State v. Fitzgerald

• Decision Date: 12 September 2008
• Docket Number: No. 95,812.,95,812.
• Citation: 192 P.3d 171
• Parties: STATE of Kansas, Appellee, v. Shaun P. FITZGERALD, Appellant.
• Court: Kansas Supreme Court

192 P.3d 171

STATE of Kansas, Appellee, v. Shaun P. FITZGERALD, Appellant.

No. 95,812.

Supreme Court of Kansas.

July 20, 2007.

September 12, 2008.

Kristen B. Patty, of Wichita, argued the cause, and Kurt P. Kerns, of Ariagno, Kerns, Mank & White, L.L.C., of Wichita, was with her on the brief for appellant.

Kristi L. Barton, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

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

Defendant Shaun P. Fitzgerald challenges rejection of his motion to suppress drug evidence found in his girlfriend's truck after a traffic stop led to his arrest for driving on a suspended license. He argues that his possession of a large amount of currency was not enough, standing alone, to supply probable cause to support a warrantless search.

Fitzgerald was pulled over while traveling by himself in his girlfriend's truck in the late afternoon. He had run a stop sign. Officer R.A. Thatcher discovered that Fitzgerald's driver's license was suspended. Fitzgerald told Thatcher that he had already called his girlfriend to come to the scene and pick up his truck, and he was completely cooperative while Thatcher placed him under arrest. Once Fitzgerald was cuffed and patted down, Thatcher found $2,673 in cash, which Thatcher described as "a mini cash register," when going through Fitzgerald's pockets. This discovery prompted the officer to ask Fitzgerald about his employment. Fitzgerald replied that he earned $10 an hour at a car detailing shop and that the money in his pockets was for rent and bills.

The officer then returned to the girlfriend's truck with the intention of searching it for drug evidence. He did so and found methamphetamine, digital scales, and several small plastic bags inside.

Accounts of events diverge somewhat at that point, which is when Fitzgerald's girlfriend arrived. According to a stipulation of the parties, she would have testified that Thatcher told her he had already found money on Fitzgerald and had already searched the truck and found drugs. He then sought her consent to search, and she asked if she could drive the truck away. The officer responded that she could not take the truck until a more thorough search had been performed. She then agreed to the search. Thatcher, on the other hand, testified that he merely sought and received the girlfriend's consent to search after she arrived at the scene. The second search of the truck uncovered no additional evidence, but Fitzgerald made incriminating statements to a second police officer who had arrived at the scene.

The district judge rejected Fitzgerald's motion to suppress the drug evidence and statements, ruling that two exceptions to the Fourth Amendment's warrant requirement applied: (1) probable cause plus exigent circumstances, and (2) inevitable discovery based on the girlfriend's later voluntary consent.

Fitzgerald was convicted of possession of methamphetamine with intent to sell and possession without a tax stamp.

Our Court of Appeals affirmed the district judge's decision on both search warrant exceptions. State v. Fitzgerald, No. 95,812, 2007 WL 2080389 unpublished opinion filed July 20, 2007.

The panel considered probable cause established by Fitzgerald's peremptory call to his girlfriend, by the amount of money he was carrying and his arrangement of the bills in numerical order of denomination, and by his description of his not especially well-remunerated employment. The imminent arrival of Fitzgerald's girlfriend to pick up the truck qualified as an exigent circumstance.

On inevitable discovery, the panel recited the requirements of the exception and then moved immediately to an examination of whether the girlfriend's consent was voluntary. In the panel's view, the girlfriend had consented to a search of the truck because she knew it had already been searched and expected no more drugs to be found. Under these circumstances, the panel said, the officer's conduct was not coercive and thus the consent voluntary; in turn, the consent supported application of the inevitable discovery exception.

When reviewing a motion to suppress evidence, an appellate court determines whether the factual underpinnings of the district judge's decision are supported by substantial competent evidence. The ultimate legal conclusion to be drawn from those facts raises a question of law requiring application of a de novo standard. When, as is at least partially true here, the facts material to the district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Anderson, 281 Kan. 896, 900-01, 136 P.3d 406 (2006); State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004). The State bears the burden of proof when there is a motion to suppress; it must show the lawfulness of the challenged search. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).

The Fourth Amendment to the United States Constitution guarantees that "[t]he 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." Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. State v. Schoonover, 281 Kan. 453, 493, 133 P.3d 48 (2006); State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993).

A warrantless search is per se unreasonable if it does not fall within a recognized exception to the search warrant requirement. State v. Ibarra, 282 Kan. 530, 536, 147 P.3d 842 (2006); State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003). The recognized exceptions to the warrant requirement for searches and seizures include consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view or feel; and administrative searches of closely regulated businesses. State v. Rupnick, 280 Kan. 720, 727, 125 P.3d 541 (2005).

A traffic stop is a seizure within the meaning of the Fourth Amendment, but Fitzgerald's Fourth Amendment argument does not focus on the legality of the stop. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). He also does not challenge the validity of his arrest for driving on a suspended license in violation of K.S.A. 8-262(a)(1) or the propriety of Thatcher's search of his person incident to that arrest. Rather, Fitzgerald asserts that Thatcher's initial search of the truck did not fall within any of the warrant exceptions; specifically, it was not supported by probable cause. Further, he argues, his girlfriend's later consent to the second search did not cure the illegality of the first search, because her consent was not voluntarily given.

Initial Search

As to Thatcher's initial search of the truck, no facts are in dispute; and both parties acknowledge that the only potentially applicable warrant exception is probable cause plus exigent circumstances. As long as probable cause exists, automobiles and other vehicles may be searched without warrants where it is not practicable to secure a warrant; their mobility fulfills the additional requirement of the existence of exigent circumstances. See, e.g., State v. Garcia & Bell, 210 Kan. 806, 810, 504 P.2d 172 (1972) (citing Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 [1925]). If probable cause is absent, the existence of exigent circumstances is irrelevant. Ibarra, 282 Kan. at 544, 147 P.3d 842.

Probable cause is the reasonable belief that a specific crime has been committed and that a specific person committed it. Probable cause exists when the facts and circumstances within a law enforcement officer's knowledge and about which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed. When determining whether probable cause exists, an appellate court considers the totality of the circumstances, including all of the information in the officer's possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt. State v. Abbott, 277 Kan. 161, Syl. ¶¶ 2, 3, 83 P.3d 794 (2004). Evidence of probable cause need not reach the level necessary to prove guilt beyond a reasonable doubt, but it must constitute more than mere suspicion. State v. Mayberry, 248 Kan. 369, 376, 807 P.2d 86 (1991).

With regard to the support for probable cause contributed by the cash found in Fitzgerald's pockets, the State relies on a Court of Appeals civil forfeiture action. It asserts that "thick rolls of organized cash are usually in close proximity to drugs." See State v.1978 Chevrolet Automobile, 17 Kan.App.2d 144, 835 P.2d 1376 (1992). In 1978 Chevrolet, claimants had been stopped for speeding and were "extremely nervous." 17 Kan.App.2d at 145, 835 P.2d 1376. One claimant admitted to concealing money under his coat, and he turned over $30,900, sealed in nine separate envelopes. Claimants consented to a search of their car, in which officers discovered marijuana. After the State sought forfeiture of the car and cash, the Court of Appeals held that claimants failed to rebut a statutory presumption that money found in close proximity to controlled substances is subject to forfeiture. See K.S.A.1991 Supp. 65-4135(a)(6); 17 Kan.App.2d at 147-50, 835 P.2d 1376.

Fitzgerald distinguishes 1978 Chevrolet and other cases cited by the State, either because they were civil...