State v. Ewertz
305 P.3d 23
Kan. Ct. App.2013Background
- Ewertz was stopped for suspected DUI after driving with no taillights and swerving.
- Officer Tatro observed intoxication clues: odor of alcohol, red eyes, slurred speech, and soberness test failures.
- Ewertz admitted consuming alcohol before driving; she failed several field sobriety tests and was arrested for DUI.
- During the roadside process, Tatro retrieved a purse, then searched the car incident to arrest, discovering a pink makeup bag with a glass pipe and later methamphetamine in a pouch inside the bag.
- Ewertz moved to suppress the evidence, challenging the car search as not permissible incident to arrest and the makeup bag search as improper under plain view.
- The district court denied the suppression motion; the issue on appeal was whether the search was lawful under Gant and whether plain view supported admission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the car search lawful under Gant’s second exception? | Ewertz argues no reasonable belief evidence of DUI would be in car. | State contends DUI evidence might be found; officer had probable cause and reasonable belief. | Yes; search justified under reasonable belief standard. |
| Does plain view support the makeup bag search? | Makeup bag search not explained by valid plain view under the first search. | Makeup bag revealed in plain view during lawful search incident to arrest. | Yes; plain view justified the makeup bag search. |
| Are the factual discrepancies between report and testimony dispositive to suppression? | Discrepancies undermine reliability of the search narrative. | Discrepancies are immaterial to the lawful plain view finding and search incident to arrest. | No; inconsistencies did not defeat the search legality. |
Key Cases Cited
- Arizona v. Gant, 556 U.S. 332 (U.S. 2009) (defines when vehicle search incident to arrest is permissible)
- New York v. Belton, 453 U.S. 454 (U.S. 1981) (vehicle search incident to arrest Trinidad-like framework (older authority cited))
- Thornton v. United States, 541 U.S. 615 (U.S. 2004) (supports broader vehicle search rationale post-arrest)
- State v. Pollman, 286 Kan. 881 (Kan. 2008) (Kansas totality-of-circumstances standard for reasonable suspicion)
- State v. Vandevelde, 36 Kan. App. 2d 262 (Kan. App. 2006) (enumerates warrantless search exceptions in Kansas)
- State v. Ulrey, 41 Kan. App. 2d 1052 (Kan. App. 2009) (plain view doctrine as a warrant-exception-based seizure)
- State v. Canaan, 265 Kan. 835 (Kan. 1998) (plain view elements and application in Kansas)
- Coolidge v. New Hampshire, 403 U.S. 443 (U.S. 1971) (plain view and warrant exceptions framework)