State v. Garcia
| Decision Date | 09 December 1972 |
| Docket Number | No. 46817,46817 |
| Citation | 504 P.2d 172,210 Kan. 806 |
| Parties | STATE of Kansas, Appellee, v. Heidi Sue GARCIA and Vernon Eugene Bell, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. By its enactment of K.S.A.1971 Supp. 22-2501 dealing with searches incident to arrests the legislature did not forbid other warrantless searches which meet the constitutional requirement of reasonableness.
2. Grounds for an objection to the admissibility of evidence not stated to or considered by the trial court will not be considered on appellate review.
3. The record in a prosecution for misdemeanor theft is examined and it is held: (1) the fruits of a warrantless search were properly admitted into evidence, and (2) the admission of testimony concerning a codefendant's advice to remain silent was not prejudicial error.
Richard H. Seaton, of Everett & Seaton, of Manhattan, argued the cause and was on the brief for appellants.
Larry B. McGrath, County Atty., argued the cause, and Vern Miller, Atty. Gen., and James W. Morrison, Asst. County Atty., were with him on the brief for appellee.
FOTH, Commissioner:
On the night of July 31, 1971, Captain Leo Regier and Detective Al Helfferich of the Manhattan Police Department were on stakeout at the municipal parking lot at Third and Houston Streets. For some time the parking meter collections from that lot had been coming up short, and the officers were there to find out why.
They had come on duty at 9:30 p. m., and were scheduled for a four hour shift. Their vantage point was a second story, window over Green's Book Store, from which they had a clear view of the well lighted lot across the alley. Their vigil was going into its second hour when their attention was drawn to a car parking at the northwest corner of the lot. Its occupants were two men and a woman with a small child.
It was several minutes before one of the men got out of the car, went to the trunk and brought back a bottle. The three adults partook, and the bottle was replaced in the trunk. Then, before the unseen but watching eyes of the officers, one of the men approached the nearest meter and placed his hands upon it, one about where the lock would be and the other slightly below. He shortly removed them and returned to his companions who were leaning against the car.
The trio-or quartet, if one includes the baby-went in a group to the next meter east, but there just lounged about while shoppers passed by in the adjacent alley. Next, they set course to the west edge of the lot and thence due south to the meter at the southwest corner. There they surrounded the meter while the two-hand grip was repeated; this was followed by a movement to the large straw handbag carried by the woman. The next meter east received the same careful attention, but as they approached the third in the line they encountered passers-by. At this point the baby was tossed and passed from hand to hand while the group moved on to the far east end of the lot. The meter there received the familiar treatment-one hand at the lock and one below, motion to the handbag-as did the next four meters coming back to the west.
By now the watching officers had seen and heard enough-Detective Helfferich had heard the clinking of coins-and they moved out of their observation post. Helf-ferich went into the bookstore and telephoned for help, while Captain Regier went out onto the lot to make the arrest. At his approach the woman and one of the men moved away toward their car, leaving the meter-gripper standing alone by a meter. Regier identified himself and placed the abandoned one under arrest. He was found to be Thomas Russell Crow.
Crow was shepherded over to the car where by now his compenions were seated in the front seat. They were identified as Heidi Sue Garcia, who was sitting in the middle of the front seat, and Vernon Eugene Bell, who sat next to the right door. The baby was Mrs. Garcia's.
The summoned help arrived about this time, in the form of Lieutenant Alvin Johnson and seven other Manhattan police officers. Crow was frisked by the right rear fender. Bell was asked to step out and he, too, was frisked. Mrs. Garcia was asked for her handbag. This she demonstrated to be completely empty-no money, no billfold, no Kleenex, no comb, no cosmetics, no letters-nothing.
Captain Regier briefed Lieutenant Johnson on the events of the evening and his observations. He had noticed an open bag or satchel on the floor on the driver's side and asked Lieutenant Johnson to see about it. Johnson peered in with a flashlight and observed the bag. It was partially unzipped, and he could see change in the bag. Inquiry revealed that Bell owned the car, but he refused to consent to its search. Johnson nevertheless removed the bag. Mrs. Garcia protested, saying it was her baby's piggy bank. Asked if it contained quarters she said, 'Why sure.' Crow told her at this point not to say anything-that they would make bond and leave.
A later count of the contents revealed $32.00 in dimes, $27.75 in nickels, and thirty-nine pennies-all coins commonly recognized as 'parking meter money.' No quarters were found.
From the officers' point of view the only missing element in their case was a key or other instrument for opening the meters, for none showed pry marks or other evidence of tampering. The search of Crow and Bell had turned up no key, nor did an intensive search of the area. It occurred to them that Crow might have managed to slip it into the crevice between the car's trunk and the fender by which he had been searched. Lieutenant Johnson secured the keys from the ignition and opened the trunk. No key was found, but among the usual car-trunk miscellany was a small bag containing a set of files, a soldering iron, and, most significantly, a number of money wrappers of the type used by banks. These were designed for rolls of dimes, nickels and pennies.
The result was a misdemeanor charge of theft against each of the three adults. (The baby's fate is unclear.) They were jointly tried to an agreed upon six man jury, and each was convicted. Bell and Mrs. Garcia have appealed; Crow did not appear in person, was tried in absentia, and is not a party to this appeal.
Appellants' first and primary claim of error relates to the admission into evidence of the two bags and their contents taken from the car. They made a pretrial motion to suppress and renewed their objection at trial, claiming both bags were the result of an illegal search and seizure.
As to the bag taken from the front seat, we note that it was observed without entering both by Captain Regier and Lieutenant Johnson. As to it there was thus no 'search,' even though Johnson used a flashlight. State v. Karney, 208 Kan. 677, 494 P.2d 1204, Syl. 6; State v. Frizzell, 207 Kan. 393, 485 P.2d 160; State v. McMillin, 206 Kan. 3, 476 P.2d 612. The following discussion, then, is directed largely to the bag containing money wrappers taken from the trunk. Appellants' argument is that a warrantless search can only be justified if made in strict compliance with our only statute dealing with the subject, K.S.A.1971 Supp. 22-2501:
'When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of (a) Protecting the officer from attack; (b) Preventing the person from escaping; or (c) Discovering the fruits, instrumentalities, or evidence of the crime.'
The area permitted to be searched by the statute is that within the arrested person's 'immediate presence.' Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, puts a gloss on that term of constitutional dimensions. The court there analyzed the traditional justification for a 'search incident to arrest,' and formulated limitations on its scope, in the following terms:
What Chimel suggests, especially in the italicized language above, is that some of our past language in automobile search and seizure cases may have been too sweeping; in cases where the search must be justified solely as incident to an arrest, it is doubtful that officers may search a locked car trunk which is and has for some time before the arrest been clearly beyond the reach of the arrestee. Cf., State v. Blood, 190 Kan. 812, 818, 378 P.2d 548; State v. Caldrone, 205 Kan. 828, 473 P.2d 66; State v. Hunt, 198 Kan. 222, 424 P.2d 571; State v. Wood, 197 Kan. 241, 416 P.2d 729.
In each of these cases, however, whether articulated in the opinion or not, there existed an independent ground for searching the trunk; that ground was 'probable cause' to believe that it contained the fruits, instrumentalities or evidence of a crime. The Chimel court itself took express note that such probable cause may justify a warrantless search:
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