State v. Ritchey , 56 Kan. App. 2d 530 ( 2018 )

No. 118,905
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellant,
v.
LINDA FAYE RITCHEY,
Appellee.
SYLLABUS BY THE COURT
1.
The Fourth Amendment to the United States Constitution protects everyone's right
to be secure in his or her person and not subject to unreasonable searches by the
government.
2.
A warrantless search is unreasonable unless it falls within one of the recognized
exceptions to the search-warrant requirement. The State has the burden to show that one
of the exceptions applies.
3.
One search-warrant exception covers searches incident to arrest, in which an
officer can search the person arrested and the area within that person's immediate control
without a warrant. That exception does not apply to a purse left behind by the person who
was arrested when the person arrested could no longer gain access to the purse and there's
no possibility that the purse contained evidence of the crime for which the person was
arrested.
4.
Another search-warrant exception is inevitable discovery, which allows the
admission of evidence otherwise unconstitutionally obtained if police eventually would
have found the evidence by lawful means. Here, the State claimed the purse would have
been taken with the arrested person to the jail and then inventoried. But the State did not
show that the exception applied because the evidence was found within a closed billfold
within a closed purse, and the State neither presented evidence that the police department
had a policy of taking purses to the jail for inventory purposes or any policy about the
opening of closed items.
Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed November 2, 2018.
Affirmed.
Rachel L. Pickering, assistant solicitor general, and Derek Schmidt, attorney general, for
appellant.
Sonya L. Strickland, of Kansas Appellate Defender Office, for appellee.
Before LEBEN, P.J., GREEN and MALONE, JJ.
LEBEN, J.: Topeka police officers arrested Linda Ritchey for an outstanding
warrant while she was sitting in the front passenger seat of a parked van. After Ritchey
was arrested, a police officer searched Ritchey's purse, which Ritchey had left in the van,
and found a baggie with methamphetamine residue. Ritchey moved to suppress the
evidence from her purse, arguing that it had been found during an illegal search. The
district court granted the motion.
The State appeals, arguing that the district court shouldn't have suppressed the
evidence because: (1) officers legally searched Ritchey's purse during a valid search
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incident to arrest, one of the recognized exceptions to the requirement that officers have a
search warrant; and (2) even if the search were illegal, officers would have found the
evidence when they processed Ritchey's purse at the police station to hold it in
safekeeping for her. But the officers' search of Ritchey's purse wasn't a valid search
incident to arrest because the purse wasn't on her person, there was no threat that Ritchey
could use any weapons in her purse against the officers, and there was no possibility that
her purse contained evidence of her crime of arrest—having an outstanding warrant.
Likewise, there was no evidence that the police had a policy to take items like her purse
into possession for safekeeping and no evidence that this purse was sent along with her to
the jail, so the State failed to show that items within the closed purse would have
inevitably been discovered. Because the officer searched Ritchey's purse without a
warrant and the search didn't meet any of the exceptions for a warrantless search, the
district court properly suppressed the evidence from the purse. We therefore affirm the
district court's order granting the motion to suppress evidence.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2017, Topeka police officers responded to a report that a group of women,
including defendant Linda Ritchey, might be burglarizing a van in the Academy Sports
parking lot. When officers arrived and found the van, they approached Ritchey, who was
sitting in the front passenger seat of the van smoking a cigarette.
Officer Jake Cobler asked Ritchey if the van belonged to her. Ritchey said that it
belonged to her friends, who were inside the store. Ritchey gave Cobler her identification,
which was in the purse Ritchey was holding while sitting in the van. About six minutes later,
a female officer, Officer Ramirez (whose first name is not in our record), asked Ritchey to
step out of the van. When Ritchey stepped out, Ramirez put Ritchey in handcuffs, explaining
that there was a warrant out for her arrest.
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Once Ritchey was under arrest, Ramirez led Ritchey to the back of the van. Soon
after, but while she was still standing at the back of the van, Cobler began searching
through Ritchey's purse, which was still where she had left it on the front passenger seat.
The baggie was in a pocket inside Ritchey's closed, fold-over wallet, which itself was
inside the purse.
After Ritchey's arrest, the owner of the van showed up and officers determined
there had been no burglary.
The State charged Ritchey with one count of possession of methamphetamine and
one count of unlawful use of drug paraphernalia (the baggie). Ritchey pleaded not guilty
to each count. Ritchey moved to suppress the evidence taken from her purse, claiming the
State obtained its evidence through an illegal search because the officer's "search of [her]
purse . . . d[id] not meet any of the exceptions to the search warrant requirement."
At an evidentiary hearing held to resolve Ritchey's motion, Cobler testified that he
searched Ritchey's purse because he assumed officers would transport the purse to jail
along with Ritchey. The State argued that Cobler legally searched Ritchey's purse as a
search incident to a lawful arrest, a recognized exception to the search-warrant
requirement. The State also argued that even if the search of Ritchey's purse were illegal,
the baggie in it "would have been inevitably found" when officers searched Ritchey's
purse at the jail.
Ritchey's attorney argued that the search of Ritchey's purse was illegal because
"that purse was not within Ms. Ritchey's immediate control at the time of her arrest . . . ."
Ritchey's attorney also argued that a "search incident to arrest is conducted for the purpose
of protecting officers and safeguarding any evidence of the offense of arrest. And I don't
think that the State has put forth any evidence to the Court that . . . would justify the search
incident to arrest either."
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The district court held that the search of Ritchey's purse was neither a search
incident to arrest nor an inventory search:
"In this particular case, there is no discussion whatsoever by the officers among
themselves . . . or with Ms. Ritchey about seeking permission to search the purse. . . . And the
officer said he didn't talk with anybody, it was just his assumption that the purse would go
with her because he believed it was her property. That may have been a valid assumption. . . .
". . . [T]here was discussion about search incident to arrest, which I do not think
applies in this particular situation. Clearly, the purse was on the seat. The defendant was
arrested. There is no testimony that the purse itself was seized. There is some discussion
that it theoretically would have or should have gone with her because it was her
property . . . . But there was no testimony that the officers did seize the purse and that it did
go or should have gone to the jail, although there was some discussion as to what they
usually do.
". . . I'm not sure that the inventory search fits in this particular case other than
whether it would have been an inevitable discovery issue that once she got to the jail and
may have had her purse with her, that the jail would have searched her purse and
theoretically eventually found methamphetamine.
". . . It might have been Ms. Ritchey's decision to leave the purse on the car as she
was arrested. Certainly as she walked away, she did not ask for her purse, did not request that
her purse stay with her. The officers may have made the assumption but she was certainly not
near her purse and she had already been arrested when Ms. Ritchey was escorted away.
Again, there is no evidence that the purse was actually seized in this case. . . .
"So . . . I'm going to suppress the evidence. I believe the search of the purse was
an illegal search in this particular case."
The State then appealed to our court.
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ANALYSIS
The State challenges the district court's order granting Ritchey's motion to suppress
any evidence taken from her purse. Even though that order is not a final judgment
concluding the criminal case against Ritchey, the State is allowed to file an interlocutory
appeal when the district court grants a defense motion to suppress evidence that's significant
to the State's case. See K.S.A. 2017 Supp. 22-3603; State v. Mburu, 51 Kan. App. 2d 266,
270, 346 P.3d 1086 (2015).
We use a two-part standard when reviewing a district court's ruling on a motion to
suppress evidence. First, we ask whether the district court's factual findings are supported by
substantial evidence—that is, evidence that a reasonable person would find adequate to
support a conclusion. Second, we review the district court's ultimate legal conclusions
independently, without owing any required deference to the district court. State v. Patterson,
304 Kan. 272, 274, 371 P.3d 893 (2016).
There really aren't any factual disputes that have been set out in the parties' appellate
briefs, so we can skip over the first part of that test. To the extent that any factual questions
aren't fully answered by the district court's stated factual findings, we presume that the
district court found all the facts required to support its ruling because the State (which lost in
the district court) did not ask the district court to make additional findings. See State v. Dern,
303 Kan. 384, 394, 362 P.3d 566 (2015).
The State first argues that the district court erred in granting Ritchey's motion to
suppress because the officer's search of Ritchey's purse was reasonable as a search
incident to arrest.
The Fourth Amendment to the United States Constitution "protects everyone's right to
be secure in his or her person and not subject to unreasonable searches by the
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government." State v. James, 301 Kan. 898, 908, 349 P.3d 457 (2015). Any warrantless
search is per se unreasonable unless it falls within one of the recognized exceptions to the
search-warrant requirement. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014).
Those exceptions include consent, search incident to lawful arrest, stop and frisk, probable
cause to search accompanied by exigent circumstances, emergency aid, inventory searches,
plain view, and administrative searches of closely regulated businesses. 299 Kan. at 239.
The State carries the burden of proving one of the exceptions applies. State v.
Overman, 301 Kan. 704, 710, 348 P.3d 516 (2015). If no exception applies, a judicially
created remedy called the exclusionary rule usually prevents the State from using
evidence obtained in an illegal search against the victim of the search. State v. Pettay, 299
Kan. 763, 768-69, 326 P.3d 1039 (2014) (citing Illinois v. Krull, 480 U.S. 340, 347, 107
S. Ct. 1160, 94 L. Ed. 2d 364 [1987]).
The State first suggests that, because Ritchey's purse was in her immediate possession
at the time of her arrest, officers could search Ritchey's purse as a search incident to arrest.
Under that exception, when an officer makes a lawful arrest, the officer can search the person
arrested and the area within that person's immediate control without a warrant. Chimel v.
California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Torres, 53
Kan. App. 2d 258, 263, 386 P.3d 532 (2016). This warrant exception exists for two reasons:
it protects officer safety by allowing police to search the area within the immediate control of
the person arrested for weapons that the person could reasonably access and it prevents the
person from destroying or concealing evidence within his or her reach. Chimel, 395 U.S. at
763. Neither of those reasons was served here.
At the preliminary hearing, Cobler said that he didn't search Ritchey's purse for his
protection or to preserve evidence, but because he "just assumed that it was going with her"
to jail. The officer's body-camera video shows that Ritchey placed her purse on the
passenger seat of the van before she stepped out of the van and was arrested. Before
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officers searched Ritchey's purse, Ramirez had arrested Ritchey, had placed her in
handcuffs, and had led her from the front passenger side of the van toward the back of the
van. By the time Cobler searched Ritchey's purse, there was no possibility that Ritchey
could have accessed the purse or anything in it in an effort either to destroy evidence or
resist the officers.
The purse had three compartments, and Cobler began going through them as soon as
Ritchey was taken away. No compartment was zippered shut, but the officer had to open
the enclosure to each compartment to look into it. Cobler had no inventory form and made
no notes while he searched. Instead, he went through each compartment, apparently
looking for contraband.
In the first compartment, he found a closed zippered black case attached to a
keyring. He unzipped it but found nothing, zipped it up, and put it back. In the second
compartment, he found her billfold (or pocketbook), which wasn't latched but was folded
over so that it was closed. Cobler opened it and then went through each section of it,
including a pocket that contained several items, including some cards, some paper, and the
plastic baggie he took. Cobler spent about four minutes carefully going through the purse.
After he had gone through the entire purse, he put it back on the seat and gave the plastic
baggie to another officer.
As we've already noted, there couldn't have been a need to go through the bag for
officer safety—Ritchey had already been handcuffed and led away. And since Ritchey
was arrested for an outstanding warrant, not for committing a new crime, there was no
reasonable possibility that Ritchey's purse contained evidence of the crime for which she
was arrested that officers needed to preserve. See Arizona v. Gant, 556 U.S. 332, 343,
129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) ("[I]n many cases, such as when a recent
occupant is arrested for a traffic violation, there will be no reasonable basis to believe the
vehicle contains relevant evidence."); State v. Reed, No. 113,576, 2015 WL 9287062, at
8
*3 (Kan. App. 2015) (unpublished opinion) (finding that other than the arrestee's driver's
license, the arrestee's wallet didn't contain evidence of the crime of arrest of driving with
a suspended license). Indeed, the State has made no suggestion in the district court or
here that the purse might have contained evidence related to the crime of arrest.
Even so, without addressing the purpose of Cobler's search of Ritchey's purse, the
State still argues that officers were entitled to search Ritchey's purse because a purse is
merely an extension of a person and officers may perform a full search of a person under
arrest. See United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 37 L. Ed. 2d 427(1973) (holding that "in the case of a lawful custodial arrest a full search of the person is
. . . a 'reasonable' search under [the Fourth] Amendment"). In support, the State generally
cites some out-of-state cases that have allowed the search of purses, handbags, or
briefcases when a defendant had the item at or about the time of arrest. See United States v.
Johnson, 846 F.2d 279, 282-84 (5th Cir. 1988) (holding that officers could search a
briefcase within the defendant's reach when he was arrested); United States v. Graham, 638
F.2d 1111, 1113-14 (7th Cir. 1981) (holding that officers could search a shoulder bag
defendant was wearing when arrested); People v. Flores, 100 Cal. App. 3d 221, 230, 160
Cal. Rptr. 839 (1979) (holding that officers could search a shoulder bag at defendant's feet
when arrested); People v. Cregan, 2014 IL 113, 600, 10 N.E.3d 1196, 1202-03 (Ill. 2014)
(holding that officers could search a wheeled suitcase and laundry bag in possession of
train passenger when he departed the train and was arrested); State v. Wynne, 552 N.W.2d
218, 222-23 (Minn. 1996) (holding that officers could not search the purse of a woman
who arrived home while officers were executing a search warrant for the premises; the
purse was considered part of that woman's person and she wasn't named in the search
warrant). But none of those cases are factually similar to ours, in which the defendant had
left her purse behind and been taken away from the vicinity of the purse before an officer
took possession of it.
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The State also cites two Kansas cases, but again, neither has facts much like ours.
The first one is State v. Sabater, 3 Kan. App. 2d 692, 694, 601 P.2d 11 (1979), in which
this court upheld the search of an arrestee's pocketbook, finding that the "pocketbook was
immediately associated with the person of defendant . . . ." But the facts in Sabater are
limited, and there's no indication in the opinion about where the pocketbook was actually
located in relation to Sabater's person when she was arrested. Without that information,
there's no way to analogize that search to the search of Ritchey's purse.
The State also cites State v. Dickerson, No. 92,957, 2005 WL 3289390, at *4
(Kan. App. 2005) (unpublished opinion), which upheld the search of a purse incident to
arrest. But there are two main differences between the facts in Dickerson and those here.
First, Dickerson was arrested for possession of drugs, so the officer who searched her
purse "could have been looking for illicit drugs and drug-related items . . . ." 2005 WL
3289390, at *4. Ritchey, on the other hand, was arrested for an outstanding warrant—a
past crime for which officers couldn't reasonably expect to find evidence in her purse.
Second, the officer in Dickerson searched the purse after "he saw the clear plastic bag of
marijuana in the opened purse," thus invoking the plain-view exception to the warrant
requirement. (Emphasis added.) 2005 WL 3289390, at *4 (citing State v. Galloway, 232
Kan. 87, 89, 652 P.2d 673 [1982]). But here, Ritchey's purse was closed when Cobler
began to search it, so the plain-view exception would not apply.
In our case, the key point is that neither of the justifications for the search-incident-
to-arrest exception to the warrant requirement was served when Cobler searched Ritchey's
purse. Nor was the purse still on her person when she was arrested: Officer Ramirez asked
her to step out of the van and then arrested Ritchey, who had left her purse behind. We
conclude that the search-incident-to-arrest exception didn't apply here. See Gant, 556 U.S.
at 339 ("If there is no possibility that an arrestee could reach into the area that law
enforcement officers seek to search, both justifications for the search-incident-to-arrest
exception are absent and the rule does not apply.").
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Alternatively, the State argues the evidence from Ritchey's purse is admissible
under the inevitable-discovery doctrine. The inevitable-discovery exception allows the
admission of otherwise unconstitutionally obtained evidence if police eventually would
have found that evidence by lawful means. State v. Carr, 54 Kan. App. 2d 780, 793, 406
P.3d 403 (2017) (citing Utah v. Strieff, 579 U.S. __, 136 S. Ct. 2056, 2061, 195 L. Ed. 2d
400 [2016]); see State v. Baker, 306 Kan. 585, 590-91, 395 P.3d 422 (2017). For the
exception to apply, the State must prove that, more likely than not, the evidence would
have inevitably been discovered later by lawful means. Baker, 306 Kan. at 591; see State
v. Lloyd, 52 Kan. App. 2d 780, Syl. ¶ 2, 375 P.3d 1013 (2016).
The State says that officers would have found the evidence as part of an inventory
search when they searched Ritchey's purse at the jail. That assumes, of course, that there was
some sort of policy under which arresting officers took possession of the personal effects of a
person who was arrested so that they could be returned to that person when he or she was
later released. Ritchey counters that the inevitable-discovery doctrine doesn't apply because
the State failed to produce any evidence that a valid inventory search took place. We agree
with Ritchey.
In support of her argument, Ritchey cites our Supreme Court's decision in Baker, 306
Kan. 585. In it, the court held that the inevitable-discovery doctrine didn't apply when
officers "testified that a small bag or backpack would have been 'searched' or 'inventoried' at
the arresting agency or jail[, but] fail[ed] to present any evidence of standardized criteria or
an established routine governing the opening of closed containers during inventory
searches . . . ." 306 Kan. at 592-93. So in Baker, even though officers testified that they
regularly took personal items like purses or small bags into their possession when arresting
someone with such an item, the State had not established any standardized criteria for
opening closed containers within the items. Thus, items that had been found by looking
inside an Nintendo game case and a cell-phone carrier weren't properly subject to the
inventory search.
11
The problem found in Baker is present in our case too. Even if we were to conclude
that the State had presented evidence of a general policy of taking personal items like purses
into law-enforcement possession for safekeeping when arresting the purse's owner, the State
presented no evidence whatsoever of a Topeka Police Department policy about opening the
purse or any containers found within the purse. And here, the contraband was found only
after opening a closed purse, opening a closed billfold, and looking into a pocket within the
billfold. Baker applies: "[P]roducing no evidence of a policy with respect to the opening of
containers—as occurred here—does not pass constitutional muster." 306 Kan. at 594.
Additionally, there's no evidence here that the Topeka Police Department even had a
general policy of taking things like purses into possession when arresting someone or of
doing an inventory of items taken. When asked if it was "a policy of the Topeka Police
Department that if someone is arrested out of a vehicle, that their purse . . . is going to go
with them[,]" Cobler simply said, "It was sitting in her lap. It was her purse. I don't remember
even asking anybody. I just assumed that it was going with her." At no point during the
hearing did the State present any evidence that it was the Topeka Police Department's
standard operating procedure to search all of an arrestee's personal belongings before
transporting the arrestee to jail. Nor did the State present evidence that the purse was taken
with Ritchey to the jail or that, if taken there, a policy was in place to search it there.
Officer Cobler's search certainly was not an inventory search; the video shows no
attempt by Cobler to take an inventory of the purse's contents. Rather, he simply seems to be
rummaging around looking for possible contraband. That's exactly what the Fourth
Amendment prevents:
"'Our view that standardized criteria . . . or established routine . . . must regulate the
opening of containers found during inventory searches is based on the principle that an
inventory search must not be a ruse for a general rummaging in order to discover
incriminating evidence. The policy or practice governing inventory searches should be
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designed to produce an inventory. The individual police officer must not be allowed so much
latitude that inventory searches are turned into "a purposeful and general means of
discovering evidence of a crime."'" Baker, 306 Kan. at 593 (quoting Florida v. Wells, 495
U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 [1990]).
The State still suggests that Baker doesn't control here because that case addressed a
search of a closed container; the State argues that Ritchey's purse should be treated as an
extension of Ritchey's person, not as a closed container. This argument isn't persuasive for
the reasons we've already discussed—Ritchey wasn't in immediate control of her purse
when Officer Ramirez arrested Ritchey or when Officer Cobler searched the purse. At least
on the facts found here, we cannot treat the purse as if it were simply part of her person
when Ritchey was arrested.
Our Supreme Court's rationale in Baker applies. The State failed to present evidence
proving that Cobler's search of Ritchey's purse was standard protocol, that Cobler ever did
an inventory of the purse's contents, or that the purse was taken into police possession to be
returned to Ritchey when she was released from jail. On these facts, the inevitable-
discovery exception does not apply.
Last, the State argues that the district court improperly suppressed the evidence in
Ritchey's purse because suppressing the evidence didn't serve the purpose of the exclusionary
rule. Our Supreme Court has explained that the purpose of the exclusionary rule "is to deter
law enforcement and other government officials and agents from unreasonable intrusions
upon the lives and property of citizens." State v. Smith, 243 Kan. 715, 724, 763 P.2d 632(1988) (citing Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 [1961]); see
State v. Brittingham, 296 Kan. 597, 605, 294 P.3d 263 (2013) (citing Smith). Ritchey
doesn't address this argument on appeal, but we still do not find the State's argument
persuasive.
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The State claims "the rationale behind the exclusionary rule was not met [because
Cobler] testified as to why he was allowed under [the Topeka Police Department's] policy
to search [Ritchey's] purse [and] his actions were not illegal police conduct." The State
provides no caselaw to support its position that a police officer's subjective belief about the
legality of his or her actions is a deciding factor about whether the actions were, in fact,
legal. See State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015) ("The failure to
support a point with authority amounts to an abandonment of the issue."). More
importantly, Baker shows that the exclusionary rule has a real purpose here: having clear
inventory-search policies in place prevents police from merely rummaging through
personal possessions in search of evidence of other crimes. The exclusionary rule's
application in cases like this encourages police departments to do so.
The district court correctly decided that Officer Cobler's search of Ritchey's purse
was an illegal search under the Fourth Amendment. We therefore affirm the district court's
grant of the defendant's motion to suppress evidence.
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