State v. Boster

• Decision Date: 17 July 1975
• Docket Number: No. 47655,47655
• Citation: 539 P.2d 294,217 Kan. 618
• Parties: STATE of Kansas, Appellee, v. Jack BOSTER, Appellant.
• Court: Kansas Supreme Court

Page 294

539 P.2d 294

217 Kan. 618

STATE of Kansas, Appellee, v. Jack BOSTER, Appellant.

No. 47655.

Supreme Court of Kansas.

July 17, 1975.

Syllabus by the Court

1. One who seeks to challenge the legality of a search as a basis for suppressing relevant evidence must claim either to have a proprietary or possessory interest in the premises searched, or to have owned or possessed the seized property.

2. One who is driving a vehicle at the time of his arrest, with the apparent consent of the owner, has a sufficient possessory interest in the vehicle to assert his constitutional rights against unreasonable search and seizure.

3. The Fourth Amendment to the Constitution of the United States and Section 15 of the Bill of Rights of the Constitution of the State of Kansas governs all intrusions by agents of the public upon the privacy of an individual.

4. The burden of proof to show the lawfulness of a Fourth Amendment search and seizure rests upon the state.

5. An inventory search of an automobile cannot be valid unless the police initially obtain lawful custody of the vehicle.

6. In the absence of a search incident to a valid arrest, and in the absence of probable cause for a search, a good faith inventory search of a lawfully impounded automobile is limited to items in plain sight.

7. In a prosecution for burglary and theft the record is examined and it is held: The trial court erred in refusing to sustain defendant's motion to suppress all evidence obtained as a result of the inventory search of the vehicle driven by defendant, together with defendant's confession of his participation in the crime.

J. Stanley Hill, Hutchinson, argued the cause and was on the brief for appellant.

Richard L. Hathaway, Asst. County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Porter K. Brown, County Atty., were with him on the brief for appellee.

OWSLEY, Justice:

Defendant, Jack Boster, appeals from a criminal conviction of burglary (K.S.A. 21-3715) and theft (K.S.A. 21-3701). The principal issue before this court concerns the constitutional validity of an inventory search of a vehicle driven by defendant and impounded by the police pursuant to defendant's arrest on a traffic violation. Because of the relevance of the circumstances to the constitutional question, the following facts are significant to this appeal.

On the night of November 22, 1973, a burglary took place at Crupper's Furniture and Appliance Store in Reno County, Kansas. Taken from the store were numerous home entertainment items, including television sets and stereos. The following day, George Overstreet, a patrolman with the Salina Police Department, received a dispatch over the police radio notifying him that two suspicious vehicles were parked in front of a tavern in Salina, Kansas. One of the vehicles was described as a 1967 green Pontiac and it was reported that a large amount of coins had been seen lying on the front seat of the car.

A short time later Officer Overstreet observed defendant, with a passenger, driving away from the tavern in the Pontiac. The other vehicle was following them. The two cars had gone only a block when they were stopped by Overstreet. Defendant and his passenger, Robert Wing, were ordered out of the car and frisked. When defendant could not produce a driver's license upon request, he was handcuffed and taken to the police station in the patrol car. Overstreet ordered the passenger, Wing, to drive the Pontiac and follow the patrol car to the police station. The officer did not notice any coins lying on the car seat at that time. He did not inquire as to the ownership of the car.

At the police station defendant was unable to post bond or pay his fine, so he was booked and jailed. When it was discovered that defendant was going to be jailed, a warrantless inventory search was made of the Pontiac as was the customary procedure prior to impoundment of a vehicle. Although the police did not know at that time who owned the car, it was later determined that the Pontiac was owned by Lloyd Shipman, the driver of the second car.

Pursuant to the inventory of the vehicle, the police searched the trunk where they found a large container of coins, a portable television, a tape player, a turntable, two speakers and two amplifiers. These items were placed in the evidence locker and the vehicle was towed to a fenced lot for impoundment. Later, the serial numbers were sent to the National Crime Information Center and the property was discovered to be stolen.

Detectives Huff and Hindman of the Salina Police Department were contacted and authorized to begin an investigation. Detective Huff learned from the Reno County sheriff's office that the merchandise was from Crupper's Furniture and Appliance Store. Questioning of defendant and the other parties continued throughout the afternoon. Defendant was shown the items of property discovered in the car trunk, and shortly thereafter defendant allegedly confessed to the police that he, along with Richard Bentley and Lloyd Shipman, burglarized the appliance store.

Prior to trial on the merits, defendant moved the court for an order suppressing the introduction into evidence of all property taken from the trunk of the automobile driven by him on the day of his arrest, and for an order suppressing any testimony relating to said property. Defendant further moved the court for an order suppressing his confession. In support of his motion, defendant argued the search and seizure of personal property in the car did not occur at any time or place contemporary with his arrest by the Salina police and that said search and seizure occurred at the police station under the guise of an 'inventory search' and was not conducted with a search warrant. Defendant further stated that permission was not given to search the vehicle, and that such a search was contrary to the Fourth Amendment to the Constitution of the United States, to Section 15 of the Bill of Rights of the Constitution of the State of Kansas, and to K.S.A. 22-2501, relating to searches without a search warrant.

In a comprehensive memorandum opinion filed on February 21, 1974, the district court of Reno County, Kansas, set forth the applicable case law, recognized there was a definite split of authority, and declared the police inventory search and seizure of the items contained in the trunk of the vehicle was lawful. Defendant's motion to suppress was accordingly denied. The trial was ordered to proceed as scheduled and defendant was found guilty of burglary and theft.

We note as a preliminary matter that the state raises a question as to the standing of defendant to object on constitutional grounds to the search of the automobile. It is the state's argument that defendant has done nothing more than allege a custodial interest in the car by virtue of the act of driving. This, it claims, is insufficient to accord standing to the defendant.

We have held that one who seeks to challenge the legality of a search as a basis for suppressing relevant evidence must first allege, and if disputed he must establish, that he was the victim of the invasion of privacy. To establish a sufficient interest, a movant must claim either to have a proprietary or possessory interest in the premises searches, or to have owned or possessed the seized property. (State v. Sumner, 210 Kan. 802, 504 P.2d 239; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697; Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208; Head and Cummings v. State, 246 Miss. 203, 136 So.2d 619.)

On numerous occasions we have applied this principle to the search of an automobile and held that one who is neither an owner nor in possession of an automobile lacks standing to invoke the constitutional guarantee of immunity from unreasonable search and seizure. (State v. Edwards, 197 Kan. 146, 415 P.2d 231; State v. Roberts, 210 Kan. 786, 504 P.2d 242.) In Edwards, the automobile searched was not owned by the defendant, nor was it in his possession or control. The defendant therein did not claim any interest in the car or in the property taken therefrom. Consequently, we held the defendant lacked standing to protest the search.

Similarly, we denied a motion to suppress for lack of standing in Roberts, where the defendant was only a passenger in the car that was searched and he claimed no ownership or interest in it.

The situation confronting us in the instant case is somewhat different. Here, defendant was the driver of the vehicle at the time he was arrested. He had actual possession and custody of the automobile, with the apparent consent of the owner, Lloyd Shipman, who was following in the second car. Under these circumstances, defendant had a sufficient possessory interest in the automobile to justify a reasonable expectation of privacy and to assert his constitutional rights against unreasonable search and seizure.

We find support for this result in the holdings of other courts which have been faced with similar factual settings. In United States v. Festa, 192 F.Supp. 160 (D.C.Mass.1960), the court said:

'Although Pirrello (co-defendant) was not the owner of the car, and may not have been the owner ot its contents, he had been given possession of the car by its registered owner. Pirrello therefore has standing to require that the contents of the car which were seized, . . . be returned to him and be suppressed in evidence. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.' (p. 164.)

Again, in State v. Hoover, 219 Or. 288, 347 P.2d 69, the court reached the same conclusion:

'We note that the defendant was driving a borrowec car. However, we think that a bailee has an interest of sufficient substance to fall within the constitutional protection. (Citations omitted.) The circumstances of the bailment are not set out with clarity in the evidence. One might infer that the automobile was loaned to the defendant alone or...