STATE OF KANSAS, Appellee, v. SHELIA D. DAVISON, Appellant.
No. 99,673
Court of Appeals of Kansas
February 20, 2009
(202 P.3d 44)
Randall E. Fisher, of Law Office of Randall E. Fisher, of Newton, for appellant.
Ty Kaufman, county attorney, and Stephen N. Six, attorney general, for appellee.
Before RULON, C.J., GREENE, J., and LARSON, S.J.
RULON, C.J.: Defendant Shelia D. Davison appeals from her convictions on various drug charges and a driving while suspended charge, all stemming from a traffic stop and a subsequent search of the defendant‘s car following her arrest. We affirm.
Officer Brad Smith of the Lindsborg Police Department stopped a vehicle for failing to dim headlights. The defendant was the driver and only occupant of the vehicle. Officer Smith approached the vehicle, made contact with the defendant, and told her he was going to issue a warning ticket for failing to dim headlights.
Officer Smith obtained the defendant‘s driver‘s license and insurance information and returned to his patrol car to run a check on the defendant. Smith learned the defendant‘s license was suspended and arrested the defendant. Smith asked the defendant to step out of the car, and she complied. Smith then searched and handcuffed the defendant before placing her in the backseat of his patrol car. Although the defendant was upset, she did not cause any problems after the arrest. Smith found no weapons on the defendant, was not in fear of his safety, and was not concerned the defendant might escape.
Just before Smith placed the defendant in his patrol car another officer arrived on the scene. After being informed the defendant was under arrest the second officer began to search the defendant‘s car, considering the search to be a search incident to arrest.
Meanwhile, Officer Smith asked the defendant if there was anyone who could come get the car. The defendant gave Smith the name and number of a friend. Smith called the friend, who agreed to come get the vehicle.
Officer Smith then helped the second officer complete the search of the defendant‘s vehicle. The search revealed a purse on the driver‘s seat which contained the following: a hand-rolled marijuana cigarette; a small plastic tube containing a white residue (commonly known as a “snort tube” and used for ingesting powdered narcotics); and a spiral notebook with writings that indicated the notebook was an “owe” sheet. The notebook contained first names or nicknames with dates, dollar amounts, and weight amounts. As we understand, such a notebook may be used by a person selling narcotics to track where and when a sale is made, what is sold, and how much is owed.
On the passenger seat of the defendant‘s vehicle, the officers found a black, zippered case containing an electronic scale with a
No drug tax stamps were found on any of the suspected drugs found within the defendant‘s vehicle. Several of the items found in the search were submitted to the KBI laboratory for testing. The tests showed marijuana in the cigarette and methamphetamine in the plastic tube, on the digital scale, on one of the spoons, and in three bags; the contents of the bags had a total net weight of 2.71 grams of methamphetamine.
Once the officers had completed the search, the defendant‘s friend arrived and the officers released the vehicle before driving the defendant to the jail. Officer Smith advised the defendant of her Miranda rights. The defendant waived her rights and denied knowledge of the items found in her vehicle. According to the defendant a friend named “Wendy” had been with the defendant earlier in the evening and the defendant suggested Wendy may have left the items in the vehicle. The defendant could not recall Wendy‘s last name. The defendant said she picked up Wendy at a friend‘s house in Hutchinson and Wendy had exited the defendant‘s vehicle upon seeing Wendy‘s ex-husband. The defendant said Wendy was in the defendant‘s vehicle alone while the defendant purchased gasoline in Hutchinson.
Eventually, the State charged the defendant with one count of possession of methamphetamine with intent to distribute, in violation of
Later, the defendant filed a motion to suppress all evidence and statements obtained by the officers, alleging such evidence was obtained in the course of an illegal search and seizure.
The State filed an extensive response to the defendant‘s motion, including legislative history for
The district court agreed with the State‘s position that Belton now controls in Kansas following the 2006 amendment to
The defendant waived her right to a jury trial, and the case was tried to the district court on stipulated facts. The defendant preserved the search and seizure issues presented in this appeal and asserted there was insufficient evidence to sustain a conviction. The district court found the defendant guilty of all five counts of the complaint.
The defendant timely appealed.
The Search
On appeal the defendant raised the same issues as presented to the district court.
The material facts underlying the motion to suppress are not in dispute, making the question of whether to suppress a question of law over which this court has unlimited review. See State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person‘s immediate presence for the purpose of
(a) Protecting the officer from attack;
(b) Preventing the person from escaping; or
(c) Discovering the fruits, instrumentalities, or evidence of a crime.”
Our Supreme Court has held that “[i]n Kansas, the permissible circumstances, purposes, and scope of a search incident to arrest are controlled” by
The issue squarely before us is the permissible physical scope of the challenged search. The defendant does not challenge the circumstances or the purposes of the search, but only whether the vehicle was within the defendant‘s immediate presence as contemplated by the above statute.
The first case cited by the defendant is State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996). In Anderson, a police officer made a traffic stop and arrested the driver for driving on a suspended license and for an outstanding warrant. The officer arrested the driver and placed her in the backseat of his patrol car and then returned to her vehicle. The officer and his backup asked the passenger to exit the vehicle and then searched the vehicle, finding a variety of drug-related items. The only possible grounds for the search was that it was a search incident to arrest under
The Anderson court ultimately determined the search and seizure was unlawful under
The next case cited by the defendant is State v. Conn, 278 Kan. 387, 99 P.3d 1108 (2004). Conn involved a traffic stop in which the defendant could not produce a driver‘s license for the police officer. The officer then conducted a search of the vehicle for the purpose of finding proof of identification and instead found drugs and drug paraphernalia. Citing Anderson, the Conn court determined the search was not a valid search incident to arrest because the search was not conducted for a valid purpose under
The final case cited by the defendant in support of her argument is State v. Vandevelde, 36 Kan. App. 2d 262, 138 P.3d 771 (2006). In Vandevelde, police officers made a traffic stop after observing the defendant engage in actions suggesting the defendant was involved in the sale of narcotics. Due to the defendant‘s noncompliance with the officers’ commands, the defendant was arrested and the officers proceeded to search his vehicle, finding rock cocaine in a pipe. After discussing Anderson and Conn, this court determined the search was not a valid search incident to arrest, because it was not reasonably conducted for one of the purposes under
The defendant contends the plain language of the statute and the decisions discussed above show the phrase “area within [the] person‘s immediate presence” means law enforcement officers cannot search an automobile as a search incident to arrest once the officers have arrested, searched, handcuffed, and then placed the
Case law in Kansas and other jurisdictions indicates when an arrestee has been a “recent occupant” of a vehicle, such vehicle may be considered to be within the person‘s “immediate presence” and therefore within the proper scope of a search incident to arrest under
Before the United States Supreme Court decided Belton, but after
“(1) Proximity of the vehicle to the place of arrest; (2) the probability that the vehicle contains seizable items related to the crime; (3) the amount of time which has elapsed between the arrest and the search; (4) the recent departure of the arrestee from the vehicle; (5) the fact that the vehicle had been employed in some way in connection with the crime; and (6) the character of the place of arrest, i.e., public street, business premises or private home. Other factors may bear upon the question and no single factor, standing alone, is decisive in a given case for each may have a significant effect on the court‘s determination of whether the search was a reasonable one.” 215 Kan. at 412.
In Belton, the defendant was stopped for speeding. The police officer smelled burned marijuana and spotted an envelope he suspected of containing marijuana on the floor of the vehicle. The officer arrested the four occupants of the vehicle, including the defendant, for possession of marijuana and directed them to stand in four separate areas by the side of the car. The officer then searched the passenger compartment of the car and found cocaine inside a jacket in the car.
The Belton Court was faced with the question of whether the interior of an automobile recently occupied by an arrestee can be considered an “‘area within the immediate control of the arrestee.‘” 453 U.S. at 460. The Belton Court decided “when a policeman has made a lawful custodial arrest of the occupant of an au-
In State v. White, 230 Kan. 679, 640 P.2d 1231 (1982), our Supreme Court applied Belton in determining a seizure of a jacket and cap from the vehicle of a defendant arrested for robbery was proper, even though the defendant had already been removed from the vehicle. In State v. Deskins, 234 Kan. 529, 531, 543, 673 P.2d 1174 (1983), our Supreme Court cited White in upholding the lawfulness of a search of the defendant‘s vehicle following the defendant‘s arrest for DUI, even though the defendant was already in the police car when the search took place. Neither White nor Deskins discussed
In State v. Press, 9 Kan. App. 2d 589, 590, 593-97, 685 P.2d 887 (1984), rev. denied 236 Kan. 877 (1984), this court cited Belton, White, and Deskins in upholding the search of an arrestee‘s vehicle under
This court revived the Tygart factors in State v. Van Wey, 18 Kan. App. 2d 260, 850 P.2d 283 (1993). In Van Wey, police officers arrested the defendant outside an apartment complex for criminal trespass and battery after breaking up a fight in which he was involved. The officers proceeded to search the defendant‘s vehicle, even though the defendant was arrested more than 25 feet from the vehicle and the defendant had arrived at the location more
Our Supreme Court applied the Tygart factors again while relying on Belton in State v. McClain, 258 Kan. 176, 177, 183-84, 899 P.2d 993 (1995), to uphold police officers’ search of a vehicle after arresting its driver and passenger for armed robbery.
This court subsequently noted Kansas courts have continued to apply the Tygart factors “after acknowledging that Kansas follows Belton.” See State v. Box, 28 Kan. App. 2d 401, 408, 17 P.3d 386 (2000); see also Vandevelde, 36 Kan. App. 2d at 271 (Tygart factors “are helpful when considering the reasonableness of the scope of the search.“).
As we understand, the defendant argues our Supreme Court‘s decision in Anderson narrowed the applicability of Belton as to the physical scope of a search incident to arrest under
We are convinced Kansas courts have continuously applied Belton to permit the search, under
Applying the Tygart factors here leads us to the conclusion the search of this defendant‘s vehicle did not exceed the permissible scope. Here, the defendant was arrested in her vehicle, the search began shortly after the arrest was made and shortly after the defendant had departed the vehicle, and the arrest was made at a traffic stop on a public street. These factors all support the validity of the search.
Under the facts here the search here did not exceed the permissible scope for such automobile searches and was a valid search
Sufficiency of Evidence
The defendant argues there was insufficient evidence to support her drug convictions. We disagree.
When an appellate court is asked to review the sufficiency of the evidence in a criminal case, the court reviews all the evidence in the light most favorable to the prosecution and must be convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
The convictions challenged by the defendant are four “possession” crimes: possession of methamphetamine with intent to distribute, in violation of
To support the conviction of possession of methamphetamine with intent to distribute, the evidence had to show that the defendant sold; offered for sale or had in her possession with intent to sell, deliver, or distribute; prescribed; administered; delivered; distributed; or dispensed methamphetamine. See
To support the conviction of possession of methamphetamine without drug tax stamps, the evidence had to show that the defendant was a “dealer” who distributed or possessed methamphetamine without affixing the appropriate tax stamp, label, or other indicia. See
To support the conviction of possession of marijuana, the evidence had to show that the defendant had marijuana in her possession or under her control. See
The defendant‘s primary argument is there was insufficient evidence to meet the possession requirement for each crime. The defendant contends there was nothing to identify the drugs or drug-related items as the defendant‘s, and she claims the items belonged to “Wendy,” the passenger who the defendant says was riding with her earlier in the evening. This argument fails. This court has previously defined “possession” of a controlled substance as having control over such substance with “knowledge of, and intent to have, such control. Possession and intent, like any element of a crime, may be proved by circumstantial evidence.” State v. Marion, 29 Kan. App. 2d 287, 290, 27 P.3d 924 (2001), rev. denied 272 Kan. 1422 (2001).
Here, the stipulation of facts shows the officers found numerous drugs and drug-related items in the passenger compartment of defendant‘s vehicle, including a marijuana cigarette, 2.71 grams of methamphetamine in various bags, an electronic scale with methamphetamine residue, a notebook that appeared to be an “owe sheet,” a “snort tube,” and $455.83 in cash. The marijuana, “snort tube,” and “owe sheet” were found in a purse on the driver‘s seat. The scale, money, and bags of methamphetamine were found on the passenger seat of the vehicle. The defendant was the only occupant of the vehicle.
The drugs and drug-related items were found in close proximity to the defendant in a vehicle of which the defendant was the only occupant. There is sufficient evidence the defendant was in possession of these items.
The defendant next contends there was no evidence of any drug sale activity or that the defendant was involved in such activity. However, the officers testified the “owe sheet,” the electronic scale, and the money were all indicative of drug sales. Additionally, there were “numerous small bags” containing methamphetamine.
There was sufficient evidence supporting the defendant‘s convictions.
Affirmed.
GREENE, J., dissenting: I respectfully disagree with my colleagues’ application of
Before the search of Davison‘s vehicle was initiated, Davison was searched, handcuffed, and placed in the backseat of the patrol car. As she was seated in the patrol car, Officer Smith asked her if there was someone who could come and get the car, and Davison provided the name and address of a friend. Officer Smith then contacted the friend, who agreed to come and get the car. The officer testified that it was never his intention to impound the vehicle. These conversations were apparently complete before the second officer arrived at the scene, confirmed that Davison was under arrest, and got into Davison‘s vehicle to begin a “partial search.” After finding an item of contraband, the second officer conferred with Officer Smith, who then assisted in completing a more thorough search that resulted in additional items of contraband.
I would not struggle with the question whether to apply
The amended statute allows a search of “the area within [the arrested] person‘s immediate presence.”
Our initial task should be a careful analysis of Kansas case law construing
In its analysis of the paramount issue, the majority first cites and relies on State v. Tygart, 215 Kan. 409, 524 P.2d 753 (1974). I would conclude that Tygart is not very helpful here because it upheld a search on the combined grounds of incident to arrest and independent probable cause. Moreover, the six-prong test set forth by the court in Tygart was not clearly limited to the statutory standard; the court clearly relied on both state and federal law to promulgate a more “general” test for an entirely different criteria, i.e., “within the arrestee‘s immediate control.” (Emphasis added.) 215 Kan. at 412. Obviously, “control” is not necessarily synonymous with “presence,” and the test should have little if any application in a pure statutory application. Finally, the circumstances present in Tygart have no similarity whatsoever to the facts before us here.
The majority next discusses State v. White, 230 Kan. 679, 640 P.2d 1231 (1982), and State v. Deskins, 234 Kan. 529, 531, 673 P.2d 1174 (1983), but concedes that
The majority then discusses State v. Press, 9 Kan. App. 2d 589, 685 P.2d 887 (1984), rev. denied 236 Kan. 877 (1984), State v. Van Wey, 18 Kan. App. 2d 260, 850 P.2d 283 (1993), State v. McClain, 258 Kan. 176, 899 P.2d 993 (1995), State v. Box, 28 Kan. App. 2d 401, 17 P.3d 386 (2000), and State v. Vandevelde, 36 Kan. App. 2d 262, 138 P.3d 771 (2006). Notably, although the court in Press cites and quotes
My analysis has shown that we have no guidance from prior case law on the precise issue framed by this appeal, i.e., whether Davison‘s vehicle remained in the “area within [Davison‘s] immediate presence” after she had been removed from the vehicle, handcuffed, and placed in the back of the patrol car and arrangements had been made for a friend to take possession of and remove the vehicle.
In the absence of guiding precedent, I would look anew at the statutory phrase and construe it applying well-known standards. In doing so, we should examine and interpret the terms “immediate” and “presence.” The words of a statute are the main source for determining a legislative purpose. In re Marriage of Williams, 32 Kan. App. 2d 842, 851, 90 P.3d 365 (2004). In construing statutes, the legislature is presumed to have consciously chosen the words used with an understanding of their ordinary and common meanings. International Ass‘n of Firefighters v. City of Kansas City, 264 Kan. 17, 31, 954 P.2d 1079 (1998). Ordinary words are given their
Turning first to the ordinary meaning of “immediate,” we note that the common dictionary definitions of the term include “being without the intervention of another object, cause, or agency” and “directly touching or concerning a person or thing.” Webster‘s Ninth New Collegiate Dictionary 601 (1991). Black‘s Law Dictionary 764 (8th ed. 2004) includes the definitions “not separated by other persons or things” and “having a direct impact; without an intervening agency.” Noting that our statute employs this term as an adjective to modify the term “presence,” we must determine not only whether the area searched was within the “presence” of Davison, but whether it was within her “direct” or “unseparated” presence, or otherwise a presence without intervention of other objects or causes.
The common dictionary definitions of the term “presence” include “the part of space within one‘s immediate vicinity.” Webster‘s Ninth New Collegiate Dictionary 930 (1991). Black‘s Law Dictionary 1221 (8th ed. 2004) includes as definitions “[c]lose physical proximity coupled with awareness.” Accordingly, we must examine whether the area searched was within the direct vicinity of Davison—within close physical proximity and awareness.
Applying these definitions, I would hold that the statutory phrase “the area within [the arrestee‘s] immediate presence” means the area must be within the direct, unseparated vicinity of the arrestee, with no intervention preventing direct access to and awareness by the person. Such an area would clearly not include the vehicle under the circumstances in this case; Davison had indeed been separated from her vehicle and was no longer within its direct vicinity. Moreover, at least two interventions had occurred preventing her continued direct access: (1) she had been arrested, hand-
This analysis would be definitive on the issue presented here, but I must also note that my construction and application of the statute is entirely consistent with well-established principles of inventory searches, precluding random searches of vehicles upon arrest without some indicia of reasonableness. See State v. Shelton, 278 Kan. 287, 93 P.3d 1200 (2004). Shelton is the most recent in a long line of Kansas cases that have established guidelines for vehicle searches, usually after the arrest of the driver or other occupants, to prevent “‘general rummaging in order to discover incriminating evidence.‘” 278 Kan. at 1209 (quoting Florida v. Wells, 495 U.S. 1, 4, 109 L. Ed. 2d 1, 110 S. Ct. 1632 [1990]). This entire line of cases is at risk if not effectively abolished by the majority‘s view in this case. Why bother with reasonableness or lawful impoundment, or any other of myriad issues that generally arise in the inventory search cases? If the arrestee has been removed from a vehicle, that vehicle is fair game for comprehensive search without any further showing whatsoever. I simply cannot square the majority‘s view with our long line of inventory search cases—all of which are based on sound constitutional principles.
Additionally, the confusion reflected in our case law since the initial enactment of
Finally, I must demonstrate what a sad day it is for the Fourth Amendment when a search of this nature is permitted. “If there is no controlling statute or exception to the warrant requirement that permits law enforcement to enter the vehicle [under these circumstances], then the defendant retains a limited expectation of privacy in its interior.” Shelton, 278 Kan. at 1210 (Beier, J., concurring). Here, Davison was stopped for failure to dim her lights, arrested for an outstanding traffic warrant, removed and securely stowed in the squad car, and without any further showing whatsoever, her car was subjected to a comprehensive search by two law officers. There was no reason to expect contraband based on the crime of arrest, there was no fear of officer safety, and there was no other reasonable basis whatsoever to search the vehicle. I would simply argue this is not consistent with the Fourth Amendment‘s guarantee people are to be “secure” from unreasonable searches.
I would reverse the district court, suppress the fruits of the search of Davison‘s vehicle, and remand for further proceedings.