State v. Undorf ( 1972 )


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  • Fromme, J.,

    dissenting: Never before has this court gone so far in upholding what I consider to be an impermissible general exploratory search of an automobile stopped for a routine traffic violation. General exploratory searches are not permissible even *8when made under the prima facie authority of a search warrant. See Go-Bart Co. v. United States, 282 U. S. 344, 75 L. Ed. 374, 51 S. Ct. 153. In Stanford v. Texas, 379 U. S. 476, 13 L. Ed. 2d 431, 85 S. Ct. 506, it was held that a search warrant must have specificity to be constitutionally permissible. A general exploratory search cannot be justified by what it produces nor an arrest be justified by the fruit of an illegal search. (Byars v. United States, 273 U. S. 28, 71 L. Ed. 520, 47 S. Ct. 248.)

    The majority of this court determine that the search of the locked trunk of this motor vehicle, which was stopped for traffic violations, was reasonable since it was based upon probable cause to believe that some felony had been committed. Yet the testimony of Vern Miller, the arresting officer, belies that determination. At the preliminary hearing, when the facts and circumstances surrounding the arrest were fresh in his mind, he testified in response to questions regarding probable cause on the stolen property and narcotic charges as follows:

    “A. [Miller] Yes, but if you want me to answer the question, had I a suspicion, I couldn’t have obtained a search warrant on a suspicion.
    “Q. [Defense counsel] The fact is you didn’t have any suspicion except the open bottle.
    “A. [Miller] I didn’t even have suspicion when I looked in the suitcase and saw the open bottles.”

    It takes more than rumor, suspicion or even strong reason to suspect to constitute probable cause for search and seizure. (Harris v. United States, 331 U. S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098.) A search which is reasonable at inception may, as in the present case, violate the Fourth Amendment by its intensity and scope. (Terry v. Ohio, 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) An arrest for transporting an open bottle, as in United States v. Croft, 429 F. 2d 884 (10th Cir. 1970), may be sufficient to premise a limited search at the scene of the arrest but will not justify a general exploratory search for evidence of unrelated crimes.

    Certain facts surrounding the search and seizure in this case should be kept in mind. The accused was driving a leased or rented automobile. The narcotics seized from the locked trunk were the only evidence tying defendant to the narcotic violations. (Possession of narcotics.) The couple occupying the motor vehicle appeared no different to the officers than any other slightly inebriated couple on their way to or from some drinking party. The discovery by officers of an open bottle in a car, accessible to *9the driver, is not an uncommon occurrence. Such proscribed behavior constitutes a misdemeanor. (K. S. A. 41-804.) No extraordinary quantity of mixed liquors were being transported and, except for the one bottle, the assortment of liquor was confined to a suitcase. The assortment of liquor might well indicate that the occupants of the car were furnishing or had furnished liquor for a party. What is there about this suitcase of liquor to put the officer on reasonable notice that some felony had been committed? It is perfectly legal in Kansas to transport open containers of alcohol in the locked trunk of a car where it is not accessible to the driver and passengers. What right did the officers have to extend their search to the locked trunk of the car?

    The arresting officers in this case had no advance information of a crime and no description of a getaway car as in State v. Wood, 190 Kan. 778, 378 P. 2d 536, and in State v. Blood, 190 Kan. 812, 378 P. 2d 548. In the case of State v. Robinson, 203 Kan. 304, 454 P. 2d 527, the arresting officer had information from a reliable informer as to the description of the car and the nature of the contraband. being transported. In State v. Frizzell, 207 Kan. 393, 485 P. 2d 160, the officers saw a pile of unwrapped merchandise lying on the back seat of the car. Attached to certain of these articles of clothing were department store price tags in plain view. The officer observed furtive attempts by the occupants to conceal the merchandise and price tags. In Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975, the officers were advised in advance of the robbery of a filling station. They had a description of the blue compact station wagon seen leaving the scene of the crime at high speed. They were advised that one of the occupants was wearing a green sweater.

    In United States v. Croft, supra, the defendant was stopped for a traffic violation. An open bottle was seen in the car. It was held a limited search of the inside of the car, including the glove compartment, was permissible. However, a further exploratory search, using a key found in the glove compartment, was permitted only on the basis of a search warrant obtained by the officers.

    The reasoning by which the majority finds probable cause to search the locked trunk of the car in the present case is tenuous at best. The officers had no previous information as to the car or the occupants. The supporting facts known to the officers in Wood, Blood, Robinson, Frizzell and Chambers were not known and could not *10reasonably be suspected in tbe present case. The search o£ the suitcase can be supported under the authority of the Croft case. It was located in an area accessible to the occupants, and evidence of the one open bottle in plain view justified further search to support the open bottle charge. However, it is not illegal to transport open bottles of liquor in Kansas if they are placed in the trunk where they are inaccessible to the occupants. When the officers extended the search to the trunk of the car it became a general exploratory search prohibited by law.

    The fallacy of the reasoning, by which probable cause is found to extend the search, lies in the conclusion which is drawn from the assortment of liquors in a suitcase on the back seat of the car. Is this sufficient to show probable cause a felony has been committed and stolen property (narcotics and contraband drugs) are being possessed in the trunk of the car?

    The logic of this last conclusion entirely escapes me even though the defendant failed to explain the presence of the liquor to the satisfaction of the officers. I would hold the search unreasonable when it extended to the trunk of the car. The search of the trunk should have been under the authority of a search warrant, if at all. The search of the car was reasonable at its inception when limited to the passenger compartments. When the search was extended to the locked trank of the vehicle it violated Fourth Amendment rights by reason of its intensity and scope.

    Experience shows that an application of the exclusionary rale against evidence seized in violation of constitutional rights is the only viable method which the courts have to restrain overzealous law enforcement officers. I would apply the exclusionary rule in this case as to the evidence obtained by searching the locked car trunk. I would affirm those convictions based upon evidence obtained from a search of the inside of the car, the passenger compartments including the suitcase on the back seat. I would reverse the convictions based on evidence obtained from the locked trunk, the narcotic and drug convictions.

    Phageb, J., joins in the foregoing dissent.

Document Info

Docket Number: 46,091

Judges: Foth, Fromme, Phageb

Filed Date: 7/19/1972

Precedential Status: Precedential

Modified Date: 11/9/2024