State v. Frizzell
| Decision Date | 15 May 1971 |
| Docket Number | No. 46169,46169 |
| Citation | 207 Kan. 393,485 P.2d 160 |
| Parties | STATE of Kansas, Appellee, v. Patricia A. FRIZZELL, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. By custodial interrogation is meant the questioning of persons by law enforcement officers which is initiated and conducted while such persons are held in legal custody or are otherwise deprived of their freedom of action in any significant way.
2. By investigatory interrogation is meant the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way.
3. There is probable cause to search when there exist facts and circumstances sufficient to warrant a reasonable prudent man to believe that an automobile contains contraband or items which offend against the law.
4. A reasonable warrantless search of an automobile may be properly made in absence of a prior arrest so long as there is probable cause for the search.
5. A search implies prying into hidden places for that which is concealed. It is not a search to observe that which is in open view. Looking through a window into an automobile does not constitute a search.
6. Objects in plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.
G. Edmond Hayes, Wichita, argued the cause and was on the brief, for appellant.
Kerry J. Granger, Asst. County Atty., argued the cause, and Kent Frizzell, Atty. Gen., and Raymond F. Berkley, County Atty., were with him on the brief, for appellee.
The defendant-appellant (Patricia A. Frizzell) appeals from a conviction by a jury on two counts of grand larceny as defined in K.S.A. 21-533 (now K.S.A.1970 Supp. 21-3701).
Defendant raises two contentions on appeal. She first claims the trial court erred in admitting an admission against interest obtained from her by a Highway Patrol Trooper. She says the admission was obtained without any explanation of her constitutional rights and while she was under substantial restraint of liberty. Her second point is that the trial court erred in overruling defendant's motion to suppress certain evidence and later in admitting that evidence at the trial.
There is little dispute about the facts. On November 7, 1969, Trooper Gonzales, of the Kansas Highway Patrol, was assisting other troopers in conducting a driver's license check lane south of Hutchinson. Gonzales testified that he observed a 1968 Oldsmobile approach within approximately 400 feet of the check lane at a slow rate of speed. It pulled into a driveway, turned around, and proceeded in the opposite direction. Gonzales followed and stopped the automobile for the purpose of checking the operator's driver's license. The driver was one Ronnie G. Whitehead. The passengers were Ola Mae Roberson, in the front seat, and defendant (Patricia A. Frizzell), in the rear seat. Gonzales approached the vehicle on the driver's side and asked Whitehead to produce his driver's license. Whitehead replied that he had left his license at home. Gonzales testified that he proceeded to explain to Whitehead the procedure, whereby he would issue a citation to Whitehead which could later be cured by the production of his driver's license. During the course of the conversation, Gonzales saw a mound on the rear seat, directly behind the driver, which he described as covering the rear seat and was about two and one-half feet long, two feet high, and covered by a lady's coat. He further testified that he thought at first that the coat might be covering a body, then he saw two sleeves dangling from beneath the coat with what appeared to be a department store price tag attached by a string to one of the sleeves.
While continuing the conversation with Whitehead about his driver's license, Gonzales saw defendant take another coat and place it upon the coat that was covering the mound and pull it down over the mound. At this juncture, he observed Ola Mae Roberson, the passenger in the front seat, turn around, reach back between the bucket seats, and push the protruding sleeve and price tag under the covering coat.
At this point, without directing the question to any particular person, Gonzales asked 'what was situated in the rear.' His testimony thereafter appears as follows:
Whitehead was then asked to accompany Gonzales to the patrol car where he (Gonzales) radioed for assistance. He was informed that immediate assistance was unavailable. Gonzales returned to the Oldsmobile.
Gonzales described the ensuing events as follows:
Trooper Keffer arrived in about five minutes. Gonzales then entered the automobile and found new articles of clothing beneath the coats in the back seat. The clothing consisted of seven or eight ladies' dresses and three or four men's suits. It was later determined that the dresses had been stolen from Pegues Department Store and the suits from the J. C. Penny Store in Hutchinson.
Defendant was charged with two counts of grand larceny.
On direct examination Gonzales, over defendant's objection, was allowed to relate her admission that the clothing was hers. Defendant claims this was reversible error since she had not been advised of her rights under the rule of Miranda v. Arizona, 384 U.S. [207 Kan. 396] 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. A short answer to defendant's contention is that the general query directed to the occupants of the automobile, which finally brought forth defendant's answer, did not constitute custodial interrogation as defined in Miranda.
Under the circumstances attendant here, the question put by Gonzales to the occupants of the automobile was nothing more than routine, on-the-scene questioning. When the question was posed the investigation had not 'focused' on any particular person, nor had Gonzales determined that a crime had been committed. Defendant was under no compulsion to answer. In fact, the further question by Gonzales concerning the absence of luggage was not answered by anyone. Gonzales was discussing the driver's license problem with Whitehead when he noticed the mound and put the question. The circumstances surrounding the inquiry clearly fall within the realm of routine on-the-scene questioning. Gonzales had neither done nor said anything which could be said to have deprived defendant of her freedom of action in any significant way.
The distinction between custodial interrogation, as defined in Miranda, and on-the-scene questioning is recognized in the opinion itself. The Miranda court noted that the decision was not intended to hamper the traditional function of police officers investigating crimes and that general on-the-scene questioning was not affected by the holding.
This court has recognized the distinction, drawn in Miranda, between custodial interrogation and on-the-scene questioning in two recent cases. See State v. Porter, 201 Kan. 778, 443 P.2d 360, cert. den., 393 U.S. 1108, 89 S.Ct. 919, 21 L.Ed.2d 805, and State v. Phinis, 199 Kan. 472, 430 P.2d 251. In Porter it was held:
'By custodial interrogation is meant the questioning of persons by law enforcement officers which is initiated and conducted while such persons are held in legal custody or are otherwise deprived of their freedom of action in any significant way.' (Syl. 1.)
In Phinis investigatory facts and admissions, elicited by officers on-the-scene, are clearly distinguished from custodial interrogation as defined in Porter.
We hold the admission by defendant that the mound consisted of clothing belonging to her came about during...
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