State v. Box

• Decision Date: 22 December 2000
• Docket Number: No. 85,265.,85,265.
• Citation: 17 P.3d 386,28 Kan. App.2d 401
• Parties: STATE OF KANSAS, Appellant, v. STEVEN EUGENE BOX, Appellee.
• Court: Kansas Court of Appeals

28 Kan. App.2d 401

17 P.3d 386

STATE OF KANSAS, Appellant, v. STEVEN EUGENE BOX, Appellee.

No. 85,265.

Court of Appeals of Kansas.

Opinion filed December 22, 2000.

Steven J. Obermeier and Dionne Scherff, assistant district attorneys, Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, for appellant.

No appearance by appellee.

Before LEWIS, P.J., RULON, J., and GLENN D. SCHIFFNER, District Judge, assigned.

RULON, J.:

The State filed an interlocutory appeal from the trial court's decision granting defendant Steven E. Box's motion to suppress evidence. We reverse and remand for further proceedings.

The facts are virtually undisputed and are as follows:

Defendant was charged with being a felon in possession of a firearm and a misdemeanor, obstruction of legal process. Defendant filed a motion to suppress the evidence alleging he did not consent to the search and the search was not justified as a search incident to arrest. The State responded by asserting the search was authorized by consent and under K.S.A. 22-2501, a search incident to defendant's arrest.

At the suppression hearing, Michael Bussell, an officer with the Lenexa Police Department, testified he stopped a Caprice driven by defendant because the car displayed a tag registered to a different vehicle. After Bussell explained the reason for the stop to defendant, defendant was unable to provide a driver's license or proof of insurance. When Bussell requested defendant's name and date of birth, defendant advised his name was Damon Williams. A record check revealed Damon Williams had been arrested for narcotics and was a gang affiliate. For safety reasons Bussell requested a backup officer.

A passenger in the front seat was identified as Walter Laura. A record check advised that Laura had prior narcotics and weapons convictions. Laura was paralyzed from the waist down.

Bussell noticed a wallet in the ashtray, which had not been there when he initially approached the car. Bussell had defendant exit and stand to the rear of the car. Bussell suspected that defendant was lying and wanted to search the vehicle to get the wallet and anything illegal. Bussell advised defendant (who Bussell still knew only as Damon Williams), that his driver's license was suspended and asked if there was anything illegal inside the car. When defendant responded negatively, Bussell requested consent to search the car, and defendant consented. Fred Farris, another officer with the Lenexa Police Department, arrived as Bussell asked for consent to search the car.

The female passenger in the back seat was told to exit the car. Laura was not told to exit the vehicle because he did not have his wheelchair. Bussell did not make Laura sit on the ground because it was cold and rainy outside. When Bussell noticed the car had controls for acceleration and braking on the steering column, he asked Laura who owned the car. Laura advised that his cousin who was incarcerated gave the car to Laura for his care and custody. Bussell asked Laura if he could search the car and Laura agreed. None of the three occupants in the car could provide registration for the stopped vehicle.

Bussell searched the contents of the billfold, which indicated the driver's correct identity was defendant. A record check indicated defendant had an outstanding warrant for his arrest. Farris informed Bussell that defendant showed Farris the scar from a prior gunshot wound. Defendant was arrested and handcuffed.

A record check on the female passenger disclosed that she had provided fictitious identification. After the officers discovered her correct identity, she was arrested and taken into custody on outstanding arrest warrants. Because of defendant's and Laura's criminal histories, Bussell continued his search of the vehicle in the immediate areas where defendant had been seated and where Laura still was seated.

When Bussell realized the glove compartment was locked, he asked for the key several times. Defendant stated he did not know about the key and Laura stated he had never been inside the glove compartment. A decorative bullet hanging from a key chain in the ignition heightened Bussell's suspicion that defendant or Laura could possess a gun. Although Bussell made a very cursory pat-down for bulges in Laura's pants, Bussell was concerned for officer safety and wanted to search the glove compartment for a weapon due to Laura's close proximity to it. Bussell also believed the vehicle's registration would be in the glove compartment.

Farris testified he asked Laura for the key to the glove compartment because defendant admitted that he had a prior gun injury, and had been involved in drug activity. The officers knew that Laura was paralyzed because of a gunshot injury. Based upon the officers' experience, drugs and weapons usually coincided. The officers believed it was inappropriate to have Laura sit on the grass in the cold and rain, but were uncomfortable leaving Laura in the car because Laura could readily access the glove compartment.

While Bussell held his arm over Laura's torso, Farris took a screwdriver from the floorboard and used it to pry the glove compartment open. Inside was a loaded 9 millimeter handgun. When Farris told defendant they found a gun in the glove compartment, defendant immediately admitted it was his gun. Farris advised defendant not to say anything else until they arrived at the police station where defendant would be given an opportunity to make a statement.

When one of the passengers advised the officers the car contained drugs, it was towed to the police station where it could be searched further out of the inclement weather. The key to the glove compartment was eventually found in a crease in the front seat.

Subsequently, the district court found the consent to search the vehicle did not extend to the locked glove compartment. The court further found the search was not a search incident to arrest because the officers were not searching for fruits or instrumentalities of the crime for which defendant was arrested. The trial court found officer safety did not justify the search because the defendant was outside of the car when placed under arrest, and there was little evidence to support concern for officer safety regarding Laura. The court ultimately found the search of the glove compartment was not authorized and suppressed the evidence.

The State dismissed the obstruction of legal process charge and filed this interlocutory appeal.

The State has the burden of proof to show that a search and seizure was lawful. If the facts are not in dispute, the question of whether to suppress is a question of law which is subject to unlimited appellate review. State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666(1998).

The State claims the defendant's motion to suppress should not have been granted because the search was incident to defendant's arrest. However, the State does not appeal the trial court's finding regarding consent. Furthermore, the State acknowledges Kansas has not addressed whether an officer is permitted to open a locked glove compartment during a search incident to arrest.

The general rule that warrantless searches and seizures are unreasonable has five exceptions: (1) consent; (2) hot pursuit; (3) incident to a lawful arrest; (4) stop and frisk; and (5) probable cause to search with exigent circumstances. State v. Sanders, 5 Kan. App. 2d 189, 195, 614 P.2d 998 (1980).

K.S.A. 22-2501, the statutory authorization for a search incident to arrest, 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."

We begin our analysis with a review of Chimel v. California, 395 U.S. 752, 23 L. Ed.2d 685, 89 S. Ct. 2034,reh. denied 396 U.S. 869 (1969). Law enforcement officers arrested Chimel at his residence with a warrant for a burglary, searched the entire house, and confiscated numerous items from rooms other than the room where Chimel had been arrested. The Chimel Court held that the scope of the search was unconstitutional because it went beyond Chimel's person and areas where a weapon could have been retrieved or where evidence could have been destroyed or concealed. 395 U.S. at 768.

The Chimel Court held the concept of search incident to arrest was justified based upon officer safety and the rule for a search incident to arrest should be governed by the rule of Terry v. Ohio, 392 U.S. 1, 20, L. Ed.2d 889, 88 S. Ct. 1868 (1968), authorizing a frisk for weapons. 395 U.S. 762-63. The Chimel Court further concluded the scope of such searches "must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible." 395 U.S. at 762 (quoting Terry, 392 U.S. at 19). Under such a rule, no justification existed to routinely search rooms other than the room where an arrest occurred or through closed or concealed drawers or areas in that room, and a search incident to arrest is not justified where it is remote in time or place from the arrest. 395 U.S. at 764.

Following Chimel, our legislature enacted K.S.A. 22-2501. Additionally, our Supreme Court adopted six factors, based on existing federal and state case law, for a trial court to consider in deciding a motion to suppress evidence regarding the reasonableness of the scope of a vehicle search incident to a valid arrest. State v. Tygart, 215 Kan. 409, Syl. ¶ 2, 524 P.2d 753 (1974). The Tygart six factors are: (1) the closeness of the vehicle to the place of arrest, (2) the probability that seizable items related to the crime were inside the vehicle, (3) the amount of elapsed time between the arrest and the search, (4) the departure of the arrestee from the vehicle, (5) the vehicle was...