State v. Boyd, 86,553.
| Decision Date | 07 June 2002 |
| Docket Number | No. 86,553.,86,553. |
| Citation | 47 P.3d 419,30 Kan. App.2d 720 |
| Parties | STATE OF KANSAS, Appellee, v. TRACY D. BOYD, Appellant. |
| Court | Kansas Court of Appeals |
Nathan Webb, assistant appellate defender, and Randall L. Hodgkinson, deputy appellate defender, for appellant.
Jeffery V. Rowe, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, for appellee.
Before MARQUARDT, P.J., ELLIOTT and GERNON, JJ.
Tracy D. Boyd appeals her conviction of possession of cocaine. We affirm.
Officers Kevin Real and Paul Herman were conducting surveillance of a residence for suspected drug activity. They had arrested two individuals at the residence for possession of cocaine a week earlier. At approximately 1:30 a.m., a vehicle that had been parked in front of the residence drove away and made a left turn without signaling. The officers stopped the vehicle.
Officer Real asked the driver, Richard Lassiter, for his license and proof of insurance. At the same time, Officer Herman approached the passenger's side of the vehicle and obtained identification from Boyd.
Officer Real testified that Lassiter appeared "more nervous than most," and Real asked him to exit the vehicle. When Lassiter was asked where he was traveling from, he gave the name of one of the individuals who had been arrested at the surveilled residence the previous week. Officer Real asked Lassiter if he had any illegal substances on him, and Lassiter responded negatively. Lassiter consented to a search of his person and no illegal substance was found. Officer Real asked Lassiter if the vehicle was his and, if so, whether he could search it. Lassiter responded affirmatively to both questions.
Officer Herman asked Boyd to step out of the vehicle after Lassiter consented to the search of his vehicle. Boyd testified that when she left the vehicle, she attempted to take her purse but was told by Officer Herman to leave it inside the vehicle.
This procedure lasted 4 or 5 minutes. When Officer Real searched the vehicle, he opened the center console ashtray and found a crack pipe. Boyd's purse was searched after Officer Real discovered the crack pipe. Officer Real testified that Boyd's purse was located on the floorboard between the driver and front passenger seat. Officer Real opened one of the pouches of Boyd's purse and found a plastic bag containing off-white rocks which were later confirmed to be crack cocaine.
Boyd was arrested and charged with possession of cocaine. Boyd filed a motion to quash her arrest and suppress the evidence. After a hearing, the trial court denied Boyd's motion to suppress, finding that Wyoming v. Houghton, 526 U.S. 295, 143 L. Ed.2d 408, 119 S. Ct. 1297 (1999), controlled. The trial court stated that once the crack pipe was found, officers had probable cause to search anything within the driver's reach.
The case was tried to the court. By agreement of the parties, the testimony from the suppression hearing was admitted as part of the bench trial. Boyd renewed her motion to suppress, which was denied. The trial court found Boyd guilty of cocaine possession and sentenced her to 12 months' probation with an underlying prison term of 11 months. Boyd timely appeals.
Boyd claims that the trial court erred when it did not suppress the evidence found in her purse. She alleges that the search of her purse was illegal and violated her Fourth Amendment rights.
Whether a search or seizure is illegal and unreasonable under the Fourth Amendment to the United States Constitution requires a balancing of individual privacy rights against legitimate governmental interests. Houghton, 526 U.S. at 299-300.
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. Box, 28 Kan. App. 2d 401, 404, 17 P.3d 386 (2000). Boyd does not question that Lassiter gave consent to the search and that his consent was voluntary.
The State argues that probable cause existed for the search of Boyd's purse after Officer Real discovered the crack pipe in the vehicle's console. Boyd contends that the police did not have probable cause to search her purse because they did not find illegal drugs when they searched Lassiter's person.
There is no published Kansas case which addresses the search of a passenger's possessions when the driver gives consent to search the vehicle.
A vehicle may be searched without a warrant if there is probable cause to support a belief that contraband may be found within the vehicle. United States v. Ross, 456 U.S. 798, 806-07, 72 L. Ed.2d 572, 102 S. Ct. 2157 (1982). Once probable cause is found concerning the existence of contraband within the vehicle, any container capable of containing the contraband or evidence thereof may be searched. State v. MacDonald, 253 Kan. 320, 325, 856 P.2d 116 (1993). Moreover, a showing of individualized probable cause for each container is not necessary, and a passenger's personal belongings, just like the driver's belongings, may be searched. Houghton, 526 U.S. at 302.
In Houghton, a highway patrol officer stopped a vehicle for speeding and a faulty brake light. The officer noticed a syringe sticking out of the driver's shirt pocket. The driver was asked what the syringe was used for, and he indicated that it was for taking drugs. The officer asked the passengers for identification and instructed them to exit the vehicle. Meanwhile, in light of the driver's admission, the officer searched the passenger compartment of the vehicle for contraband.
During the vehicle search, the officer found a purse in the back seat in which he found methamphetamine and drug paraphernalia. The passenger who was the owner of the purse, Sandra K. Houghton, was arrested. The trial court denied Houghton's motion to suppress the evidence found in her purse. The Wyoming Supreme Court reversed, finding that the search was unreasonable because the officer did not have probable cause to believe Houghton had contraband in the purse. The United States Supreme Court granted certiorari. Houghton, 526 U.S. at 297-99. The court found that Ross, 456 U.S. 798, did not limit its holding only to contents which belonged to the driver. Justice Scalia stated that if probable cause exists to search a vehicle, all containers within the vehicle capable of containing the object of the search can be searched regardless of ownership. Houghton, 526 U.S. at 301.
Probable cause to search a vehicle is established if, under the totality of the circumstances, there is a fair probability that the vehicle contains contraband or evidence. United States v. Edwards, 242 F.3d 928, 939 (10th Cir. 2001). At a suppression hearing, officers must offer testimony supporting an articulable suspicion of illegal activity or that contraband could be found within the vehicle. Edwards, 242 F.3d at 939.
Consideration of the totality of the circumstances dictates whether the search and seizure was illegal. Lassiter "appeared a lot more nervous than most," and the vehicle had just left a residence where drug arrests had taken place the previous week. Neither Lassiter nor Boyd was under arrest when the search took place. The trial court stated that probable cause to search Boyd's purse was directly connected to the discovery of the crack pipe in the vehicle's console. We agree.
In justifying the search of Boyd's purse, the State relies on Lassiter's voluntary consent to search the vehicle. An exception to the search warrant requirement is voluntary and knowing consent to search from the person whose rights are in question. State v. Kriegh, 23 Kan. App.2d 935, 938, 937 P.2d 453 (1997). Consent to a search operates to remove the taint of illegality of the seizure if voluntarily given. State v. Schmitter, 23 Kan. App.2d 547, 556, 933 P.2d 762 (1997).
Boyd does not contest Lassiter's consent to search the vehicle. However, Boyd argues that the consent did not cover the search of her purse. A third party who has common authority over the property at issue may give valid consent to search. Illinois v. Rodriguez, 497 U.S. 177, 179, 111 L. Ed.2d 148, 110 S. Ct. 2793 (1990). Kansas has adopted the "apparent authority" rule, which makes valid a consent to search when the facts available to an officer would warrant a person of reasonable caution to believe the consenting party had authority over the premises to be searched. State v. Ratley, 16 Kan. App.2d 589, 595, 827 P.2d 78 (1992).
Boyd and the State differ on the issue of whether the officer had legitimate safety concerns for requesting Boyd to leave her purse in the vehicle. The safety issue is not dispositive of this case.
Boyd does not argue that the officers should not have been able to order her out of the vehicle; instead, Boyd likens her purse to "a piece of her outer clothing, which is...
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State v. Campbell
...the search was not improper, and even if it had been, the voluntary consent removes any taint of illegality. State v. Boyd, 30 Kan. App. 2d 720, 725, 47 P.3d 419 (2002), rev'd on other grounds275 Kan. 271, 64 P.3d 419 (2003). We have thoroughly reviewed the record and find there was substan......
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State v. Boyd, 86,553
...motion to suppress the evidence was denied by the trial court, and Boyd appealed. The Court of Appeals affirmed. State v. Boyd, 30 Kan. App. 2d 720, 47 P.3d 419 (2002). Boyd's petition for review was granted by this court September 24, Officers Real and Herman were conducting surveillance o......