State v. Fewell

• Decision Date: 30 May 2008
• Docket Number: No. 95,041.,95,041.
• Citation: 184 P.3d 903
• Parties: STATE of Kansas, Appellee, v. RAMON I. FEWELL, Appellant.
• Court: Kansas Supreme Court

184 P.3d 903

STATE of Kansas, Appellee, v. RAMON I. FEWELL, Appellant.

No. 95,041.

Supreme Court of Kansas.

May 30, 2008.

Carl Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Jamie L. Karasek, assistant district attorney, argued the cause, and Amy M. Memmer, assistant district attorney, Robert D. Hecht, district attorney, and Phill Kline, attorney general, were on the brief for appellee.

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

Ramon I. Fewell was stopped for speeding, detained, and eventually searched by the arresting officer. Based in part upon evidence seized during the search, Fewell was charged with and convicted of possession of cocaine, criminal use of a weapon, possession of drug paraphernalia, and speeding. The Court of Appeals affirmed his convictions, concluding that the trial court properly denied his motion to suppress evidence. State v. Fewell, 37 Kan.App.2d 283, 152 P.3d 1249 (2007). We granted his petition for review on the suppression of evidence issue as well as other issues and affirm.

Facts

On the evening of March 18, 2003, Trooper Mark Engholm observed a Chevrolet Blazer traveling at 80 miles per hour southbound on U.S. Highway 75 in Shawnee County; the posted speed limit on the highway was 70 miles per hour. Trooper Engholm activated his emergency lights and initiated a traffic stop.

After the Blazer and the patrol car pulled on to the shoulder, Trooper Engholm approached the vehicle on the passenger side. As he approached the Blazer, he noticed a strong odor of burnt marijuana emanating from the vehicle's passenger compartment.

Once Engholm was at the passenger-side window, he informed the driver, Fewell, and the passenger, Charles Brown, of the reason for the traffic stop. He asked Fewell to exit the vehicle and step to the rear of the Blazer; he also asked Fewell about the smell of burnt marijuana. Fewell initially stated that he did not detect any such odor; however, he later stated that Brown had been smoking a "blunt." Engholm knew from his experience that a blunt was a hollowed-out cigar that had been filled with marijuana.

Trooper Engholm instructed Fewell to sit on the back bumper of the Blazer while the trooper spoke with Brown. Brown initially denied having marijuana, but he eventually told Engholm that he had previously had marijuana but that it was all gone because he had smoked it. The trooper then searched Brown and found three bags of marijuana and $1,000 in cash. Engholm subsequently arrested Brown and placed him in the passenger seat of the patrol car.

Once Brown was in the patrol car, Trooper Engholm returned to Fewell. Fewell asked Engholm if he could leave because he had to go pick up Brown's girlfriend. Engholm reminded Fewell that he still had Fewell's driver's license and asked Fewell whether he had "`anything'" on him. Fewell responded that he did not.

Engholm then began a pat-down search of Fewell's person. Engholm found a switchblade knife in the right front pocket of Fewell's pants and a bent spoon and glass pipe in his left front pocket. The trooper asked why Fewell carried these items, and Fewell responded that he "dabbles in cocaine." Engholm then handcuffed Fewell and waited until another officer arrived at the scene before continuing his search of Fewell. After back-up arrived, Engholm finished his search wearing Kevlar gloves; this search revealed a small bag of crack cocaine clenched in Fewell's right hand.

District Court

Fewell was charged with and convicted of possession of cocaine, criminal use of a weapon, possession of drug paraphernalia, and speeding. He filed a motion to suppress the cocaine, knife, and glass pipe, claiming that these objects were the fruits of an illegal search. After hearing evidence, the court denied his motion, finding that the odor of the marijuana provided probable cause to search the vehicle and its occupants and that the lack of a warrant was justified by exigent circumstances. In particular, the court relied upon this court's holding in State v. MacDonald, 253 Kan. 320, 856 P.2d 116 (1993) (odor of marijuana provided probable cause to search vehicle), finding that "it would be ludicrous to think that you could search the car and not the people" if an officer smelled a strong odor of marijuana emanating from the passenger compartment of the vehicle.

Fewell appealed, claiming (1) the denial of his suppression motion was error; (2) prosecutorial misconduct occurred requiring reversal of his convictions; and (3) cumulative error. In addition, Fewell claimed that his rights under the Sixth Amendment to the United States Constitution were violated by using his criminal history to enhance the severity level of his conviction at sentencing.

Court of Appeals

A divided panel of the Court of Appeals affirmed Fewell's convictions and sentences, concluding that the district court had properly denied the suppression motion and that the other claims raised in Fewell's appeal were without merit. Fewell, 37 Kan.App.2d at 284, 294, 152 P.3d 1249. Judge Greene dissented in part, finding that the evidence seized by Engholm (the knife, the pipe, and the cocaine) was the result of an illegal search and thus should have been suppressed. 37 Kan.App.2d at 294-98, 152 P.3d 1249 (Greene, J., dissenting).

The Fewell majority concluded, based on MacDonald and also on State v. Thomas, 28 Kan.App.2d 70, 12 P.3d 420 (2000), rev. denied 270 Kan. 903 (2001) (upholding the admission of drug-related evidence obtained by way of a strip search of a detainee at a detention facility when the detainee smelled of marijuana), that the odor of marijuana in Fewell's vehicle provided Trooper Engholm with probable cause to search the occupants of the vehicle. Judge Hill, writing for the majority, explained:

"First, the smell of marijuana gave the trooper probable cause to further detain the vehicle, including Fewell as the driver of that vehicle. Second, the odor created the officer's suspicion that marijuana use had been committed and that such evidence might be found on the driver, especially since the odor was burnt, compared to fresh, and that Fewell admitted that his passenger had smoked a blunt. Here, the trooper was experienced in detecting marijuana odor through his 11 years of law enforcement experience. Consequently, under the circumstances of this case, there was probable cause to search the driver based on the detection of burnt marijuana odor emanating from the vehicle." 37 Kan.App.2d at 288, 152 P.3d 1249.

The majority further concluded that exigent circumstances existed that justified the warrantless search of Fewell's person. The court explained that Trooper Engholm "was alone at the stop" and that "if the trooper had sought a warrant, there would have been probable loss or destruction of evidence." 37 Kan.App.2d at 289, 152 P.3d 1249.

Judge Greene in dissent acknowledged that "the undisputed facts of this appeal present a close and difficult question" but noted that the continuing investigation resulted in "lessening any suspicion that Fewell was involved in criminal activity" with no additional qualitative or quantitative evidence of his involvement. 37 Kan.App.2d at 294, 297, 152 P.3d 1249 (Greene, J., dissenting). Because Judge Greene would hold that the search was not supported by probable cause, he explained that he would not reach an analysis of whether the warrantless search was justified by exigent circumstances. 37 Kan.App.2d at 297, 152 P.3d 1249 (Greene, J., dissenting).

Motion to Suppress Evidence

In his petition for review, Fewell contends that this court's decision in MacDonald was explicitly limited to the facts of that case, so the lower courts' reliance on that case and an extension of its holding was improper. Fewell points out that no published Kansas case to date has held that odor of marijuana alone provides probable cause to search the occupants of a vehicle, and he argues that the facts in this case do not support such a finding. We emphasize that the issue in this case is not whether the odor of burnt marijuana alone provided probable cause to search the defendant, but rather whether under the totality of circumstances probable cause existed for the search of defendant's person.

Standard of Review

When a defendant files a motion to suppress evidence, the State bears the burden of proof to demonstrate that the search or seizure that led to the discovery of the evidence in question was lawful. See State v. Ibarra, 282 Kan. 530, 553, 147 P.3d 842 (2006).

"In reviewing a district court's decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]" State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).

Neither party in this case challenges the facts surrounding the search at issue. Because the facts underlying the district court's denial of Fewell's motion to suppress are undisputed, the question of whether the evidence obtained through that search should be suppressed is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).

Discussion and Analysis

The Fourth Amendment to the United States Constitution, made applicable to the States by way of the Fourteenth Amendment, provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Kansas Constitution Bill of Rights, § 15 similarly states...