State v. Abbott

• Decision Date: 30 January 2004
• Docket Number: No. 88,603.,88,603.
• Citation: 277 Kan. 161,83 P.3d 794
• Parties: STATE OF KANSAS, Appellee, v. MICHAEL ABBOTT, Appellant.
• Court: Kansas Supreme Court

277 Kan. 161

83 P.3d 794

STATE OF KANSAS, Appellee, v. MICHAEL ABBOTT, Appellant.

No. 88,603.

Supreme Court of Kansas.

Opinion filed January 30, 2004.

Patrick H. Dunn, assistant appellate defender, argued the cause and was on the briefs for appellant.

Franklin T. Bruce, of Hutchinson, argued the cause, and Thomas R. Stanton, deputy district attorney, Keith Schroeder, district attorney, and Phill Kline, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

GERNON, J.

We granted Michael Abbott's petition for review from a Court of Appeals' decision which affirmed his convictions of one count each of possession of methamphetamine with intent to sell and possession of drug paraphernalia.

Abbott became the focus of a drug investigation when a confidential informant (CI) advised Detective Howard Shipley that Abbott would be traveling in a two-tone van from Hutchinson to Haven, giving a specific date and time, to purchase methamphetamine from someone named Greg.

The person named Greg was known to Detective Shipley as Greg Proffitt, who lived near Haven and who was known as a seller of methamphetamine.

Detective Shipley parked near the Proffitt house in an unmarked car. Detective Shipley was called by the informant, who informed him that Abbott would be later than he had previously thought and that Abbott had just left Hutchinson.

Approximately 45 minutes after the call from the informant, Detective Shipley observed a two-tone tan van arrive at the Proffitt house. The van was there for approximately 30 minutes. When the van left, Detective Shipley followed it and eventually stopped the van and asked its occupants for identification. The van had three rows of seating. The front two rows consisted of two seats each. The third row was a bench seat. Abbott was seated on the bench seat. One of the van's owners was driving, and another owner was seated in the middle row. Detective Shipley determined that there were no outstanding warrants and then asked the occupants to exit the vehicle. Detective Shipley checked the individuals for weapons and then searched the van. He discovered a glass pipe, a set of electronic scales, a pouch with ziplock baggies, a razor blade, and a business card folded into a funnel shape. All of these items were found in the rear pockets of the two seats in the middle of the van. Abbott was arrested and transported to the local law enforcement center for processing. A pouch of methamphetamine was discovered in his underwear.

Abbott was charged with and found guilty at a bench trial of possession of methamphetamine with intent to sell and possession of drug paraphernalia. Before his trial, the trial court denied his motion to suppress. The Court of Appeals affirmed his convictions in State v. Abbott, 31 Kan. App. 2d 706, 71 P.3d 1173 (2003). We granted Abbott's petition for review.

Probable Cause to Arrest

Abbott frames his first issue on appeal as whether there was an unreasonable search and seizure, i.e., a Fourth Amendment to the United States Constitution issue. We believe the starting point for any discussion is whether there was probable cause to support Abbott's arrest. We must first determine whether Abbott was lawfully arrested and, if so, whether the warrantless search which followed was permissible under the facts and circumstances.

Warrantless searches incident to an arrest are permissible. Police may search both the person and the immediate area surrounding the person contemporaneously with the arrest. State v. Payne, 273 Kan. 466, 475, 44 P.3d 419 (2002). This exception to the Fourth Amendment requirement for a warrant is codified at K.S.A. 22-2501, which provides:

"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 crime."

Pursuant to K.S.A. 2002 Supp. 22-2401(c)(1), a law enforcement officer may arrest a person without a warrant if the officer has probable cause to believe that the person is committing or has committed a felony. "`Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime.'" State v. Aikins, 261 Kan. 346, 355, 932 P.2d 408 (1997) (quoting State v. Grissom, 251 Kan. 851, Syl. ¶ 22, 840 P.2d 1142 [1992]). Because probable cause does not require evidence of every element of a crime, it must not be confused with proof beyond a reasonable doubt of guilt. Draper v. United States, 358 U.S. 307, 311-12, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959); Aikins, 261 Kan. at 355.

In Draper, 358 U.S. at 313, the United States Supreme Court stated:

"`In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' [Citation omitted.] Probable cause exists where `the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. [Citation omitted.]"

When determining whether probable cause exists, this court considers the totality of the circumstances, including all of the information in the officer's possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt. Payne, 273 Kan. at 474.

In Draper, a federal narcotics agent received a tip from a CI that Draper had traveled from Denver to Chicago by train for the purpose of purchasing heroin and that Draper would be returning to Denver by train on one of two specified mornings. The CI gave the agent a detailed description of Draper, his clothing, and his luggage and noted that Draper habitually "walked real fast." Because the narcotics agent had found the information from the CI to be reliable in the past, he waited at the train station on the specified dates for someone matching the description given by the CI. Draper exited a train from Chicago on one of the mornings specified and walked very quickly towards the exit. Draper had the exact physical attributes, clothing, and luggage matching the description given by the CI. The narcotics agent immediately arrested Draper and searched him, finding two envelopes of heroin in Draper's left hand. Draper sought to have the evidence suppressed, but the United States Supreme Court upheld the admission of the evidence, finding that the narcotics officer had probable cause to arrest Draper and had properly searched him incident to that arrest. 358 U.S. at 314. The Draper court focused on the CI's prior reliability; the CI's description of Draper's physical attributes including his appearance, clothing, luggage, and gait; the CI's accuracy in predicting Draper's activities; and the narcotics agent's confirmation of the CI's information. 358 U.S. at 313.

The Kansas Court of Appeals reached the same result in State v. Houze, 23 Kan. App. 2d 336, 930 P.2d 620, rev. denied 261 Kan. 1088 (1997). In Houze, law enforcement officers received a tip from a CI who had proven to be accurate in previous investigations. The CI advised the officers that Houze would arrive at a specified motel carrying drugs. In addition, the CI gave a description of Houze's car and license number and told the officer what time he would arrive. The CI also told the officers that he had contact with Houze on that day and that he had observed Houze with drugs. Based on this information, the officers awaited Houze's arrival at the motel in an unmarked vehicle, independently verifying the CI's tip when Houze arrived at the time and place and in the manner predicted by the CI. The officers later stopped Houze as he walked from his car into a residence, searched him without a warrant, discovered cocaine in his possession, and arrested him. The Houze court upheld the admission of the drug evidence, finding that the officers had probable cause to arrest Houze and that exigent circumstances justified his search and arrest without a warrant. 23 Kan. App. 2d at 338-41. The Houze court relied on the CI's previous accuracy in other investigations, the CI's accurate prediction of Houze's actions, the CI's accurate description of Houze's car, and the CI's personal basis for his knowledge. 23 Kan. App. 2d at 339. This case is analogous to Draper and Houze. Detective Shipley received information from a CI who he knew to be reliable. He verified the accuracy of the CI's information by performing surveillance at the location where the CI predicted Abbott would purchase drugs. Abbott arrived at the location in the manner and at the time predicted by the CI. In fact, the CI called during the surveillance to update Detective Shipley on Abbott's arrival time because Abbott was running behind. In addition to the CI's information, Detective Shipley knew that Abbott had sold methamphetamine to the CI prior to the date of his surveillance in Haven and that Abbott's destination was the home of a methamphetamine distributor.

Based on the CI's prior reliability, the CI's accurate prediction of Abbott's activities and description of the vehicle he would be in, and Detective Shipley's independent confirmation of the CI's information, there was probable cause to arrest Abbott when Detective Shipley stopped behind the van and verified that Abbott was inside. Because the van was mobile and the evidence could have been lost or destroyed before a search warrant could be obtained, there were exigent circumstances justifying Abbott's immediate arrest and the search of the van without a warrant. See Houze, 23 Kan. App. 2d at 340-41. The subsequent...