State v. Garcia

• Decision Date: 28 February 1992
• Docket Number: No. 65530,65530
• Citation: 827 P.2d 727,250 Kan. 310
• Parties: STATE of Kansas, Appellant, v. Feliz GARCIA, a/k/a Felix Garcia, a/k/a Felip Garcia, Appellee.
• Court: Kansas Supreme Court

Page 727

827 P.2d 727

250 Kan. 310

STATE of Kansas, Appellant, v. Feliz GARCIA, a/k/a Felix Garcia, a/k/a Felip Garcia, Appellee.

No. 65530.

Supreme Court of Kansas.

Feb. 28, 1992.

Syllabus by the Court

1. Upon the hearing of a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. An appellate court will uphold a trial court's suppression of evidence if that ruling is supported by substantial competent evidence.

2. If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court.

3. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, "substantial evidence" is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.

Rodney H. Symmonds, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellant.

Don W. Lill, Emporia, argued the cause and was on the briefs, for appellee.

LOCKETT, Justice.

The district court suppressed evidence obtained from a search of defendant's vehicle and statements the defendant made after he was issued a warning ticket, released from custody, and then again detained by the officer. The State's interlocutory appeal claims a lack of substantial competent evidence in support of the trial court's rulings that (1) there was an illegal seizure of the defendant, (2) defendant's consent to a search of his vehicle was not voluntary, and (3) defendant's statements were not voluntary. In a 2-1 decision, the Court of Appeals reversed the district court in an unpublished opinion filed August 9, 1991, 815 P.2d 128, holding there was insufficient evidence to support the district judge's finding that Garcia's consent to the search of the vehicle was not voluntary. Garcia's petition for review was accepted by this court.

On March 20, 1990, Kansas Highway Patrol Trooper John Marmon and other officers were conducting truck checks on Interstate 35. Trooper Marmon observed a vehicle change from the outside lane to the inside lane to safely pass the stopped truck and then return to the outside lane without signaling a lane change. Marmon left other officers to check the stopped truck, got into his automobile, followed the vehicle, and subsequently stopped it 9 miles from the check area between 11:02 and 11:05 a.m.

After stopping the vehicle, Marmon asked the driver for his license. The license indicated that the driver was Feliz Garcia, the defendant. Marmon requested the vehicle's registration and proof of insurance. Garcia reached into the glove compartment and started leafing through papers. Marmon asked Garcia who owned the vehicle. Garcia responded his brother did. Marmon ordered Garcia to gather the papers and accompany him back to the patrol car.

While in the patrol car, Garcia began searching through the documents again. During the conversation between Marmon and Garcia, Garcia stated he was en route to Kansas City to pick up his brother's girlfriend. Garcia indicated that his brother, Oscar Printz Garcia, had given him permission to use the car. Garcia testified at the suppression hearing that Marmon kept asking him if the driver's license he had handed the trooper was really his and commented that Garcia did not look Hispanic.

Garcia handed Marmon the vehicle registration receipt which indicated the vehicle was registered to Elsa M. Smith, Garcia's sister. Garcia testified that Marmon continually asked him if he had permission to drive the vehicle and whether the vehicle was stolen.

Marmon issued Garcia a warning ticket for failure to signal a lane change. After completing the warning ticket, Marmon handed Garcia the ticket. He told Garcia he was free to go. As Garcia reached to open the door and exit the patrol car, Marmon asked Garcia if he would consent to a search of the automobile. Garcia responded that he was not carrying anything in the car, and again reached for the door. Marmon again stated that he wanted to know if Garcia was carrying anything. Garcia testified that Marmon asked several times for his consent to search the vehicle. During this exchange, Garcia asked Marmon why he wanted to search the car. Marmon explained that he wanted to search the vehicle for money, drugs, weapons, and contraband. Garcia testified Marmon never indicated that he could leave, and he felt that he was not free to leave.

After several attempts, the trooper obtained Garcia's verbal consent to search the vehicle. Marmon then requested that Garcia sign a written consent form. Marmon read the written consent form to Garcia, which stated:

"I understand that I have the right to refuse to consent to the search described below and to refuse to sign this form. I further state that no promises, threats, force or physical or mental coercion of any manner have been used to obtain my consent to the search described below or to sign this form. My signature on this form indicates that I have given my consent of my own free will and the named officer(s) may conduct a search. I also understand that I have the right to withdraw or revoke this consent at anytime."

The consent form was signed at 11:30 a.m.

After signing the consent form, Garcia told Marmon there was a handgun underneath the seat of the car. When asked for the key to the trunk, Garcia informed Marmon that he did not have a key to the trunk. Marmon asked Garcia if he could return the documents to the glove compartment. While putting the documents in the glove compartment, Marmon pressed the trunk release switch which he had earlier observed and the trunk opened.

After opening the trunk, Marmon went to the rear of the vehicle and noticed the odor of marijuana. Marmon subsequently found marijuana in a blue denim bag and a suitcase. Garcia was placed under arrest and read the Miranda warnings. Garcia told Marmon that he did not know anything about the marijuana. The search lasted approximately 45 minutes and was completed at 12:17 p.m. During the search, Garcia remained in the vehicle, although Marmon indicated he was free to exit the vehicle.

After being arrested, Garcia was handcuffed and taken to the Highway Patrol office at Emporia State University. Upon arrival, Marmon called the Drug Enforcement Administration and contacted Steve Freuh, a special agent with the Bureau of Alcohol, Tobacco, and Firearms. While waiting for Freuh to arrive, Garcia repeatedly told Marmon he did not know about the marijuana. Marmon did not respond to Garcia, but explained he was waiting for the DEA agent to arrive.

At some point in their conversation, Marmon told Garcia there might be a possibility the police would allow Garcia to continue to Kansas City in a set-up type of situation. Garcia later indicated to Marmon he wanted to contact an attorney or a family member. Marmon stated that if Garcia was going to contact an attorney, the interview was done. Marmon then explained to Garcia the set-up was not possible if he (Garcia) contacted his family because it might "tip them off that they might be involved with something." Garcia responded that was fine and agreed to talk to the DEA agent first. At one point, Marmon showed Garcia the phone and once again Garcia indicated that he wanted to wait for the DEA agent. Garcia stated he believed, as a result of his conversations with the trooper, that by talking to the drug agent he would be helping himself. Marmon indicated he made no promises regarding leniency, no one threatened Garcia, and he was not aware of any promises made to Garcia.

Sixty to 90 minutes after arresting Garcia, Marmon left Garcia, still handcuffed and in the room, to weigh the marijuana. While Marmon was out of the room, Agent Freuh arrived. When Marmon returned, he noted although Garcia had signed a second waiver of rights form for the DEA agent at 3:42 p.m., the interview had not yet begun. During the interview, Garcia told the agent he did not know anything about the marijuana. Garcia testified that Agent Freuh informed him of considerably harsher federal penalties and indicated "things would be a lot easier" if he cooperated with them. Garcia slightly changed his story and signed a statement about one hour after the DEA agent had arrived.

Garcia stated he signed the statement because he was hungry, had driven all night, and was tired of the police badgering him. Garcia also stated they threatened him with a urinalysis test and a lie detector test and stated they would take fingerprints off the suitcase. The officers explained to Garcia that they wanted to record a conversation between him and his brother. Garcia stated although someone had brought him a cup of water or coffee, he was always handcuffed and had not been offered anything to eat during the interview. The district judge noted (1) the interview with the federal DEA agent lasted a considerable length of time; (2) Garcia was handcuffed during the interview; and (3) the DEA agent had used profanity when accusing Garcia of lying.

Garcia filed a motion to suppress on June 13, 1990. A hearing was held on June 28, 1990. At the suppression hearing Garcia claimed he signed the consent to search form without the opportunity to read it or to contemplate what the consent meant, and that he was not given the opportunity to examine the form outside Marmon's presence. Garcia acknowledged he understood the words in the consent form and that he was never threatened by Trooper Marmon. The consent form was signed approximately 30 minutes after the initial stop. Marmon testified that a typical stop to issue a warning ticket for a lane change or similar violation would be 10 to 15 minutes.

When questioned why he requested the search of the...