State v. Boggess

• Decision Date: 24 August 2018
• Docket Number: No. 111,361,111,361
• Citation: 425 P.3d 324
• Parties: STATE of Kansas, Appellee, v. Robin BOGGESS, Appellant.
• Court: Kansas Supreme Court

425 P.3d 324

STATE of Kansas, Appellee,
v.
Robin BOGGESS, Appellant.

No. 111,361

Supreme Court of Kansas.

Opinion filed August 24, 2018.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Joseph M. Penney, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

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

425 P.3d 326

Kimberly Motley allowed law enforcement officers to search a car she was driving. Robin Boggess was sitting in the front-passenger seat. On the passenger floorboard among clutter was a small, nondescript, black zipper bag. Inside, officers found methamphetamine, marijuana, and drug paraphernalia. They later learned the zipper bag belonged to Boggess.

The State charged Boggess with possession of methamphetamine, marijuana, and drug paraphernalia. Boggess asked the district court to suppress the evidence, claiming Motley had neither actual nor apparent authority to consent to a search of Boggess' belongings. But the State argued the officers reasonably believed Motley could consent to the search of the zipper bag. Following a hearing, the district court denied Boggess' motion and found her guilty on all counts. The Court of Appeals affirmed, and we granted review.

The question in this appeal is whether the facts available to the officers when Motley consented were sufficient to warrant a person of reasonable caution to believe Motley had authority over the passenger floorboard and the zipper bag. We conclude they were and affirm the district court's denial of Boggess' motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

Shortly before 8 p.m. on March 10, 2013, El Dorado police officers were dispatched to an address "for a possible disturbance that was getting ready to occur." Officer Christopher Jones arrived before other officers and waited at a location near the address. While waiting, Officer Jones saw a white Chrysler PT Cruiser pull up to the home.

When backup arrived, the officers approached the home. The Chrysler PT Cruiser was in the driveway, and two women were sitting in the front. Lieutenant Travis Pierce and Officer Jones approached the vehicle, while another officer spoke with the residents. Lieutenant Pierce, who approached the passenger side, noticed the passenger was "[t]witchy, jumpy. Unable to sit still." Similarly, Officer Jones observed the passenger was "being real fidgety, moving around a lot. Just kind of moving around as if there was no means to her motions." Based on his training and experience, Lieutenant Pierce thought the passenger was exhibiting signs of being under the influence of methamphetamine.

The officers identified Motley as the driver and Boggess as the passenger. They also discovered there was a child in the backseat. At this point, the officers did not know why they had been called to the address, so they began an inquiry. The residents eventually said that Motley and Boggess were there to collect a debt, and the residents were afraid there was going to be trouble. Lieutenant Pierce came to believe the debt was drug-related, though he never explained how he discerned this.

After surmising a crime had not been committed, Lieutenant Pierce returned Motley's and Boggess' identification cards and said they were free to leave. He claimed that Motley acknowledged they were free to leave, he turned away, and then "turned back to [Motley] and ... asked [her] if she had a moment to speak with [him]." She agreed, and Lieutenant Pierce asked Motley to step out of the vehicle. Once outside, he asked Motley for her consent to search the vehicle, and she said yes.

At the time he asked for her consent, Lieutenant Pierce and Motley were "near the rear bumper area" of the vehicle. Lieutenant Pierce could not recall if the car door was open, but the vehicle's windows were down. He claimed to have "spoke[n] loud enough that [Boggess] could hear" his request for consent from Motley.

Boggess was then asked to exit the vehicle. Although it was customary to do so, Lieutenant Pierce could not recall if Boggess was told they were going to search the car. He remembered telling Officer Jones that Motley had consented to a search of the vehicle. And Officer Jones believed Boggess "was

425 P.3d 327

right there next to the vehicle area" when he was told of Motley's consent.

Boggess took nothing with her when she left the vehicle. She neither claimed ownership of anything in the car, nor did she object to the search. While officers searched the vehicle, Boggess stood next to Officer Michael Moore about 5 feet behind the back bumper on the passenger side. From his vantage point, Officer Moore testified he could see the officers searching the vehicle.

Officer Jones searched the passenger side of the vehicle, and Lieutenant Pierce searched the driver's side and backseat. Lieutenant Pierce described the car as "very cluttered" with things like trash, fast food items, and several children's toys strewn throughout the vehicle. Similarly, Officer Jones said the interior was "fairly messy" and it looked "somewhat lived in."

On the floorboard next to the console was a 3- to 4-inch rectangular "black zipper type bag." It was resting on a boot and surrounded by a drink, some papers, food, lottery cards, and several other miscellaneous items. Nothing on the bag revealed who owned it. Also on the floorboard was an open purse. A small, tan, satchel-like bag was on the passenger seat.

Officer Jones first searched the zipper bag. It contained several plastic baggies of methamphetamine, a glass pipe containing a burnt residue, rolling papers, and a breath mints canister with marijuana in it. Next, Officer Jones searched the purse, which contained a black and white polka dot bag. That bag contained another glass pipe with a burnt botanical substance and a baggy of marijuana.

After Officer Jones searched the polka dot bag, he placed it on the roof of the vehicle. At this point, Boggess told Officer Moore that she did not authorize a search of that bag. Officer Moore approached Officer Jones and said Boggess did not want her purse searched. But Officer Jones responded that he had already found contraband in the zipper bag, so he continued his search, believing he had probable cause to do so.

During the hearing on Boggess' motion to suppress, defense counsel pressed Lieutenant Pierce and Officer Jones about whether they could discern who owned the bags. Lieutenant Pierce claimed he did not know they belonged to Boggess. And he refused to agree with defense counsel that it was probable they belonged to Boggess, "[d]ue to the overwhelming[ ] amount of items in the vehicle." Officer Jones acknowledged that he "made a ... pretty good, fair judgement, [sic ] that the purse" belonged to Boggess. But as for the zipper bag, he maintained he "had no idea" it belonged to Boggess. According to Officer Jones: "[A]s messy as the vehicle was, I didn't know whose was whose."

The State charged Boggess with possession of methamphetamine; possession of marijuana; and possession of drug paraphernalia. Before trial, Boggess moved to suppress the evidence, arguing Motley's general consent to search the vehicle did not extend to her bags. Boggess also argued Motley lacked apparent authority to consent to the search of her bags because ownership of the zipper bag where contraband was first found was, at best, ambiguous. Consequently, she argued the officers had to inquire further about who owned the zipper bag before searching it. To the contrary, the State argued the search of the zipper bag "was reasonable and ... within the apparent scope of the consent search."

After an evidentiary hearing, the district court denied Boggess' motion. It found "[t]he officers in this case could have reasonably believed that the black bag ... belonged to the driver of the car, who did give consent. The driver had apparent authority to consent to the search, although she lacked actual authority." Afterwards, Boggess waived her right to a jury trial, and the case proceeded to a bench trial on stipulated facts. The court found her guilty as charged. It sentenced Boggess to 12 months' probation with court services and imposed an underlying 11-month prison sentence for the possession of methamphetamine count. Boggess received concurrent 12-month jail sentences for the remaining counts. The Court of Appeals affirmed Boggess' convictions, agreeing that Motley had apparent authority to consent to the search. State v. Boggess , No. 111361, 2016 WL 6823379, at *11 (Kan. App. 2016) (unpublished opinion).

425 P.3d 328

We granted Boggess' petition for review. Our jurisdiction is proper. See K.S.A. 60-2101(b) ("[A]ny decision of the court of appeals shall be subject to review by the supreme court[.]").

ANALYSIS

Motley had apparent authority to consent to the search of the zipper bag.

Boggess argues the district court should have suppressed the evidence found in the search of the vehicle because it was unreasonable for the officers to believe Motley's consent extended to the search of the zipper bag. That is, Boggess argues Motley lacked apparent...