State v. Bierer
| Decision Date | 27 December 2013 |
| Docket Number | No. 109,330.,109,330. |
| Citation | 49 Kan.App. 403,308 P.3d 10 |
| Parties | STATE of Kansas, Appellant, v. Daniel Everard BIERER, Appellee. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. A defendant must have standing to challenge a search or seizure. The burden is on the defendant to demonstrate a legitimate expectation of privacy in the place searched or the property seized. To meet this burden, the defendant must establish a subjective expectation of privacy and the expectation is one that society recognizes as reasonable.
2. Letters and other sealed packages are in the general class of effects in which the public has a legitimate expectation of privacy. Typically, a person who is neither a sender nor an addressee of a package cannot claim a reasonable expectation of privacy in such package, but if that person exercises possession and control over the package, then such person has standing to challenge a search of the package.
3. The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures, and a warrantless search is per se unreasonable unless it falls within a recognized exception.
4. Although the Kansas Supreme Court has recognized that it could extend state constitutional protections of § 15 of the Kansas Constitution Bill of Rights beyond the federal guarantees provided by the Fourth Amendment, it has declined to do so. The wording and scope of the two sections are identical for all practical purposes. If conduct is prohibited by one, it is prohibited by the other.
5. Kansas has previously recognized several exceptions to the Fourth Amendment search warrant requirement: consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances, of which hot pursuit is one example; the emergency doctrine; inventory searches; plain view; and administrative searches of closely regulated businesses.
6. A commonly applied exigent circumstance is the automobile exception, which allows the warrantless search of a vehicle when probable cause has been established to justify a search.
7. In California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), the United States Supreme Court held that the specific container exception no longer exists for automobile searches, stating that “[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.”
8. Kansas courts are obligated to follow the United States Supreme Court's interpretation and application of the Fourth Amendment.
9. We hold that California v. Acevedo compels the result in this case—officers can conduct a warrantless search of a package located in an automobile if they have probable cause to believe contraband or evidence is contained therein.
Shawn E. Minihan and Peter R. Glasser, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.
Paul J. Morrison and John A. DeMarco, of Morrison Law Firm, LLC, of Olathe, for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
In this appeal, the State seeks interlocutory review of the district court's suppression of evidence. The controversy surrounds a package mailed from Reno, Nevada, deemed suspicious by a United States postal inspector and addressed to Shaun Boehm of Johnson County. A drug dog used by the Johnson County Sheriff's Department alerted to the package, and a warrant was prepared for the residence to which the package was addressed. The package was placed on the front step of the residence. Daniel Bierer arrived some time later, took the package from the front step, placed it in his vehicle, and drove away. Sheriff's deputies followed Bierer and stopped him after several miles. Bierer was arrested; the package was seized by law enforcement, opened without a warrant, and found to contain several bundles of marijuana. Bierer was charged with one count of distribution of marijuana and one count of drug tax stamp violation.
On appeal, the State contends Bierer did not have standing to challenge the search and seizure and, even if he did have standing, the officers had probable cause to search the package without a search warrant. Moreover, the State argues the good-faith exception to the exclusionary rule applies. Bierer argues the search of the package was unlawful without a warrant. Because we find that the sheriff's deputies had probable cause to search the package located in Bierer's automobile, and therefore did not need a warrant, we must reverse the district court and remand for further proceedings.
On June 21, 2012, United States Postal Inspector Justin Lewis inspected a suspicious package addressed to “Shaun Boehm.” Based on Lewis' prior experience as a narcotics investigator, he believed the package contained drugs. The package was mailed from Reno, Nevada, which is close to the California border where medical marijuana is grown legally. The package was taped at all exposed seams, which Lewis believed was done to mask the odor of drugs. The return address was valid, but the sender's name was not associated with the return address. Further, the postage on the package was $94.50, but the sender waived signature, meaning no one had to sign for the package.
Lewis contacted Detective Antonio Garcia of the Johnson County Sheriff's Department to have his K–9, Franz, sniff the package for narcotics. Franz is a passive alert K–9 and is trained to sit upon locating the odor of narcotics. The officers lined up several packages for Franz to sniff, but Franz alerted only to the package addressed to “Shaun Boehm.” Lewis then contacted Deputy Mark Burns, also with the Johnson County Sheriff's Department, who prepared a search warrant for the residence to which the package was addressed and began preparations for a controlled delivery of the package.
On June 22, 2012, Lewis knocked on the door of the residence, but no one responded. Lewis left the package at the front door of the residence and left. Later, Bierer arrived at the residence, took the package from the porch, placed the package in his vehicle, and drove away.
Deputies in unmarked police cars began to follow Bierer. After several miles, Deputy Joshua Theiss initiated a traffic stop of Bierer's vehicle. Theiss told Bierer that he had a chip in his windshield and asked him to step out of the vehicle. When Bierer stepped out of his vehicle, Theiss arrested him. Bierer was the only occupant in the vehicle.
Theiss testified that he did not know if Bierer's windshield was actually obstructed, but another officer told him that it was. Theiss said that he stopped the vehicle and arrested Bierer solely because he had the package in his vehicle.
Burns looked inside the vehicle and saw the package in the back seat. Because there was heavy traffic on the road, officers transported Bierer's vehicle to the New Century Detention Center to conduct a warrantless search of the vehicle. Burns was present when the package was opened. The package contained another box wrapped in birthday wrapping paper. Inside the box were 10 food-saver bags wrapped inside 4 trash bags, which contained bundles of marijuana.
On cross-examination, Burns stated that he preferred to get a search warrant for the package, but the decision was made not to get one. The deputies believed someone from the home was going to take the package from the front porch.
On June 23, 2012, the State filed a complaint charging Bierer with one count of distribution of marijuana and one count of drug tax stamp violation. On September 18, 2012, Bierer filed a motion to suppress claiming the search and seizure of the sealed package containing the marijuana was unlawful. The State filed a response alleging, inter alia, Bierer did not have standing to challenge the search and the search was lawful. Thereafter, Bierer filed a supplemental brief on the motion to suppress alleging, inter alia, he did have standing to challenge the search and California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), had not been adopted in Kansas. On November 27, 2012, the district court heard argument and testimony on the motion to suppress then took the motion under advisement. On January 7, 2013, the district court issued its order granting Bierer's motion to suppress.
The State timely filed an interlocutory appeal.
In reviewing a district court's ruling on a motion to suppress, this court applies a bifurcated standard of review. This court accepts the factual findings of the district court if they are supported by substantial competent evidence. Then, this court reviews the district court's legal conclusions based upon those findings of fact de novo. State v. Sanchez–Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012).
The State argues that Bierer lacked standing to challenge the search because his name was not on the package and he obtained the package from someone else's residence. Bierer contends that he was in lawful possession of the vehicle searched and had a possessory interest the package seized. We agree with the district court and Bierer that he had standing to challenge the search of the package.
The district court, relying on State v. McCammon, 45 Kan.App.2d 482, 484–85, 250 P.3d 838,rev. denied 292 Kan. 968 (2011), ruled that Bierer had
A defendant must have standing to challenge a search or seizure. 45 Kan.App.2d at 484, ...
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