State v. Boyd, 86,553

• Decision Date: 07 March 2003
• Docket Number: No. 86,553,86,553
• Citation: 64 P.3d 419,275 Kan. 271
• Parties: STATE OF KANSAS, Appellee, v. TRACY D. BOYD, Appellant.
• Court: Kansas Supreme Court

275 Kan. 271

64 P.3d 419

STATE OF KANSAS, Appellee, v. TRACY D. BOYD, Appellant.

No. 86,553

Supreme Court of Kansas

Opinion filed March 7, 2003.

Nathan B. Webb, assistant appellate defender, argued the cause, and Randall L. Hodgkinson, deputy appellate defender, was with him on the briefs for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the briefs for appellee. The opinion of the court was delivered by

ALLEGRUCCI, J.:

Tracy D. Boyd was convicted of possession of crack cocaine. She was a passenger in a vehicle stopped for a traffic violation. The driver consented to a search of the vehicle, Boyd was told to leave her purse on the floorboard when she got out of the vehicle, police found a crack pipe in the console of the vehicle, and then the officer searched Boyd's purse. It contained crack cocaine. Boyd's 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, 2002.

Officers Real and Herman were conducting surveillance of a residence in Wichita for suspected drug activity. Approximately a week earlier, they had arrested the woman who lived in the house and a man who was there for possession of cocaine. At approximately 1:30 a.m., a vehicle that had been parked in front of the residence drove away and made a 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. Boyd retrieved her identification from her purse and placed her purse back on the floorboard of the vehicle.

Because Lassiter appeared "a lot more nervous than most," Real asked him to get out of the vehicle. Lassiter got out and went to the rear of the vehicle to talk with the officer. Lassiter said they were coming from seeing Betty DeMarco, the woman who had been arrested earlier at the watched residence. 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. Real asked Lassiter if the vehicle was his and, if so, whether he could search it. Lassiter responded affirmatively to both questions.

When Officer Herman was told that Lassiter had consented to a search of the vehicle, Herman asked Boyd to get out. Boyd testified that when she left the vehicle, she reached for her purse to take it with her but was told by Officer Herman to leave it inside the vehicle. Boyd put her purse down and stepped out of the vehicle. She further testified that, after she was out of the vehicle, the officer who had gotten into the passenger compartment asked if it was her purse and if he could search it. She told him her purse was a personal belonging and that she did not want him to search it.

Officer Real began searching the passenger compartment around the area where Lassiter had been sitting. In the center console ashtray, he found a crack pipe. Boyd's purse was sitting on the floorboard in front of the console. Real searched it and found a plastic bag containing off-white nuggets, which were later confirmed to be crack cocaine.

Boyd was arrested and charged with possession of cocaine. She filed a motion to 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 Court of Appeals agreed. Boyd filed a petition for review of the Court of Appeals' decision. Boyd argues that Houghton is not controlling and the trial court erred in denying suppression based upon Houghton.

When a motion to suppress evidence is filed, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990). Where, as here, the facts material to a decision on a motion to suppress evidence are not in dispute, the question whether to suppress is a question of law subject to unlimited review. State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998).

"`"The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.' [Citation omitted.]"'" State v. Jaso, 231 Kan. 614, 620, 648 P.2d 1 (1982).

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).

In this case, the trial court denied Boyd's motion to suppress based upon probable cause with the exigent circumstances exception. This exception allows a warrantless search where there is probable cause for the search and exigent circumstances justify an immediate search. State v. Platten, 225 Kan. 764, 769, 594 P.2d 201 (1979). The most common example of a warrantless search based on exigent circumstances is the search of a vehicle. The United States Supreme Court and the Kansas Supreme Court have both recognized that exigent circumstances may allow the warrantless search of a vehicle when probable cause has been established to justify a search. Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925); Jaso, 231 Kan. 614, Syl. ¶ 2. Exigent circumstances, however, do not include situations where only a mere possibility exists that evidence could be destroyed or concealed. State v. Hardyway, 264 Kan. 451, 465, 958 P.2d 618 (1998).

The trial court and the Court of Appeals considered Wyoming v. Houghton, 526 U.S. 295, to be controlling. In that case, officers stopped an automobile for speeding and driving with a faulty brake light. While questioning the driver, the officer noticed a hypodermic syringe in the driver's shirt pocket. The driver told the officer he used it to take drugs. Having probable cause to believe there were illegal drugs in the car, officers ordered the two female passengers out and searched the passenger compartment for contraband. The officers searched a purse, which they found on the back seat. It belonged to Houghton, one of the passengers, and it contained drugs and drug paraphernalia. She was arrested.

United States v. Ross, 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982), held that officers with probable cause to search a lawfully stopped vehicle may conduct a warrantless search of any container found in the vehicle that is capable of concealing the object of the search. In Houghton, the Supreme Court extended the Ross rule to searches of containers belonging to passengers, including personal belongings such as purses. "A passenger's personal belongings, just like the driver's belongings or containers attached to the car like a glove compartment, are `in' the car, and the officer has probable cause to search for contraband in the car." 526 U.S. at 302. The Supreme Court further reasoned that

"[p]assengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars, which `trave[l] public thoroughfares,'. . . `seldom serv[e] as . . . the repository of personal effects,'. . . are subjected to police stop and examination to enforce `pervasive' governmental controls `[a]s an everyday occurrence,'. . . and, finally, are exposed to traffic accidents that may render all their contents open to public scrutiny. [Citations omitted.]" 526 U.S. at 303.

Weighing the passenger's privacy expectations against the governmental interest in effective law enforcement "with an eye to the generality of cases," 526 U.S. at 305, the Supreme Court concluded that the needs of law enforcement outweighed a personal privacy interest in the circumstances. 526 U.S. at 306.

The Court of Appeals opinion contains mixed references to consent and probable cause as possible bases for the search of Boyd's purse. The Court of Appeals' citation of Houghton would indicate that it viewed the officer's search of Boyd's purse to have been based on probable cause, once the crack pipe had been found, to believe there were illegal drugs in the vehicle. The Court of Appeals stated "that probable cause to search Boyd's purse was directly connected to the discovery of the crack pipe in the vehicle's console." 30 Kan. App. 2d at 725. Consideration, however, also was given by the Court of Appeals to the driver's consent, and it does not appear that consent was ruled out as a possible basis for the search. 30 Kan. App. 2d at 728. The Court of Appeals concluded its opinion in Boyd with this dual message: "We hold that under the totality of the circumstances, no illegal search or seizure of any item in a vehicle takes place when probable cause has been established and the officers receive voluntary consent to search from the driver of the vehicle." 30 Kan. App. 2d at 728.

On appeal, the State argues that the search of Boyd's purse was justified by the "probable cause established upon discovery of the crack pipe in the console." Lassiter's consent to search his van was voluntary and is not disputed. The State does not argue that Boyd's purse was subject to search based upon Lassiter's consent. Rather it contends that the search of the van was lawful due to Lassiter's consent and, in conducting the search, officers discovered the crack pipe in the console. The State concedes the purse was not searched incident to an...