State v. Fortune

• Decision Date: 26 October 1984
• Docket Number: No. 56426,56426
• Citation: 236 Kan. 248,689 P.2d 1196
• Parties: STATE of Kansas, Appellant, v. Rick E. FORTUNE, Appellee.
• Court: Kansas Supreme Court

Page 1196

689 P.2d 1196

236 Kan. 248

STATE of Kansas, Appellant, v. Rick E. FORTUNE, Appellee.

No. 56426.

Supreme Court of Kansas.

Oct. 26, 1984.

Syllabus by the Court

1. The scope of the constitutional protections afforded by the Kansas Constitution Bill of Rights, Section Fifteen, and the Fourth Amendment to the United States Constitution is usually considered to be identical.

2. A warrantless inventory search of a lawfully impounded vehicle is a search subject to the test of reasonableness under the United States and Kansas Constitutions.

3. Obiter dictum and dicta have been defined as words of a prior opinion entirely unnecessary for the decision of the case and as statements in opinions wherein courts indulged in generalities that had no actual bearing on issues involved.

4. The scope of a reasonable inventory search depends on the competing interests of the vehicle owner or driver in maintaining the privacy of his personal effects as opposed to the protection of both the valuables and the impounding authorities.

5. When a vehicle is being lawfully impounded it is reasonable within the restraints of the Fourth and Fourteenth Amendments to the United States Constitution and Kansas Constitution Bill of Rights, Section Fifteen, for the impounding officers to make a warrantless inventory search of the personal property within the vehicle, including the glove box and trunk, when the same may be accomplished without damage to the vehicle or its contents.

6. The governmental interests involved in protecting the personal property in a lawfully impounded vehicle, in protecting the police from subsequent claims for loss or damage, and in protecting the police and public from possible danger or damage outweigh the privacy interests of the owner or other person responsible for the impounded vehicle.

Geary N. Gorup, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on the brief for appellant.

Michael T. Harris, Wichita, argued the cause and was on the brief for appellee.

HOLMES, Justice:

This is an interlocutory appeal, pursuant to K.S.A. 22-3603, by the State of Kansas from an order of the district court suppressing certain physical evidence in a criminal prosecution. The evidence suppressed was recovered by police officers from the locked trunk of defendant's automobile during an inventory search of the vehicle as a part of the procedure followed when a vehicle is impounded by police. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c). The facts are not in dispute.

On August 1, 1983, at 2:13 a.m., the defendant was stopped and arrested by a Wichita police officer in Wichita for driving while under the influence of intoxicating liquor. For the purposes of the suppression hearing the defense stipulated that the officer had probable cause to stop the defendant, and had probable cause for the subsequent arrest of the defendant. A passenger in the car, who was also under the influence of alcohol, was placed under arrest for charges unrelated to this appeal. The defendant was so intoxicated that after he was placed in the officer's patrol car he passed out. After the arrest the officer observed valuable personal property, including a video recorder and rolled coins, in plain view in the passenger compartment of the vehicle.

Pursuant to a policy of the Wichita Police Department the vehicle which the defendant was driving was impounded. The department policy provides that any time the driver of a vehicle is arrested and there is no one present to assume responsibility for the vehicle it will be impounded; all personal property is to be removed from the vehicle pursuant to an inventory search and turned in for safekeeping by the police department. In the present case the defendant's automobile was ordered impounded. Two police officers then searched the passenger compartment, the closed glove compartment and the locked trunk which was opened with car keys left on the roof of the vehicle by the defendant before he passed out.

All personal property except items customarily considered vehicle equipment was removed and kept for safekeeping. The vehicle itself was locked and released to a private company under contract with the city to tow and to store impounded vehicles until claimed by their owners. The keys to the vehicle were kept by the police for return to the defendant upon his release from jail. Among the items removed from the trunk was a slot machine which was subsequently determined to have been stolen in a burglary. The defendant was charged in this action with that burglary as well as with the felonious theft of the slot machine. Defendant filed a timely motion pursuant to K.S.A. 22-3216 to suppress all physical evidence found in the trunk of the defendant's vehicle. The motion was sustained and the State has filed this interlocutory appeal from the court's ruling.

This is another in the endless series of cases facing the courts in their attempts to establish the extent of the prohibition against unreasonable searches and seizures mandated by the Fourth and Fourteenth Amendments to the United States Constitution and, in Kansas, Section Fifteen of the Bill of Rights of the Kansas Constitution. At the outset the State concedes that the instant search was conducted solely for inventory purposes incident to the lawful impounding of the defendant's vehicle. There is no contention that the search was conducted as an incident to the defendant's arrest, that exigent circumstances existed which justified the warrantless search, that the police officers had probable cause to believe any contraband was present in the vehicle or that evidence might be lost if the vehicle was not immediately searched. In addition, the defendant does not assert that the inventory search was a subterfuge by the police to conduct a warrantless search for which there was no probable cause or other grounds for a warrant. Both parties agree that it was nothing more or less than a good faith inventory search of a lawfully impounded vehicle. The district court, in suppressing the slot machine recovered from the trunk of defendant's vehicle, relied upon our decision in State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975), wherein the court held:

"In the absence of a search incident to a valid arrest, and in the absence of probable cause for a search, a good faith inventory search of a lawfully impounded automobile is limited to items in plain sight." Syl. p 6.

The State urged before the trial court, and on this appeal, that Boster is no longer controlling in view of the decision in South Dakota v. Opperman, 428 U.S. 364, 49 L.Ed.2d 1000, 96 S.Ct. 3092 (1976). At the outset it might be well to note that this court has taken the position that the scope of the constitutional protections afforded by the Kansas Constitution Bill of Rights, Section Fifteen and the Fourth Amendment to the United States Constitution is usually considered to be identical. State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983).

In Boster defendant was stopped in a car and arrested after failing to produce his driver's license on request, a traffic violation. Unable to post bond or pay his fine, he was booked and jailed. The police undertook a warrantless inventory search of his car, as was the customary procedure prior to impoundment. In the trunk they found a large container of coins, a portable television, a tape player, a turntable, two speakers and two amplifiers. The items were later determined to have been stolen from a local appliance store the day before defendant's arrest. As in the present case, defendant Boster was charged with burglary and theft. His appeal questioned the constitutional validity of the inventory search under the Fourth Amendment to the United States Constitution and Section Fifteen of the Bill of Rights of the Kansas Constitution. After determining that Boster had standing to object on constitutional grounds and that an inventory search constitutes a search as contemplated by both the federal and state constitutions, the court proceeded to consider the reasonableness of the inventory search. As stated by the court:

"An inventory search [of a lawfully impounded vehicle] constitutes a substantial invasion into the privacy of an individual and, regardless of the benevolent purposes [served by the inventory], such a search should be subject to the test of reasonableness created by the constitutional guarantees." 217 Kan. at 623, 539 P.2d 294.

The decision in Boster was twofold: first, the court held that the automobile driven by Boster was illegally impounded and therefore the inventory search was invalid; and second, the court held that even assuming the police had lawful custody of the vehicle, the search itself was unreasonable.

In the instant case the State first contends that the Boster decision, insofar as it determined the search was unreasonable, was dicta and should not be considered as precedent because the actual holding was limited to the propriety of the vehicle impoundment, rather than the search. We consider this argument totally frivolous. "Obiter dictum" is defined as "[w]ords of a prior opinion entirely unnecessary for the decision of the case.... Statements in opinions wherein courts indulged in generalities that had no actual bearing on issues involved." Black's Law Dictionary 1222 (Rev. 4th ed.1968). "Dictum" is a statement which lacks the force of an adjudication. Black's Law Dictionary 541 (Rev. 4th ed. 1968). The inventory search portion of the opinion in Boster was an alternative ground for our decision in the case and the fact that such alternative holding possessed the full force of an adjudication is not only obvious but has been so recognized in prior cases. See State v. Potter, 8 Kan.App.2d 52, 648 P.2d 1162 (1982); State v. Morgan, 3 Kan.App.2d 667, 600 P.2d 155 (1979); State v. Stewart, 219 Kan. 523,...