State v. Griffin

Decision Date15 June 1979
Docket NumberNo. 50421,50421
Citation3 Kan.App.2d 443,596 P.2d 185
PartiesSTATE of Kansas, Appellee, v. Elliott GRIFFIN, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. Automobiles, because of their highly moveable nature, may be searched whenever the officer has probable cause to believe the vehicle contains items that the officer is entitled to seize. The authority to search does not necessarily depend upon the right to arrest the driver or the occupants. Nor does the authority to arrest necessarily depend upon the right to search, for even if the search was impermissible and the evidence seized as a result of the search is suppressed, the validity of the arrest stands separate and apart from the validity of the seizure.

2. The granting of probation is exclusively a function of the trial court and a decision denying probation is not subject to review on appeal.

3. A sentence imposed by the trial court will not be set aside on appeal if it is within the statutory limits, unless it is so arbitrary and unreasonable that it constitutes an abuse of judicial discretion.

4. In an appeal from a conviction of possession of heroin, the record is examined and it is Held : (1) The trial court did not err in denying defendant's motion to suppress evidence, in denying the motion to disqualify the trial judge, in denying motions to dismiss and for mistrial or for sequestration of the jury; and (2) The trial court abused its discretion in refusing to permit defendant's counsel to interview jurors in connection with the motion for new trial.

Steven L. Opat, Public Defender, Junction City, for appellant.

Michael E. Francis, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before SPENCER, P. J., and SWINEHART and MEYER, JJ.

SPENCER, Judge:

Defendant was convicted of possession of heroin, K.S.A.1978 Supp. 65-4127a.

On the afternoon of November 18, 1977, Junction City police officer Pastiva was informed by defendant's father that defendant had been in the father's place of business that morning, had pointed a handgun at him, and had threatened to kill him. The senior Griffin also gave Pastiva a description and the tag number of the car in which defendant had left the premises. Less than one hour later the officer found the car, in which defendant was then a passenger, as it was pulling into a parking space. The car had been voluntarily stopped and the officer approached and asked the driver for his license. Defendant got out of the car on the passenger's side and Pastiva went around and frisked him. Finding no weapon on defendant's person, the officer entered the vehicle, felt under the front seat, and found a .22 caliber handgun on the passenger side of the automobile. Defendant was placed under arrest for possession of a firearm, in violation of a city ordinance. During booking procedures at police headquarters and while an inventory of defendant's personal effects was being made, eight balloons suspected of containing opiates were discovered in defendant's coat. Charges were filed alleging possession of opiates and aggravated assault. No charge was made under the city ordinance and, subsequently, the aggravated assault charge was dismissed.

It is argued that the court erred in the denial of defendant's motion to suppress evidence. Defendant reasons that, without the evidence seized in the search of the automobile, there would have been no authority for the arrest and, had there been no arrest, defendant would not have been subject to a personal effects inventory which resulted in discovery of the heroin on his person.

Under the Fourth and Fourteenth Amendments to the United States Constitution, searches conducted without warrants are per se unreasonable, subject only to a few specifically established and well-delineated exceptions. State v. Clark, 218 Kan. 726, 730, 544 P.2d 1372 (1976); State v. Schur, 217 Kan. 741, Syl. P 1, 538 P.2d 689 (1975). One such exception was established in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), where it was held that automobiles, because of their highly moveable nature, may be searched whenever the officer has probable cause to believe the vehicle contains items that the officer is entitled to seize. The authority to search does not necessarily depend upon the right to arrest the driver or the occupants. State v. Mall, 216 Kan. 287, 532 P.2d 1048 (1975); State v. McCollum, 211 Kan. 631, 507 P.2d 196 (1973); State v. Robinson, 203 Kan. 304, 454 P.2d 527 (1969). Nor does the authority to arrest necessarily depend upon the right to search, for even if the search was impermissible and the evidence seized as a result of the search is suppressed, the validity of the arrest stands separate and apart from the validity of the seizure. See State v. Stewart, 225 Kan. 410, 591 P.2d 166 (1979).

The trial court found there was insufficient time to obtain a search warrant; the vehicle was capable of being moved in a matter of seconds; there was probable cause to search for the firearm based upon information previously given the police; on finding the weapon, there was probable cause to arrest defendant for unlawful possession of that firearm; and the subsequent inventory of defendant's personal effects was proper.

Our review of the record reveals substantial competent evidence to support the findings of probable cause, not only to search for the weapon with which defendant allegedly threatened his father, but also for the arrest of defendant. See State v. Johnson, 223 Kan. 185, 573 P.2d 595 (1977); State v. Brocato, 222 Kan. 201, 563 P.2d 470 (1977); State v. Barnes, 220 Kan. 25, 551 P.2d 815 (1976); State v. Curtis, 217 Kan. 717, 538 P.2d 1383 (1975). It follows that the inventory of defendant's personal effects at police headquarters, which resulted in discovery of heroin on his person, was proper.

Following the motion to suppress, defendant filed an affidavit of prejudice seeking to disqualify the trial judge. Arguments were presented to the administrative judge who ruled the affidavit insufficient.

In determining whether to disqualify a trial judge for bias or prejudice, the hearing judge is to determine whether the affidavit states facts sufficient to create a fairly supportable belief that a fair trial cannot be had due to that bias or prejudice. Referral to the adverse decision at the hearing in this case is alone not enough. The allegation as to a prior proceeding before the same judge in and of itself is not enough and stands on the same footing as a prior adverse ruling. See Oswald v. State, 221 Kan. 625, 561 P.2d 838 (1977); Hulme v. Woleslagel, 208 Kan. 385, 493 P.2d 541 (1972); Schoonover v. State, 2 Kan.App.2d 481, 582 P.2d 292, Rev. denied 224 Kan. clxxxviii (1978). Defendant's assertion of error on this point is without merit.

Defendant filed a motion to dismiss based upon the allegation that the ordinance under which he was arrested is unconstitutional. The ordinance was before the Supreme Court in City of Junction City v. Lee, 216 Kan. 495, 532 P.2d 1292 (1975), and its validity was upheld. We are advised that the ordinance has since been declared unconstitutional by the District Court of Geary County on grounds and for reasons not presented or considered in City of Junction City v. Lee. In any event, the State takes the position that constitutionality of the ordinance is not material and we agree. Defendant is not here charged with a violation of the ordinance, and the initial arrest under the ordinance as it then existed is not rendered invalid absent some showing that the police officials lacked a good faith belief in the validity of the ordinance at the time the...

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3 cases
  • State v. Castillo
    • United States
    • Court of Appeals of Kansas
    • 7 d5 Junho d5 2013
    ...are not in themselves grounds for recusal. Smith v. Printup, 262 Kan. 587, Syl. ¶ 7, 938 P.2d 1261 (1997); see State v. Griffin, 3 Kan.App.2d 443, 445, 596 P.2d 185 (1979); Oswald v. State, 221 Kan. 625, Syl. ¶ 2, 561 P.2d 838 (1977). Because bias “refers to the judge's mental attitude towa......
  • Cornejo v. Probst, 51809
    • United States
    • Court of Appeals of Kansas
    • 2 d4 Julho d4 1981
    ...three cases to support their respective contentions. They are State v. McDonald, 222 Kan. 494, 565 P.2d 267 (1977); State v. Griffin, 3 Kan.App.2d 443, 596 P.2d 185 (1979); and Gannaway v. Missouri-Kansas-Texas Rld. Co., 2 Kan.App.2d 81, 575 P.2d 566 (1978). Appellants contend these cases c......
  • Lindquist v. Ayerst Laboratories, Inc.
    • United States
    • United States State Supreme Court of Kansas
    • 1 d6 Março d6 1980
    ...belief he will not obtain a fair trial. See Oswald v. State, 221 Kan. 625, 628-629, 561 P.2d 838 (1977); State v. Griffin, 3 Kan.App.2d 443, 445, 596 P.2d 185 (1979). The question of the sufficiency of the affidavit is one of law for the court to determine but "(p)revious adverse rulings of......

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