State v. Boone

• Citation: 220 Kan. 758,556 P.2d 864
• Decision Date: 06 November 1976
• Docket Number: No. 48266,48266
• Parties: STATE of Kansas, Appellee, v. Richard B. BOONE, Appellant.
• Court: United States State Supreme Court of Kansas

Page 864

556 P.2d 864

220 Kan. 758

STATE of Kansas, Appellee, v. Richard B. BOONE, Appellant.

No. 48266.

Supreme Court of Kansas.

Nov. 6, 1976.

Syllabus by the Court

1. The stop and frisk statute, K.S.A. 22-2402(1), allows a law enforcement officer to stop any person in a public place, without making an arrest, when he reasonably suspects that the person has committed a crime.

2. The Fourth Amendment to the United States Constitution and Section Fifteen of the Bill of Rights of the Kansas Constitution which proscribe 'unreasonable' searches and seizures apply to stop and frisk procedures. The central inquiry is the reasonableness, under all circumstances, of a particular governmental invasion of a citizen's personal security.

3. Under appropriate circumstances, a police officer may approach and stop a person in an appropriate manner for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.

4. The stop authorized by K.S.A. 22-2402(1) requires that a law enforcement officer must have prior knowledge of facts or observe conduct of a person which causes the officer to reasonably suspect that such person is committing, has committed, or is about to commit a crime. (Following State v. Jackson, 213 Kan. 219, 515 P.2d 1108.)

5. Probable cause to justify an arrest without a warrant exists when the facts and circumstances known to the officer are sufficient to warrant a man of reasonable caution in the brlief that an offense has been committed.

6. There can be a 'seizure' of a person in the Fourth Amendment and Section Fifteen sense even when there is no formal arrest.

7. 'Arrest' as defined in the Kansas Code of Criminal Procedure contemplates more than the temporary restraint of a person by a law enforcement officer. It is the restraint of a person in order that he or she may be forthcoming to answer for the commission of a crime.

8. Objects falling in the plain view of an officer who has the right to be in a position to have that view are subject to seizure and may be introduced into evidence. Such a view does not constitute a search.

9. Probable cause to search an automobile exists when there are facts and circumstances to warrant a reasonable prudent man to believe that the automobile contains contraband or items which offend against the law. If there is probable cause to search an automobile, such search need not be incidental to or contemporaneous with an arrest.

10. Error in admitting evidence without proper foundation or preliminary proof may be cured by the subsequent introduction of the requisite preliminary proof.

11. In a trial of multiple counts, each crime charged is a separate offense and the jury must decide each charge separately on the evidence and the law applicable to it, uninfluenced by their decision as to any other charge.

12. Where the instructions are not included in the record on appeal, and where there is no contention to the contrary, this court assumes the instructions given were correct and that the jury was properly instructed as to how it should consider the evidence as to each separate offense charged.

13. Statements obtained in violation of the procedural safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, are inadmissible in the prosecution's case in chief as substantive evidence to prove guilt or innocence.

14. A statement made by an accused after receiving his Miranda warnings and after asking to see his attorney, but before an attorney is present, may be used for impeachment purposes where the accused's testimony at trial is inconsistent with the statement and there is no evidence that the statement given was involuntary or coerced.

15. A request for an instruction is required to be in writing under K.S.A. 22-3414(3). There is no statutory provision for an oral request for an instruction to be given. (Following State v. Reed, 213 Kan. 557, 516 P.2d 913.)

16. Annulment of conviction under K.S.A. 21-4616 requires judicial inquiry and ruling.

James D. Hopper, Wichita, argued the cause and was on the brief for appellant.

Christopher A. Randall, Asst. Dist. Atty., argued the cause and Curt T. Schneider, Atty. Gen., Keith Sanborn, Dist. Atty., and Robert L. Kennedy, Jr., Asst. Dist. Atty., were on the brief for appellee.

FATZER, Chief Justice:

This is an appeal from a conviction by jury of aggravated robbery (K.S.A. 21-3427).

At approximately 2:15 a.m. on August 9, 1974, two maksed individuals entered the Town & Country Market at 600 South Oliver. One wore a fatigue jacket and what appeared to be a gas mask and brandished a double barreled sawed off shotgun. The other's head was covered with a ski mask. One store employee and a customer were in the store. Within a few minutes, the robbers took the money from the cash register, the safe and from the customer's purse and fled.

At 2:30 a.m., Wichita Police Officers Meyers and Knard, who were patrolling in the general area, were notified of the robbery. They drove to the robbery scene, and after conferring briefly with another officer already there, started circulating in the area. In a few minutes, the robbers' description came over the radio: two white males, one believed blood wearing a gas mask and army fatigue jacket; the second was larger and wore a dark colored ski mask. After a few more minutes the officers decided to return to a residence in the same area of the city where at approximately 2:00 a.m. that morning, they had seen the defendant Richard Boone coming out of the house as they drove by. They thought he had left the address in a tan stationwagon. The officers knew Boone had been involved in prior robberies and thought he might have been involved in this one.

Arriving at 4616 Ross Parkway at approximately 3:00 a.m., the officers found the house dark and no car on the street. They parked in an alcove across the street with the front of their marked patrol car about flush with the street and waited. It was raining. In a few minutes the tan stationwagon approached from the east. As it passed, the officers turned on their headlights, and the startled driver, Richard Boone, looked right at them. They pulled in behind Boone, and both cars stopped on the street in front of 4616 Ross Parkway. Boone immediately got out of the car and stood beside it. The officers got out of their car and approached Boone with guns drawn. Officer Knard advised Boone they were stopping him because there had just been a robbery, directed Boone to put his hands on the car and proceeded to give him a pat down for weapons. While this was going on, Officer Meyers went to the other side of the car and looked in through the windows aided by his flashlight. On the front floor board he observed a twenty dollar bill and a five dollar bill paperclipped together; the bills were wet. On the back floor board he observed what looked like a gas mask. He advised Officer Knard what he had found. Knard handcuffed Boone and then advised him of his rights under the Miranda decision. Knard asked Boone if he understood the rights, and Boone answered in the affirmative. Knard then asked Boone if, 'having these rights in mind,' he wished to talk to the officers. Boone's only response was that he wanted to talk to his attorney. Boone was then taken back and put in the patrol car out of the rain.

Officers Meyers and Knard requested a laboratory investigator to examine the car Boone had been driving. After another officer arrived to watch the car, they left, taking Boone and the gas mask with them, and proceeded back to the scene of the robbery. Shortly thereafter, a laboratory investigator for the Wichita Police Department arrived at 4616 Ross Parkway. His inspection of the tan Ford stationwagon revealed money later identified as coming from the robbed store.

Arriving at 600 South Oliver, Officers Knard and Meyers showed Boone and the gas mask to the robbery victims. They could not identify Boone, but said the mask looked like the one used in the robbery. Boone was then taken to the police station and was subsequently charged by information with two counts of aggavated robbery.

The district court consolidated for trial the instant information with another information against the defendant for an aggravated robbery on June 25, 1974. A jury trial commenced on December 3, 1974, with separate counsel defending Boone on each robbery charge. For the August 9, 1974, robbery, the jury returned a verdict of guilty on one count of aggravated robbery. The defendant now appeals this conviction contending four errors require reversal. The defendant made a separate appeal from his conviction for the June 25, 1974, robbery in State v. Boone, Kan. 556 P.2d 880, this day decided.

The appellant's first point on appeal is that it was prejudicial error to admit certain items into evidence, following the overruling of his oral motion to suppress, and over the objection of counsel, because they were the fruits of an illegal search. The items appellant contends were improperly admitted are the gas mask taken from the car by the arresting officers, money and a brown paper sack discovered in the car by the Wichita Police Department laboratory investigator, and money taken from the appellant at the police station. The appellant argues that his arrest was illegal because it was not based on probable cause and that the subsequent search pursuant to the illegal arrest was likewise illegal and its fruits tainted.

The appellant correctly points out that K.S.A. 22-2401 requires probable cause for an officer to make an arrest without a warrant. Probable cause to justify an arrest or search without a warrant exists when the facts and circumstances known to the officer are sufficient to warrant a man of reasonable caution in the belief that an offense has been committed. State v. Morin, 217 Kan. 646, 538 P.2d 684. Appellant contends the officers stopped and arrested him on mere suspicion....