Opinion
No. 108,311.
2013-11-8
STATE of Kansas, Appellee, v. Andrey L. WHEELER, Appellant.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge. Reid T. Nelson, of Capital/Conflicts Appellate Defender Office, for appellant. Boyd K. Isherwood, chief attorney, appellate division, Marc Bennett, district attorney, Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Reid T. Nelson, of Capital/Conflicts Appellate Defender Office, for appellant. Boyd K. Isherwood, chief attorney, appellate division, Marc Bennett, district attorney, Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Andrey L. Wheeler appeals his convictions for possession of a controlled substance and no tax stamp. He contends the district court erred in not suppressing the evidence of the controlled substance. Specifically, he argues the arresting officer's search of his pockets was not incident to a lawful arrest, nor did he validly consent to the search. We conclude the search was, indeed, incident to a lawful arrest and affirm.
The facts begin when Officers Christopher Marceau and Jared Henry stopped Wheeler after they saw him cross a street without using the crosswalk in an area known for violent crimes, drugs, and gang activity. The officers were familiar with Wheeler because they had received a complaint about him within the last year and he was listed in their database as a gang member and violent offender.
When Wheeler saw the officers, he immediately put his right hand into his pocket. For safety reasons, the officers told Wheeler to remove his hand from the pocket and Officer Marceau assisted him in doing so. Based on his knowledge of the area and of Wheeler, Officer Marceau determined he needed to do a pat-down search of Wheeler.
While the officers were attempting the pat-down search, Wheeler refused to keep his hands on his head and he kept bringing them down to his side. After two unsuccessful attempts at a pat-down search, Officer Marceau placed Wheeler in handcuffs. The officer did not feel anything that felt like a weapon in Wheeler's pockets during the pat-down search.
After placing Wheeler in handcuffs, Officer Marceau asked him if he could search his pockets. Wheeler replied, “Yeah, I ain't got shit.” Officer Marceau then searched Wheeler's pockets and found cocaine.
The State charged Wheeler with possession of a controlled substance and no drug tax stamp.
Before trial, Wheeler moved to suppress the cocaine evidence, arguing that his consent to the search was involuntary and the pat-down search was illegal. After a hearing on the motion, the district court denied the motion and found (1) the stop was valid; (2) the attempt at a pat-down was reasonable under the circumstances; and (3) the search of Wheeler's pocket was lawful as a search incident to arrest.
A jury convicted Wheeler of both charges, and he was sentenced to 20 months in prison. Wheeler timely appeals.
As we stated, Wheeler argues on appeal that the district court erred in denying his motion to suppress the cocaine evidence for two reasons: (1) the search was not a valid search incident to arrest; and (2) Wheeler's consent to search was involuntary.
The Fourth Amendment to the United States Constitution guarantees the right to be free from unreasonable searches and seizures. Kansas courts interpret § 15 of the Kansas Constitution Bill of Rights, which specifically addresses searches and seizures, as providing the same protection. State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010), cert. denied131 S.Ct. 2114 (2011). Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. 291 Kan. at 496. One of those exceptions is a search incident to a lawful arrest. State v. Fitzgerald, 286 Kan. 1124, 1127, 192 P.3d 171 (2008). The State bears the burden of proving the lawfulness of the search and seizure by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008).
On appeal, Wheeler does not challenge his initial stop or the officers' determination to perform a pat-down search for safety reasons. Thus, we will first address whether the search of Wheeler was a valid search incident to arrest. To answer this question, we must determine whether there was probable cause to arrest Wheeler. If there was, the consent issue is then moot.
In finding that Wheeler's failure to comply with Officer Marceau's orders provided probable cause to arrest Wheeler for resisting arrest or for obstruction, the district judge stated:
“But during this process, of hands going up and down and up and down, the officers start a pat down search, don't get far enough, when the defendant brings his hands back down, and in direct violation of a command by a uniformed law enforcement officer. That is a violation of law that would justify an arrest for resisting arrest, possible [ sic ] obstruct[ing] legal process. But I didn't read that statute. But certainly it's resisting the commands of a law enforcement officer or resist arrest. He was placed under arrest at that time and cuffed. And there is the beginning of a search. Then we have consent.
“So my ruling is that this search was incident to an arrest. And every action up to that point was justified legally based upon the facts presented.”
Without reweighing the evidence, an appellate court reviews the factual underpinnings of a district court's suppression ruling under a substantial competent evidence standard and then reviews its ultimate legal conclusion de novo. State v. Jefferson, 297 Kan. ––––, 310 P.3d ––––, (No. 98,742, 2013 WL 4767181, filed September 6,2013).
We first note the definition of the crime of obstruction. K.S.A. 21–3808 states that a person commits that offense by “obstructing, resisting, or opposing any person authorized by law to serve process in the service ... or in the discharge of any official duty.” In State v. Merrifield, 180 Kan. 267, 270, 303 P.2d 155 (1956), our Supreme Court explained:
“The statute does not limit the offense to resistance alone. It includes also willful acts of obstruction or opposition, and to obstruct is to interpose obstacles or impediments, to hinder, impede or in any manner interrupt or prevent, and this term does not necessarily imply the employment of direct force, or the exercise of direct means. It includes any passive, indirect or circuitous impediments to the service or execution of process; such as hindering or preventing an officer....”
As to his argument the search was not incident to an arrest, Wheeler maintains he was not under arrest when the officer searched him even though he was in handcuffs. He argues the officer placed him in handcuffs for detention purposes and had not placed him under arrest. He further argues that no jurisdiction charged him with resisting arrest, obstruction, or jaywalking so there was no valid reason to place him under arrest when the search occurred. Additionally, he argues that at the time the handcuffs were applied, it is doubtful the officers intended a full custodial arrest.
Wheeler relies on State v. Schmitter, 23 Kan.App.2d 547, 933 P.2d 762 (1997). There, law officers pulled over a car in which the defendant was a passenger for failure to use a turn signal. Neither the defendant nor the driver wore seatbelts. The officers asked the defendant for some identification, and the defendant denied having any. An officer eventually performed a pat-down and a search during which the officer found drugs on the defendant. The defendant challenged the district court's denial of his motion to suppress arguing that the search was illegal. The officer who performed the search testified that he was not concerned with his safety and that he searched the defendant to find some form of identification.
The Schmitter court noted that although the record did not show exactly when the defendant was placed under arrest, it did show that the officer did not arrest the defendant before he conducted the pat-down and the search which produced the crack cocaine. Additionally, it noted that there was no testimony in the record that the officer ever intended to place the defendant under arrest. 23 Kan.App.2d at 554. In fact, the officer testified that but for the discovery of the cocaine, he would have either issued a warning or a citation. Based on these facts, the court held there was no indication that this was a search incident to a lawful arrest as there was no arrest before the search. The Schmitter court stated: “It is apparent that the officer had no intention of arresting Schmitter for failure to wear a seat belt and decided to arrest him only after finding the cocaine. This was not a valid search incident to an arrest.” 23 Kan.App.2d at 555.
The facts in the present case, easily distinguish themselves from those in Schmitter. First, and most importantly, Officer Marceau testified he had placed Wheeler under arrest for resisting his orders before he searched Wheeler. Also, Officer Marceau testified he had performed the pat-down search for safety reasons. The district court held the pat-down search was justified based on the circumstances and Wheeler's actions in resisting Officer Marceau's orders justified placing him under arrest for resisting the officers. In Schmitter, there was no evidence the defendant had resisted or obstructed the officers or had done anything else that provided the officers with a reason to arrest him prior to the search.
We find the case of State v. Beltran, 48 Kan.App.2d 857 300 P.3d 92 (2013), petition for rev. filed June 3, 2013 instructive and persuasive. There, during the execution of a search warrant, an officer told the defendant to stop and remove his hand from his pocket. The defendant ignored the officer's commands so the officer physically removed defendant's hand from his pocket. The officer then reached into the defendant's pocket and found two bags of cocaine. The officer testified he had not seen the defendant commit a crime and he had not placed the defendant under arrest before searching him. The Beltran court held the search was, nevertheless, valid as incident to an arrest because an objectively reasonable officer would have had probable cause to arrest the defendant for obstruction. 48 Kan.App.2d at 876–78. The court stated: “Because the Fourth Amendment measures the reasonableness of searches and seizures using that objective standard, the search of [the defendant] was proper even though [the officer] did not subjectively intend to search him for that reason.” 48 Kan.App. at 876.
Here, Officer Marceau testified he actually did arrest Wheeler for resisting his lawful commands which amounted to obstruction. This provides an even stronger reason to deny suppression than was present in Beltran.
We conclude that substantial evidence in this case supports the district court's findings of fact. The undisputed facts reveal that Officer Marceau clearly announced his status as a police officer—something that was also obvious from his dress, badge, and patrol car—and his purpose in performing a pat-down search of Wheeler. As explained earlier, to commit obstruction, an individual must in some way materially oppose or impede the officer in carrying out an official duty, here the pat-down search. Wheeler's refusal to keep his hands on his head to allow Officer Marceau to perform the pat-down search was enough. Officer Marceau further testified as follows:
“Q. [Prosecutor:] Now, Officer Marceau, when you placed handcuffs on Mr. Wheeler, was he under arrest at that point?
“A. [Officer Marceau:] Yes.
“Q. Why?
“A. Because he was not following our instructions to keep his hands on his head.
“Q. He was resisting?
“A. Yes.
....
“Q. Are you able to then perform the pat down of him?
“A. Well, at that point, he was under arrest. And I asked him if I could search his person. He stated that—he stated, quote, Yeah, I ain't [ sic ]got shit, is what he said. And I searched his person, and I located some currency in his left pocket of his shorts as well as some drugs.
....
“Q. Okay. And that's when he was arrested. And then you did a search of his person?
“A. Yeah, after he was arrested.”
We further conclude that, in light of Wheeler's actions, an objectively reasonable officer standing where Officer Marceau stood would have had probable cause to arrest Wheeler for obstruction in violation of K.S.A. 21–3808(a). The fact Wheeler was never charged with obstruction, resisting arrest, or jaywalking is immaterial as we know of no legal authority that requires Wheeler be ultimately charged or cited with those crimes before he can be arrested for obstructing the officers' official duty under the facts here. Nor has Wheeler cited us to any. The district court correctly concluded that the search of Wheeler in which Officer Marceau found cocaine was incident to a lawful arrest, and the court properly denied the motion to suppress.
At oral argument, the State conceded that Wheeler's consent to search was not voluntarily given because his freedom was restricted at the time. However, in light of our ruling above, this issue is rendered moot, and we will not address it further.
Affirmed.