DocketNumber: No. 106,480
Citation Numbers: 48 Kan. App. 2d 180, 286 P.3d 232
Judges: Atcheson, Bruns, Green
Filed Date: 9/21/2012
Status: Precedential
Modified Date: 7/24/2022
Defendant Jessica Lundquist contends Prairie Village police officers had no lawful basis to search her car without a warrant even though she met with an undercover agent in the car to facilitate illegal drug sales twice in 3 days, the second time just before she was arrested. The Johnson County District Court denied Lundquist’s motion to suppress a small amount of marijuana police discovered during the search of her car. The court later convicted her of felony possession of marijuana as a repeat offender. Lundquist has appealed the ruling denying the motion to suppress. We affirm the district court because the search was reasonable under the Fourth Amendment to the United States Constitution. The officers had probable cause to search the car and needed no warrant based on the motor vehicle exception to the warrant requirement of the Fourth Amendment.
Factual Background and Procedural History
Through a confidential informant, Prairie Village Police Officer Ivan Washington contacted Lundquist and arranged to buy 10 pills of ecstasy from her. Washington, working in an undercover capacity, met with Lundquist in the parking lot of a Lenexa supermarket on December 14,2009, and purchased the pills for $90. Lundquist drove to the parking lot in her Nissan sedan. The two exchanged the drugs and money in her car. Lundquist told Washington she could arrange a discount price for a larger order and offered to sell him 100 pills for $700.
Washington took Lundquist up on her offer. He met with her in a restaurant parking lot in Prairie Village 3 days later. Lundquist again drove her Nissan but arrived in tandem with an Oldsmobile with several occupants. Washington first approached the Oldsmobile and was quickly directed to the Nissan, where Lundquist and a passenger were waiting. Lundquist told Washington to give her the money and she would tiren get the pills. Washington refused, saying he would only exchange the money for the drugs. At tire suppression hearing, Washington testified he saw no drugs in Lundquist’s car. Washington then got out of the Nissan and returned to his pickup truck. Lundquist went to the Oldsmobile and
As soon as Lundquist left the truck and started toward her Nissan, other Prairie Village officers approached and arrested her. She was immediately handcuffed and read the Miranda warnings. Washington testified that Lundquist was perhaps one-and-a-half car lengths from the Nissan. The Oldsmobile sped off with other officers in pursuit. That chase ended in Kansas City, Missouri, when the suspects successfully evaded the officers.
After restraining Lundquist, Washington and other officers searched the Nissan. They found a small amount of marijuana in the side compartment of the driver’s door, six ecstasy pills, and a handgun in the backseat area.
Lundquist already had a conviction for possession of marijuana. So the district attorney’s office charged her with felony possession under the recidivist provisions of K.S.A. 2009 Supp. 21-36a06(b)(3), (c)(2); see K.S.A. 2009 Supp. 65-4105(d)(16) (designating marijuana as a controlled substance). The pills Lundquist sold Washington contained neither ecstasy nor any other controlled substance. Accordingly, the district attorney’s office charged Lund-quist with two counts of misdemeanor distribution of a noncon-trolled substance represented to be a controlled substance. See K.S.A. 2009 Supp. 21-36al4.
Lundquist filed a motion to suppress the drugs and other items the police took from her car. The district court held an evidentiary hearing on the motion on August 18,2010, and denied it in a bench ruling after hearing argument from counsel. The State offered three bases for denial: (1) the search was incident to a lawful arrest; (2) the police had probable cause and did not need a warrant under the motor vehicle exception; and (3) the items inevitably would have been discovered during an inventory search of the car. The district court relied on the first and third grounds to deny the motion. At a bench trial on April 7, 2011, the district court found Lundquist guilty of all three charges. She was placed on probation for 18 months, with an underlying sentence of 13 months in prison. Lundquist has timely appealed.
On appeal, Lundquist argues the district court erred in granting the motion to suppress, a ruling implicating only her felony conviction for marijuana possession. The State asserts the same bases it presented to the district court for the propriety of the search. Because we find the Prairie Village police had probable cause to search Lundquist’s car and the motor vehicle or automobile exception obviated the need for a warrant, we affirm the district court for that reason. We need not and, therefore, do not consider the other grounds the State advances for tire constitutionality of the search.
In reviewing a district judge’s ruling on a motion to suppress, an appellate court applies a bifurcated standard. The appellate court accepts the factual findings of the district judge if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); see State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008) (allocation of burden; quantum of evidence); Thompson, 284 Kan. at 772 (allocation of burden).
By its express language, the Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures” and, thus, prohibits government agents from engaging in unreasonable searches and seizures. To further that right, the Fourth Amendment also requires warrants based on probable cause be presented under oath to a judicial officer and any warrant describe with particularity the places to be searched and the person or objects to be seized. As a general matter, warrantless searches violate the Fourth Amendment, subject to certain defined exceptions. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009); Maryland v. Dyson, 527 U.S. 465, 466, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999).
For purposes of the motor vehicle exception, a car is considered “readily mobile” if it is operable, even though it may he parked at the time of the search. Carney, 471 U.S. at 392-93 (exception ap
Lundquist’s Nissan sedan came within the motor vehicle exception when the Prairie Village police arrested her. The car was plainly operable. While the car was parked and Lundquist was not in it, the exception extends to vehicles in public or commercial parking lots or spaces. In this case, Lundquist arrived with a passenger who remained with the Nissan throughout tire incident. The passenger could have operated and removed the car, though nothing in the record indicates he or she had any intention or desire to do so. The passenger’s physical presence, nonetheless, bolsters the applicability of the exception.
The police officers also had to have probable cause for the search to satisfy the Fourth Amendment as applied to motor vehicles. Probable cause supporting a constitutional search requires that government agents possess specific facts leading a reasonable person to conclude evidence of a crime may be found in a particular place. The standard sets the bar at “a fair probability” in light of the factual circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (search warrant may issue when the supporting affidavit establishes “a fair probability that contraband or evidence of a crime will be found in a particular place”); Sanchez-Loredo, 294 Kan. at 55 (probable cause to search a motor vehicle requires a “ ‘fair probability’ that the vehicle contains contraband or evidence” based on the “totality of the circumstances”); State v. Bottom, 40 Kan. App. 2d 155, 161, 190 P.3d 283 (2008), rev. denied 287 Kan. 766 (2009).
Lundquist suggests the officers did not have adequate cause, since Washington saw no drugs in the Nissan during the second transaction. Lundquist plainly got the pills she sold from the occupants of the Oldsmobile. But Lundquist takes too narrow a view
Apart from the pills, the officers had probable cause to search the car for other evidence of drug trafficking. Lundquist’s immediate involvement in a sale of what appeared to be and what she represented to be illicit drugs cleared that standard. Even if Lund-quist had no pills or other drugs in the Nissan during the second transaction, she veiy well could have had other incriminating items. A cell phone, for example, would have call histoxy information that could point to Lundquist’s suppliers or other contacts. There might be text messages providing similar evidence. Lundquist might have kept handwritten notes of telephone contacts, addresses, or specific transactions. A large amount of cash would be indicative of drug trafficking. So would the presence of materials, such as plastic sandwich bags, commonly used to package illicit drugs for distribution. Lundquist’s direct participation in the sales coupled with her use of the Nissan to carry out those transactions furnished the police officers probable cause to search the car. The officers searching the Nissan for that sort of evidence would have discovered the marijuana. It was in a place where those items might
Lundquist did not explicitly rely on the Kansas Constitution Bill of Rights § 15 as a basis to suppress the marijuana. That provision contains functionally the same language as the Fourth Amendment. The Kansas Supreme Court has consistently interpreted the Kansas constitutional protections against unreasonable searches and seizures to be no greater than those in the Fourth Amendment. See State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011). The court declined to consider the application of the Kansas Constitution in Sanchez-Loredo, 294 Kan. at 59, because the defendant had not cited or argued the provision. We have no reason to conclude Lundquist would have succeeded with an argument based on the Kansas Constitution absent a contrary ruling from the Kansas Supreme Court. And there isn’t one.
In sum, the search of Lundquist’s car met the test of reasonableness under the Fourth Amendment consistent with the motor
Affirmed.