State v. Torres, 114,269

CourtUnited States State Supreme Court of Kansas
Citation421 P.3d 733
Docket NumberNo. 114,269,114,269
Parties STATE of Kansas, Appellee, v. Seth TORRES, Appellant.
Decision Date06 July 2018

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Susan E. Bandy, legal intern, was with him on the brief for appellant.

Carissa E. Brinker, assistant county attorney, argued the cause, and Marc Goodman, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by Luckert, J.:

Seth Torres sold methamphetamine to a confidential informant, Justin Barrett, while law enforcement officers observed them. Barrett paid for the methamphetamine with $220 cash provided by law enforcement officers who had recorded each bill's serial number. After the drug deal, Torres briefly entered a nearby apartment before he got into the passenger seat of a car and left. A law enforcement officer followed the car and pulled it over. Another officer formally arrested Torres and searched the car, finding $200 of the recorded money. The State charged Torres, who moved to suppress the evidence seized in the car search. He argued the officer conducted an illegal, warrantless search without probable cause or a reasonable basis to believe the money used in the drug buy would be in the car rather than the apartment he had entered. The district court denied his motion, and a jury convicted him of methamphetamine distribution and illegal use of a communication device to facilitate a drug transaction. Torres appealed, and the Court of Appeals affirmed his convictions.

See State v. Torres , 53 Kan. App. 2d 258, 271, 386 P.3d 532 (2016).

Before the Court of Appeals, Torres first argued the district court erred in denying his motion to suppress evidence because the search occurred without a warrant and thus violated the Fourth Amendment to the United States Constitution. The Court of Appeals recognized that courts generally view an officer's warrantless search as unconstitutional unless it meets a warrant exception. But the Court of Appeals found the search fell within the automobile and search-incident-to-lawful-arrest exceptions to the warrant requirement. 53 Kan. App. 2d at 263-66, 386 P.3d 532. The Court of Appeals rejected a third exception the district court had cited—the plain-view exception. 53 Kan. App. 2d at 266, 386 P.3d 532.

Based on our review, we conclude the law enforcement officer conducted a constitutional search under the United States Supreme Court's holding in Arizona v. Gant , 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), relating to the search-incident-to-lawful-arrest exception in a vehicle context. Because we reach that conclusion, we need not determine whether other warrant exceptions apply.

Torres also argued before the Court of Appeals that the State had failed to establish venue as required to convict him of illegal use of a communication device to facilitate a drug transaction. The Court of Appeals held sufficient evidence established Torres called Barrett knowing Barrett was in the City of Emporia, which is located in Lyon County, and thus that evidence sufficiently proved venue. 53 Kan. App. 2d at 267-69, 386 P.3d 532. We affirm that holding.

FACTS AND PROCEDURAL BACKGROUND

The October 9, 2014 controlled buy between Barrett and Torres was set up after Barrett agreed to cooperate with law enforcement officers in exchange for the officers putting in a good word for him with the Lyon County Attorney, who was prosecuting him on unrelated drug charges. At trial in this case, Emporia police officer Dominick Vortherms, Lyon County sheriff's deputy Heath Samuels, and Barrett testified about the controlled drug buy and the events that followed.

At 5:51 p.m. on the day of the drug deal, Barrett used his cell phone to call Torres on his cell phone. Barrett called from the Emporia Police Department while observed by Vortherms. Once Torres agreed to sell methamphetamine to Barrett a few hours later, officers searched Barrett and his car to be sure Barrett had no drugs or money. They then gave Barrett $220 in cash. Officers had recorded the serial number of each bill. The officers also wired Barrett so they could hear his conversations. Vortherms and Samuels separately followed Barrett from the police station to the house in Emporia where Torres and Barrett had arranged to meet.

Barrett drove to the agreed-upon location. Once there, at 8:13 p.m., Torres telephoned Barrett and told him to drive to an Emporia apartment complex. Barrett did so, and both officers separately followed Barrett to the new location and set up to observe the drug deal and traffic in and out of the complex. Between 8:23 p.m. and 8:25 p.m., Barrett's cell phone logged five calls or texts between Barrett and Torres. Torres began one, and Barrett began the other four.

Samuels established an observation point in the apartment complex from which he could see Barrett. Samuels saw a white car pull into the parking lot of the apartment complex, and Vortherms confirmed to Samuels that Torres was in the white car. Barrett got out of his car and walked over to Torres. Although Samuels could see the two men, he could not tell whether the men shook hands or exchanged drugs and money.

Barrett got into his car and drove away. Vortherms followed Barrett back to the police station where Barrett gave Vortherms a bag containing a crystal substance. Vortherms searched Barrett and his car for drugs and money; Barrett did not have any of the recorded cash or drugs in his car or on his person. At 8:51 p.m., Vortherms took a photo of Barrett's cell phone log. He also field tested the substance in the bag and determined it was methamphetamine. Lab technicians later confirmed the bag contained about 3.3 grams of methamphetamine.

Meanwhile, Samuels stayed at the apartment complex where he watched Torres enter one of the apartments. At some point, Samuels moved his observation point to an unmarked car in the parking lot, and Vortherms updated Samuels about the results of the field test. After a few minutes, Samuels saw Torres leave the apartment and get into the passenger side of a car. Samuels asked another officer to follow and stop the car.

Samuels continued to observe the apartment until another officer arrived to take over. Samuels then drove to the scene of the vehicle stop. When Samuels arrived, officers had secured both Torres and the driver in police cars. Samuels formally arrested Torres and read him his Miranda rights. Torres asked to speak with an attorney, and another officer took Torres to jail. Samuels did not have a warrant to search the car, so he asked the driver for permission to do so. The driver refused.

Samuels then looked into the car with a flashlight. He saw cash rolled in a manner similar to the practice of other drug dealers Samuels had encountered as a narcotics officer. The roll of cash was sticking out of an open, black sunglasses case on the front passenger floorboard. Samuels seized the cash, which included $200 of the recorded money Barrett used to buy the drugs.

Before trial, Torres asked the district court to suppress the evidence found in the car. The district court denied his motion and admitted the evidence over Torres' objection at trial. The jury convicted Torres of methamphetamine distribution and unlawful use of a communication device (a cell phone) to commit a drug felony. The district court sentenced Torres to 51 months' imprisonment with 36 months' postrelease supervision for distribution of methamphetamine, concurrent with an 8-month sentence for unlawful use of a communication device.

As we have discussed, Torres appealed. The Court of Appeals affirmed, and this court granted review of the Court of Appeals' decision.

ANALYSIS

Before us, Torres renews the two issues he argued to the Court of Appeals and now points out his disagreements with the Court of Appeals' analysis. We reject his arguments.

I. The Court of Appeals correctly upheld the denial of Torres' motion to suppress evidence.

Torres first argues his motion to suppress evidence was improperly denied. He points out that warrantless searches are presumptively unreasonable. This argument arises because " ‘the ultimate touchstone of the Fourth Amendment is "reasonableness." " Riley v. California , 573 U.S. ––––, ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014). And the United States Supreme Court has determined that " [w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, ... reasonableness generally requires the obtaining of a judicial warrant.’ " 134 S.Ct. at 2482. As the Supreme Court has explained: "Such a warrant ensures that the inferences to support a search are ‘drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ " 134 S.Ct. at 2482. If law enforcement officers do not have a warrant, "a search is reasonable only if it falls within a specific exception to the warrant requirement." 134 S.Ct. at 2482. The State carries the burden to justify a warrantless search. See Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ; State v. Neighbors , 299 Kan. 234, 239-40, 328 P.3d 1081 (2014).

Here, the district court relied on three exceptions to the warrant requirement: search incident to lawful arrest, probable cause plus exigent circumstances under the automobile exception, and plain view. On appeal from that decision, the Court of Appeals held Samuels had constitutionally conducted the search under the search-incident-to-lawful-arrest and automobile exceptions to the warrant requirement. But the Court of Appeals refused to apply the plain-view exception. See Torres , 53 Kan. App. 2d at 263-66, 386 P.3d 532. The State did not cross-petition for review from the Court of Appeals' plain-view holding. Because this court generally does not consider issues not raised in a petition for...

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