. State v.. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011).
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights protect individuals from unreasonable searches and seizures by the government. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied131 S.Ct. 2114 (2011). In Kansas, the recognized exceptions to the warrant requirement include 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. State v. Sanchez–Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012).
In State v. Fisher, 283 Kan. 272, 154 P.3d 455 (2007), our Supreme Court recognized two different types of “plain view.” The first type (more accurately designated the “open view doctrine”) refers to the rule that no Fourth Amendment search occurs when a law enforcement officer observes incriminating evidence or unlawful activity from a nonintrusive vantage point. If the evidence or activity observed is within a constitutionally protected area, however, then the officer must first obtain a warrant (unless an exception to the warrant requirement applies) before the officer can enter into the constitutionally protected area and seize the evidence or investigate the activity. 283 Kan. at 292–95.
The second type of “plain view” refers to the rule that when a law enforcement officer has justifiably intruded into a constitutionally protected area and then observes incriminating evidence in plain view, that officer may seize the evidence without first obtaining a warrant. Fisher, 283 Kan. at 293–95. Accordingly, this rule refers to seizures, not searches, under the Fourth Amendment. 283 Kan. 272, Syl. ¶ 7; see also Horton v. California, 496 U.S. 128, 136–37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (Under the plain-view exception, a law enforcement officer may conduct a warrantless seizure of incriminating evidence if: (1) the officer did not violate the Fourth Amendment in arriving at the place where the evidence could be plainly viewed; (2) the incriminating character of the evidence is immediately apparent; and (3) the officer has a lawful right of access to the evidence.).
Here, Tuel's argument confuses the two types of plain view. If Tuel was challenging the officers' seizure of evidence seen in plain view inside his car during an otherwise lawful search of his car, then his argument regarding the incriminating character of this evidence would be relevant to determine whether the seizure of this evidence was constitutional. But Tuel is not challenging the seizure of evidence seen in plain view during an otherwise lawful search of his car. Instead, he is challenging the warrantless search of his car in the first instance. Accordingly, the State was not required to prove the plain-view exception to warrantless seizures in order to justify the constitutional nature of the search.
To that end, our review of the record reveals that the State did not, as Tuel contends, rely on the plain-view exception relating to warrantless seizures to argue that the search of the car's interior was constitutional. At the motion hearing, the State argued the officers had probable cause to search the car for drugs based on the items the officers saw in plain (open) view while standing outside the car. As such, the State's argument justifying the constitutional nature of the search was grounded in the “automobile exception,” which is a subclass of the probable-cause-plus-exigent-circumstances exception to the warrant requirement. See Sanchez–Loredo, 294 Kan. 50, Syl. ¶ 4. Under the automobile exception to the warrant requirement, law enforcement officers may search an automobile, without a warrant, as long as probable cause exists to believe the vehicle contains the fruits, instrumentalities, or evidence of a crime. Sanchez–Loredo, 294 Kan. 50, Syl. ¶ 4. A vehicle's mobility fulfills the requirement of exigent circumstances, “without the necessity of proving anything more.” 294 Kan. 50, Syl. ¶ 4. If probable cause exists to justify the search of a lawfully stopped vehicle, the permissible scope of the search generally extends to “every area of the vehicle and its contents which might reasonably contain the contraband [or object of the search].” State v. Jaso, 231 Kan. 614, Syl. ¶ 5, 648 P.2d 1 (1982).
In State v. Fitzgerald, 286 Kan. 1124, 192 P.3d 171 (2008), abrogated on other grounds by State v. Sanchez–Loredo. 294 Kan. 50, 272 P.3d 34 (2012), our Supreme Court had to determine whether probable cause existed to justify a search of the defendant's truck for drugs. In describing the probable cause standard, the court stated:
“Probable cause is the reasonable belief that a specific crime has been committed and that a specific person committed it. Probable cause exists when the facts and circumstances within a law enforcement officer's knowledge and about which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed. When determining whether probable cause exists, an appellate court considers the totality of the circumstances, including all of the information in the officer's possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt. [Citation omitted.] Evidence of probable cause need not reach the level necessary to prove guilt beyond a reasonable doubt, but it must constitute more than mere suspicion. [Citation omitted.]” Fitzgerald, 286 Kan. at 1128.
See also Sanchez–Loredo, 294 Kan. at 55 (‘ “Probable cause’ to search a vehicle can be established if the totality of the circumstances indicates there is a ‘fair probability’ that the vehicle contains contraband or evidence.”); Fitzgerald, 286 Kan. at 1130 (holding courts should consider an officer's training and experience in determining whether probable cause existed to justify a search).
Having set forth the applicable law, we now consider whether the district court's factual findings are supported by substantial competent evidence and, if so, whether those facts support the district court's ultimate legal conclusion. See Johnson, 293 Kan. at 4. With regard to findings of fact, the district court found that when the officers looked through the windows of the Taurus, they saw a Laffy Taffy candy wrapper surrounded by white powder and a Quik Trip cup with no lid containing liquid and loose tobacco. The district court also found that the statements Tuel made prior to being Mirandized were voluntary and not in response to questioning. With regard to conclusions of law, the court found the officers' actions in looking through the windows of the Taurus to see what was inside the car did not rise to the level of a search, the officers were justified in searching the car for drugs after seeing the white powder and the loose tobacco, and the decision to look in the glove compartment was reasonable given the officers were searching the car for drugs.
Based on our review of the record and the applicable law, we find the factual determinations made by the district court are supported by substantial competent evidence and those facts support the district court's legal conclusion. To that end, both Kurtz and Dunkel testified that after Tuel was arrested and placed in the back of Kurtz' patrol vehicle, they looked through the windows of Tuel's car and saw a white powdery substance coming out of a Laffy Taffy wrapper lying on the front passenger seat of the car. Kurtz estimated that there was more than a quarter of a gram of powder on the seat. Based on their prior experiences with eating Laffy Taffy, both officers knew that Laffy Taffy did not consist of a powdery substance, leading them to believe that the powdery substance was not candy but some sort of narcotic. Kurtz and Dunkel testified that they also saw loose cigar tobacco in a clear Quik Trip cup sitting in the center console of the car. Both officers found this suspicious because, based on their law enforcement experience, they knew it was common practice for drug users to take tobacco out of cigars in order to fill the cigar with marijuana and smoke it. They were also aware that it was common practice for drug users to lace marijuana with another drug before smoking it. Both officers testified that based on the white powder coming out of the Laffy Taffy wrapper and the loose cigar tobacco in the Quik Trip cup, they believed there were illegal drugs inside the car and, for this reason, decided to search the car for drugs.
We find the facts set forth above provided the officers with the probable cause necessary to justify their warrantless search of the Taurus. Observing a white powdery substance, a Laffy Taffy wrapper, and a clear cup with loose tobacco-all clearly visible through a closed window from outside of the car for any passerby to see—is sufficient to warrant a person of reasonable caution to believe the car contained illegal drugs. A reasonable person with the officers' training and experience could infer that the white powder coming out of the Laffy Taffy wrapper was some sort of illegal drug that had been packaged inside the Laffy Taffy wrapper. Furthermore, a reasonable person with the officers' training and experience could infer from the loose cigar tobacco in the Quik Trip cup that Tuel or someone else had removed the tobacco from a cigar for the purpose of refilling the cigar with marijuana-possibly laced with the white powder-and smoking it. Having determined the officers had probable cause to believe the car contained drugs, we necessarily conclude the officers' warrantless search of the car was legally valid under the automobile exception to the warrant requirement. Because the permissible scope of a car search for drugs would naturally extend into any area that might contain drugs, we find the officers' search of the glove compartment also was legally permissible.
Based on the discussion above, we find no error in the district court's decision to deny Tuel's motion to suppress. Before concluding, however, we want to address one final issue raised by Tuel in his brief on appeal. To that end, Tuel argues the district court's decision to deny his motion to suppress must be overturned because the district court applied a reasonable suspicion standard, not a probable cause standard, to determine whether the facts justified a warrantless search. Specifically, Tuel claims the district court concluded as a matter of law that the facts were sufficient to support a reasonable suspicion of illegal drugs in the car but never made a legal finding that the facts supported probable cause to believe there were illegal drugs in the car.
Notably, we find it unnecessary to determine whether the district court did, in fact, apply the wrong legal standard of proof in concluding the facts justified a warrantless search. This is because the appellate court applies a de novo standard of review to the district court's ultimate legal conclusion. Johnson, 293 Kan. at 4. Given we already have determined the district court's finding of facts are supported by substantial competent evidence in the record, we are required to draw our own legal conclusion from those facts-independent from any legal conclusion drawn from those facts by the district court-to determine whether there was probable cause to justify the warrantless search of Tuel's car in this case. We have done so and found that the facts supported probable cause to believe there were illegal drugs in Tuel's car. Although the district court may have applied a reasonable suspicion standard of proof to deny Tuel's motion to suppress, our independent finding of probable cause under the facts presented means the court's decision can still be affirmed on appeal. See State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004) (reason given by district court for its ruling is immaterial if result is correct).
Affirmed.