State v. Galloway

• Decision Date: 22 October 1982
• Docket Number: No. 53851,53851
• Citation: 652 P.2d 673,232 Kan. 87
• Parties: STATE of Kansas, Appellant, v. Sherman L. GALLOWAY, Appellee.
• Court: Kansas Supreme Court

Page 673

652 P.2d 673

232 Kan. 87

STATE of Kansas, Appellant, v. Sherman L. GALLOWAY, Appellee.

No. 53851.

Supreme Court of Kansas.

Oct. 22, 1982.

Syllabus by the Court

1. Searches conducted by the State outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th Amendment--subject only to a few specifically established and well-delineated exceptions. Absent one of these exceptions the seizure of items not particularly described in a search warrant is unconstitutional.

2. The "plain view" exception to the 4th Amendment applies when 1) the initial intrusion which afforded authorities the plain view is lawful; 2) the discovery of the evidence is inadvertent; and 3) the incriminating character of the article is immediately apparent to searching authorities.

3. For an object to be incriminating for constitutional purposes, the seizing authority need only have reasonable or probable cause to believe that the object is evidence of a crime.

4. Under the plain view exception to the 4th Amendment, "exigent circumstances" are required only when the searching authority used plain view as justification for the initial intrusion.

Gregory L. Hammel, Asst. Dist. Atty., argued the cause and Robert T. Stephan, Atty. Gen. and Michael J. Malone, Dist. Atty., were with him on the brief for appellant.

Harry E. Warren, Temporary Dist. Atty., was on the Supplemental Brief for appellant.

Jeffrey O. Heeb, Lawrence, argued the cause and was on the brief for appellee.

HERD, Justice:

This is an interlocutory appeal by the State from an order of the trial court suppressing evidence in a criminal action.

The facts out of which this action arose are complicated. On May 12, 1981, at approximately 12:30 a.m., Ms. G., a Kansas University (KU) graduate student, was attacked by a black male as she walked home. The man forced her into his car and drove her to Clinton Park in Lawrence where he raped her and sodomized her. He then left the park taking with him Ms. G's clothing, a set of keys to KU buildings issued to her, a backpack containing a textbook with the victim's name in it, a swim cap, a coin purse and other items. Ms. G went to her apartment immediately after the incident and reported it to the police who came and took her statement that night. The next day she aided the police in assembling a composite of her assailant and notified them of the items of personal property taken from her by the rapist.

On July 8, 1981, at approximately 10:20 p.m., Ms. R. was jogging on the KU campus when she was attacked from behind by a black male wearing a sleeveless tank top shirt. He threatened Ms. R with a knife and dragged her down a hill into a bushy area where he raped and sodomized her. Ms. R managed to struggle free and run to a nearby street where she received a ride from a passing motorist. She notified the KU police who went to the area and found a billfold containing the driver's license of Sherman L. Galloway. The next day officers of the KU police department (KUPD) submitted to Ms. R a photographic lineup of eight black males. From the photographs she identified Sherman L. Galloway.

During the afternoon of July 9, 1981, a warrant for the arrest of Sherman L. Galloway was issued charging him with the rape (K.S.A. 21-3502) and aggravated sodomy (K.S.A. 21-3506) of Ms. R. The same day Lt. Detective Vic Strnad of the KU police department obtained a search warrant for the residence of Sherman Galloway. The officers were authorized to seize "one (1) sleeveless tank top shirt appearing to be brown in color with horizontal stripes and one (1) knife with a curved blade approximately 3/4 inch wide and approximately three to four inches long."

KU Detectives Strnad and Mike Riner and Lawrence police Detective Mike Hall executed the warrants during the evening of July 9, 1981. Detective Hall found a knife, which he seized, in the drawer of a nightstand. Next to the knife he observed a ring with KU keys on it. Detective Hall showed the keys to Detective Riner who also recognized them as KU keys. The officers then seized the keys. Other property taken in the search included drug paraphernalia and a portable food warmer marked "Property of Domino's Pizza. If found return to Domino's for reward."

On July 14, 1981, Detective Hall contacted Ms. G and showed her a ring of KU keys. She identified the keys as those taken from her by the person who sexually assaulted her on May 12. She later identified Galloway as her assailant from a photographic lineup.

On July 22, 1981, Detective Hall obtained a warrant authorizing another search of Galloway's residence, along with his automobile. Property listed on this search warrant included most of the things taken from Ms. G when she was attacked. During this search officers found and seized Ms. G's backpack, textbook, class notes and swim cap.

On July 24, 1981, an amended complaint was filed charging Galloway with rape and aggravated oral sodomy concerning Ms. R and kidnapping (K.S.A. 21-3420), aggravated robbery (K.S.A. 21-3427), rape and aggravated sodomy concerning Ms. G. The Ms. R charges were later severed from the Ms. G charges.

On September 25, 1981, Galloway filed a motion to suppress the KU keys seized from his residence on July 9, 1981. The trial court granted the motion and the State took an interlocutory appeal. The Court of Appeals, in an unpublished opinion, 646 P.2d 1163, upheld the trial court. This court then granted the State's petition for review.

The sole issue in this interlocutory appeal concerns the propriety of the seizure of the KU keys during the July 9, 1981, search of the appellee's residence.

As a preliminary matter appellee contends the KU police officers were acting beyond the scope of their authority when they searched his residence, which was not located on KU property. Apparently the KUPD anticipated just such an argument. At the preliminary hearing Detective Riner testified he had been issued a card which certified that he was commissioned as a police officer of the City of Lawrence. The issue has no merit.

The essence of this search and seizure case pertains to the "plain view" exception to the 4th Amendment. Let us examine the development of the doctrine in detail. At the outset it should be borne in mind the 4th Amendment fundamentally guarantees protection against "unreasonable" searches and seizures. Thus "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." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). These exceptions are "jealously and carefully drawn ...." Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). "[T]he burden is on those seeking the exemption to show the need for it." United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951). A particular 4th Amendment violation may seem trivial and technical:

"[B]ut illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886).

The 4th Amendment also states "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." Thus, absent one of those well-delineated exceptions, the seizure of items not particularly described in a search warrant is unconstitutional. An early Supreme Court case applied this rule strictly against the government. Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927) was concerned with the execution of a search warrant at the defendant's premises for intoxicating liquors and articles for their manufacture. Officers entered the premises and upon observing liquor being illegally served, they placed the defendant under arrest. A subsequent search yielded a large quantity of liquor along with bills and ledgers. The court held the seizure of these items could not be justified under the search warrant, stating:

"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." 275 U.S. at 196, 48 S.Ct. at 76.

The inconsistency created by Marron was obvious. When a search warrant was involved, nothing was left to the officer's discretion. When the officer happened to make an arrest, however, he was accorded the discretion to make the decision of what to seize.

The doubts resulting from Marron were at least partially eliminated by the court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. denied 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971). The plurality opinion of Justice Stewart discussed the propriety of seizing items while executing a search warrant naming other objects:

"It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the...