State v. HenningState v. Henning
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This is the State’s appeal from the district court’s suppression of evidence seized during the search of a vehicle incident to a lawful arrest on July 6, 2006.
The first impression issue in Kansas in this appeal involves the interpretation of the 2006 amendment in
The facts in this case are not controverted and show the following scenario and proceedings in the cases before us on appeal.
On the morning of July 6, 2006, Deputy Patrick Stevenson was entering a convenience store in Emporia when he noticed Randy Henning walking out of the store. Stevenson knew Henning from a previous incident and remembered Henning’s name had been on an outstanding arrest warrant list. Stevenson immediately called dispatch and verified there was an outstanding arrest warrant for Henning for a traffic violation.
Stevenson testified that by the time he verified Henning’s outstanding arrest warrant, Henning had entered the front passenger side of a car. Kelly Zabriskie was in the driver’s seat of the car. The car was registered to Henning.
Stevenson called to Henning and asked to speak to him. Henning got out of the car, and Stevenson asked Henning for his date of birth. Stevenson relayed this information to dispatch and verified Henning was the person named in the arrest warrant. Stevenson told Henning he was under arrest and handcuffed him.
Stevenson proceeded to search Henning’s car. Stevenson testified that he searched Henning’s car as a search incident to arrest under
Henning and Zabriskie were separately charged with possession of amphetamine in violation of
Henning argued that in order to search a car incident to arrest under
The trial court granted Henning’s and Zabriskie’s motions to suppress. The trial court held that Stevenson’s search went beyond the scope of
The State appealed the district court’s decision in both Henning’s and Zabriskie’s cases. The appeals were consolidated by our court.
We first consider the State’s contention that the search of the vehicle occupied by Henning and Zabriskie was a valid search incident to arrest as specifically allowed by
The standards of review in appeals of suppression motions are well known and are applicable here.
“In reviewing a district court’s decision regarding suppression, [an appellate] court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]” State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).
But, when the material facts to a trial court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). The State bears the burden of proof for a suppression motion. It must prove to the trial court the lawfulness of die search and seizure. State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006).
In this case, we have additional questions of statutory interpretation and the ever-present Fourth Amendment issues. In State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003), the language of both the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights was set forth and it was noted the protections thereunder to be free of unlawful searches and seizures are identical under both provisions. See State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993). Mendez further stated:
“It is a well-recognized rule that unreasonable searches and seizures are constitutionally prohibited and ‘[u]nless a search falls within one of a few exceptions, a warrantless search is per se unreasonable.’ State v. Canaan, 265 Kan. 835, Syl. ¶ 1, 964 P.2d 681 (1998). We further said in Canaan that ‘[t]he exclusionary rule prohibits the admissions of the “fruits” of illegally seized evidence, i.e., any information, object, or testimony uncovered or obtained, directly or indirectly, as a result of the illegally seized evidence or any leads obtained therefrom.’ 265 Kan. 835, Syl. ¶ 3.” 275 Kan. at 420-21.
One of the recognized exceptions to the search warrant requirement is the contemporaneous search incident to arrest doctrine, which in Kansas is statutorily based. See Mendez, 275 Kan. at 421; State v. Anderson, 259 Kan. 16, 19, 910 P.2d 180 (1996). In our case the State’s only argument is that the search of the vehicle was a search incident to a lawful arrest.
As we are taught by
State v. Conn,
278 Kan. 387, 391, 99 P.3d 1108 (2004): “In Kansas, the permissible circumstances, purposes, and scope of a search incident to arrest are controlled by statute. [Citation omitted.]” The statute in issue in our case is
“Sec. 8.K.S.A. 22-2501, as repealed by 2006 Senate Bill No. 366, is hereby revived and amended to read as follows: 22-2501. 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 the a crime.” L. 2006, ch. 211, sec. 8.
This change frames the issue in our case: Was it permissible for Stevenson to search the vehicle Henning had been occupying once Henning had been lawfully arrested based on the outstanding traffic warrant? For the reasons herein stated, we answer this question “yes.”
“The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court’s interpretation. [Citation omitted.]” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). Bryan further teaches us:
“The fundamental rule of statutory construction is to ascertain the legislature’s intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be. [Citation omitted.]” 281 Kan. at 159.
Moreover, as a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. Nevertheless, the rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Snow, 282 Kan. 323, 340-41, 144 P.3d 729 (2006).
Although this entire case is premised on the change of a single word in
In
Conn,
Justice Luckert made it clear that “[a] search which is purely a search incident to arrest may only be conducted for the purposes listed in
In
Anderson,
an officer searched a car for drugs after arresting the driver for driving on a suspended license and on an outstanding traffic warrant. Our Supreme Court held that the search was an improper search incident to arrest because it was not conducted for any of the purposes under
Similarly in
Conn,
278 Kan. 387, it was held that a search of a car after the defendant had been arrested for driving without a proper driver’s license and failing to provide proof of insurance could not be upheld under
It is thus clear that prior to July 1, 2006, an officer must have been searching for evidence of the crime for which the person had been arrested in order for the search under subsection (c) to be upheld as a valid search incident to arrest.
The language of
It is important that we consider and follow the long-time rule in Kansas that we find in State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006): “ “When the legislature revises an existing law, it is presumed that the legislature intended to change the law from how it existed prior to the amendment, and it is presumed that the legislature does not intend to enact useless or meaningless legislation.’ State v. Van Hoet, 277 Kan. 815, 826, 89 P.3d 606 (2004).”
There is no question but that by changing the word “the” to “a” in
However, Henning and Zabriskie argue that this is a criminál statute that must be strictly construed in favor of the accused, see State v. Stout, 37 Kan. App. 2d 510, 515, 154 P.3d 1176 (2007), and in doing so, the officer must have an identifiable crime and probable cause to believe that it occurred even though it may not be the crime for which the person was arrested.
To accept Henning’s argument, however, this court would have to read out the phrase “a crime” and substitute it with “an identified crime for which the officer has probable cause to believe occurred.” Such an interpretation would violate the rule of statutory construction that “ ‘[ojrdinaiy words are to be given their ordinary meanings without adding something that is not readily found in the statute or ehminating that which is readily found therein.’ [Citation omitted.]”
McElroy,
281 Kan. at 262. Moreover, such an interpretation does not comport with the plain language of
It will be helpful to look to the legislative history for it appears that by changing “the crime” to “a crime” in
In looking at the legislative history, we are bound by the statement in Estate of Soupene v. Lignitz, 265 Kan. 217, 220, 960 P.2d 205 (1998):
“Although appellate courts will not speculate as to the legislative intent of a plain and unambiguous statute, [citation omitted] where the construction of a statute on its face is uncertain, the court may examine the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under various suggested interpretations. [Citation omitted.]”
Research of legislative history reveals that proposed legislation was first introduced in 2004 to amend
“HB 2542 would change the word to the broader ‘a’ from the narrower ‘the’. This is not any reduction in anyone’s constitutional rights. It is merely bringing our statute into accord with law elsewhere in the United States as well as with the law in Kansas prior to this statute being construed in 1996.1 would note that there was no problem with abuses prior to 1996, when the Belton rule was the law. The only thing this State v. Anderson case has done is it has allowed certain criminals who are already under arrest to escape punishment for other crimes they have committed, as well as confuse the training of law enforcement officers throughout the state.” Minutes, House Corrections and Juvenile Justice Comm., February 2, 2004.
At the same hearing, Randall Hodgkinson, deputy appellate defender, testified against the proposed amendment to
The identical proposed amendment was again introduced in 2005 in House Bill 2261. House J. 2005, p. 104. Michael Jennings, legislative chair of the Kansas County and District Attorneys Association, expressed support in a letter stating the amendment would allow the State to use in evidence anything possessed by an arrested person that had been found on their person or in the passenger compartment of their car when the arrest was made. Minutes, House Corrections and Juvenile Justice Comm., February 14, 2005.
Kyle Smith again testified, but this time he urged the committee to repeal
The legislative proceedings for the remainder of the 2005 session shows a bill to repeal
The testimony concerning
It is clear from this review of the legislative process that the legislature intended to broaden the actions a law enforcement officer may take once a lawful arrest is effected. The legislative action was taken in response to the
Anderson
decision which had followed the prior statutory language of
With the apparent legislative intent to rely on the Belton decision, a brief discussion of the jurisprudence of the United States Supreme Court with reference to decisions relating to searches incident to an arrest is indicated. This began in 1969 with the decision of Chimel v. California, 395 U.S. 752, where the Court held the scope of a search to be unreasonable because it went beyond the arrestee’s person and the area from which he might have ob tained a weapon or something that could have been used as evidence against him. But, the Chimel Court announced the following rules:
“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from which he might gain possession of a weapon or destructible evidence.” 395 U.S. at 762-63.
Chimel was followed in 1981 by New York v. Belton, 453 U.S. 454, where a bright-line rule for police searches of the interior of a vehicle when the vehicle’s occupants have been arrested was established. In Belton, the officer stopped a car for speeding. During the stop, the officer discovered that none of the four occupants owned the car, nor were they related to the car’s owner. Moreover, the officer had smelled burnt marijuana and had seen an envelope that he associated with marijuana on the floor of the car. The officer directed the occupants to get out of the car and placed them under arrest. They were separated and searched. While searching the passenger compartment of the car, the officer discovered a black leather jacket that belonged to the defendant on the back seat. The officer unzipped one of the pockets and discovered cocaine. The defendant argued that the cocaine should be suppressed.
The Belton Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. at 460. The Court further held: “It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. [Citations omitted.]” 453 U.S. at 460. The Court provided a footnote that its decision did not change Chimel’s principles: “Our holding today does no more than determine the meaning of Chimel’s principles in this particular and problematic context. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” Belton, 453 U.S. at 460 n.3.
We will later discuss a recent search incident to arrest case,
Thornton v. United States,
541 U.S. 615, 158 L. Ed. 2d 905, 124 S. Ct. 2127 (2004), where the
Belton
rule was applied to an arrested person who was a “recent occupant” of a vehicle. Several of the opinions in
Thornton
have been cited by Henning in questioning the constitutionality of
In reaching this conclusion, we also look to decisions in Illinois and Florida where the
Belton
holding has been followed in states that have statutory provisions nearly identical to
The First District Court of Appeals in Florida stated:
“When an occupant of a vehicle is arrested, the police may search the vehicle. See New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981). The authority for a vehicle search incident to an arrest does not depend on a reasonable suspicion of criminal activity or probable cause. It is instead a bright-line- rule arising from the very fact of the arrest itself, regardless of whether the officers had a reasonable suspicion of criminal activity. [Citations omitted.] This rule is based on the need to remove any weapons and to preserve any evidence that might be in the vehicle. See Belton, 453 U.S. at 461-62; Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).” Gilbert, 894 So. 2d at 1056-57.
Similarly, the Illinois Supreme Court said:
“Although a search incident to arrest is based on the need to disarm and discover evidence, the authority to search does not depend on the probability in a particular case that weapons would in fact be found or evidence would in fact be destroyed. * “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” ’ [Citations omitted.]” Bailey, 159 Ill. 2d at 504.
The decisions in both Florida and Illinois support the decision and result which we now reach in Kansas.
It is apparent that we followed the
Belton
rule here in Kansas before
Under Belton, a search of the passenger compartment of an automobile incident to arrest is permissible when the arrestee is an occupant or recent occupant of the automobile. See State v. Van Wey, 18 Kan. App. 2d 260, Syl. ¶ 1, 850 P.2d 283 (1993). Moreover, in Thornton, 541 U.S. at 617, the United States Supreme Court held that “Belton governs even when a officer does not make contact until the person arrested has left the vehicle.” As long as the arrestee is a “ ‘recent occupant’ ” of the vehicle, “officers may search that vehicle incident to arrest.” 541 U.S. at 623-24. Here, Stevenson’s testimony establishes that Henning was in his car immediately before his arrest. Stevenson asked Henning to get out of his car, checked Henning’s identity, and placed him under arrest. Because Henning had been a recent occupant of the car when he was arrested, Stevenson was justified in searching the passenger compartment of the car as a search incident to arrest.
The trial court’s ruling on the motions to suppress of both Henning and Zabrislde must be reversed.
Although it is questionable whether the constitutionality of
Our duty when the constitutionality of a statute is in issue is well known, as stated in State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006):
“ ‘The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond reasonable doubt. [Citation omitted.]’ State v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000).”
It is further clear that the interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
To support the argument that
In a concurring opinion, Justice Scalia, with whom Justice Ginsburg joined, stated that he would “limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” 541 U.S. at 632. However, under this rule, the search that took place in Thornton would be justified. Noting that the petitioner was lawfully arrested for a drug offense, Justice Scalia stated that it was reasonable for the officer “to believe that further contraband or similar evidence relevant to the crime for which he had been arrested might be found in the vehicle from which he had just alighted and which was still within his vicinity at the time of arrest.” 541 U.S. at 632 (Scalia, J., concurring in the judgment).
Chief Justice Rehnquist, writing for the plurality, declined to address the issue discussed by Scalia in his concurring opinion, stating:
“Whatever the merits of Justice Scalia’s opinion concurring in the judgment, this is the wrong case in which to address them. Petitioner has never argued that Belton should be limited ‘to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle, [citation omitted], nor did any court below consider Justice Scalia’s reasoning. [Citations omitted.] The question presented — ‘[w]hether the bright-line rule announced in New York v. Belton is confined to situations in which the police initiate contact with the occupant of a vehicle while that person is in the vehicle,’ Pet. for Cert. — does not fairly encompass Justice Scalia’s analysis. [Citation omitted.] And the United States has never had an opportunity to respond to such an approach. [Citation omitted.] Under these circumstances, it would be imprudent to overrule, for all intents and purposes, our established constitutional precedent, which governs police authority in a common occurrence such as automobile searches pursuant to arrest, and we decline to do so at this time.” 541 U.S. at 624 n.4.
Justice O’Connor wrote a separate concurring opinion stating that she joined in all but footnote 4 of the plurality opinion. Expressing
“As Justice Scalia forcefully argues, [citation omitted] lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel v. California, 395 U.S. 752[, 23 L. Ed. 2d 685, 89 S. Ct. 2034] (1969). That erosion is a direct consequence of Belton’s shaky foundation. While the approach Justice Scalia proposes appears to be built on firmer ground, I am reluctant to adopt it in the context of a case in which neither the Government nor the petitioner has had a chance to speak to its merit.” 541 U.S. at 624-25 (O’Connor, J., concurring in part).
Henning unconvincingly argues that three justices in Thornton expressing concern about the scope of Belton allowing police to search a car when a passenger has been arrested makes it likely that the search in this case would be held to be based on an unconstitutional statute. We do not agree.
It is clear that Thornton did not overrule Belton, and it is axiomatic that only the United States Supreme Court may overrule its precedent. Thus, Belton remains the law, and we would violate United States Supreme Court precedent if we attempted to do so. The Belton decision was decided in 1981, and it is firmly rooted in the search incident to arrest jurisprudence.
We followed
Belton
in Kansas beginning with
State v. Croft,
6 Kan. App. 2d 821, Syl. ¶ 1, 635 P.2d 972 (1981), which was expressly approved by our Kansas Supreme Court in
White,
230 Kan. at 680.
Belton
was not limited by Chief Justice McFarland’s opinion in
State v. Anderson,
259 Kan. 16, 23, 910 P.2d 180 (1996), which clearly held that while
“Belton
may expand the scope of the constitutionally permissible search of a vehicle,” it does not expand the permissible purpose of the search. The 2006 amendment in
There is no logical reason for us to not follow Belton. We hold that when the Kansas Legislature amended 22-2501(c), it adopted a constitutional statute which expanded the scope of the permissible purpose of a search incident to a lawful arrest in Kansas consistent with Belton.
We should not speculate on the result of an attack on
Belton
at some future date in the United States Supreme Court. Until the
Belton
rule is changed, it is binding precedent which we are obligated to follow. When we follow
Belton,
we find that the 2006 amendment to the wording of
The trial court’s rulings on the motions to suppress in both the Henning and the Zabrislde cases are reversed. Both cases are remanded to the district court for further proceedings consistent with this opinion.
Reversed and remanded.