State v. Gilbert

CourtUnited States State Supreme Court of Kansas
Citation254 P.3d 1271,292 Kan. 428
Docket NumberNo. 100,150.,100,150.
PartiesSTATE of Kansas, Appellee,v.Brian A. GILBERT, Appellant.
Decision Date15 July 2011

292 Kan. 428
254 P.3d 1271

STATE of Kansas, Appellee,
Brian A. GILBERT, Appellant.

No. 100,150.

Supreme Court of Kansas.

July 15, 2011.

West CodenotesRecognized as UnconstitutionalWest's K.S.A. 22–2501

[254 P.3d 1271]

Syllabus by the Court

1. Standing is a component of subject matter jurisdiction and may be raised for the first time on appeal.

2. A passenger who is neither an owner nor in possession of an automobile lacks standing to challenge a search of that automobile under the Fourth Amendment of the United States Constitution.

Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, argued the cause and was on the briefs for appellant.Natalie A. Chalmers, assistant district attorney, argued the cause, and Jamie L. Karasek, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by BILES, J.:

[292 Kan. 428] Brian A. Gilbert was the passenger in a parked car he did not own. Law enforcement officers saw him in the vehicle and confirmed

[254 P.3d 1272]

there was an outstanding warrant for his arrest. He was taken into custody, and the car was searched incident to his arrest. Inside the car, drugs and drug paraphernalia were discovered. The State concedes the search was unconstitutional. The dispositive issue is whether a passenger who does not own or have a possessory interest in the vehicle may challenge the vehicle's search incident to the passenger's arrest.

The Court of Appeals held Gilbert had standing to contest the search under Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (traffic stop is a seizure of a passenger as well as the driver). State v. Gilbert, No. 100,150, ––– Kan.App.2d ––––, 2009 WL 2902575, at *5 (Kan.App.2009) (unpublished opinion). It reversed Gilbert's convictions and ordered suppression of the evidence [292 Kan. 429] seized in the vehicle search. The State petitioned this court for review. We find Gilbert lacks standing to challenge the vehicle search. We hold the outcome is controlled by Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (person aggrieved by an illegal search and seizure only through introduction of evidence obtained by search of third-person's premises has not had his or her Fourth Amendment rights infringed). We reverse the Court of Appeals' decision and dismiss Gilbert's appeal.

Factual and Procedural Background

On July 17, 2006, Gilbert was in the passenger seat of a parked car when a Topeka police officer approached and asked for Gilbert's identification. The officer recognized the person sitting in the driver's seat, Kate Land, because the officer had met Land and her parents a week earlier when they reported some jewelry stolen. During that meeting, Land's parents described Gilbert and told the officer they suspected Gilbert was the thief. As part of that investigation, the officer learned Gilbert had an outstanding warrant for his arrest on an unrelated matter. The warrant alleged Gilbert had failed to appear in court for a tail lamp violation; driven while his license was suspended, cancelled, or revoked; driven under the influence of alcohol or drugs; and refused to take a preliminary breath test.

The officer asked Gilbert whether he had taken care of the arrest warrant, and Gilbert said he did not know about it. While awaiting verification that the warrant was outstanding, the officer observed a Crown Royal bag on the floor beside Gilbert's feet, which the officer testified was “infamous” for being used to conceal drugs. Once the warrant was confirmed, the officer arrested Gilbert and secured him in the back of a patrol car. The officer then returned to search the car, which was registered to Land and Jane Tillman. He discovered drug paraphernalia in the Crown Royal bag, and several baggies containing crystal methamphetamine under the front passenger seat. Gilbert was charged with one count of possession of methamphetamine under [292 Kan. 430] K.S.A. 2006 Supp. 65–4160(a) and one count of possession of drug paraphernalia under K.S.A. 2006 Supp. 65–4152(a)(2). Gilbert denied ownership of the seized items.

Before trial, Gilbert filed a motion to suppress the evidence obtained during the search. He argued suppression was required on two grounds. First, Gilbert claimed he was illegally seized because the officer testified at the preliminary hearing that the warrant was unconfirmed when the officer first ran the warrant check while investigating the stolen jewelry. As such, Gilbert contended, the officer lacked grounds to request identification or run the warrant check a second time while standing beside Land's vehicle. The district court found the evidence did not support these claims and that the officer had probable cause to believe the warrant was outstanding when he questioned Gilbert. That ruling was not appealed.

Second, Gilbert argued the officer was not authorized to search the vehicle after the arrest because the officer was not searching specifically for evidence of the traffic offenses for which Gilbert was arrested, i.e., the crimes that resulted in the warrant. This argument was based on a previous version of K.S.A. 22–2501, the statute authorizing warrantless searches incident to arrest, which restricted such searches to “evidence

[254 P.3d 1273]

of the crime.” (Emphasis added.) K.S.A. 22–2501(c) (Furse). But an amendment to K.S.A. 22–2501(c) became effective a few weeks before the Gilbert search that more broadly authorized officers to search for “evidence of a crime.” (Emphasis added.) L. 2006, ch. 211, sec. 8. The district court denied Gilbert's motion to suppress because the amended statute was in effect at the time of the search and authorized the officer's action. The evidence was admitted at trial.

A jury convicted Gilbert of possession of methamphetamine and possession of drug paraphernalia. Gilbert filed a timely appeal to the Court of Appeals. He initially argued the evidence should have been suppressed because the statutory amendment did not expand an officer's authority to engage in a warrantless search incident to arrest. He also argued there was insufficient evidence that he possessed the methamphetamine.

But before oral argument was heard on those claims, this court held that the amended version of K.S.A. 22–2501 was unconstitutional.[292 Kan. 431] See State v. Henning, 289 Kan. 136, 137, 209 P.3d 711 (2009) (following Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 [2009] ). The Court of Appeals then ordered supplemental briefing on whether Henning applied retroactively to Gilbert's case. In response, the State conceded the search was unconstitutional based on the later court rulings but asserted for the first time that Gilbert lacked standing to challenge the search. The standing argument was premised on the fact that Gilbert was only a passenger in the parked car and did not have an ownership or possessory interest in the vehicle. For his part, Gilbert argued only that the search was unconstitutional under Henning; he did not respond in writing to the State's standing argument.

The Court of Appeals held Gilbert had standing to contest the search under Brendlin and declared the vehicle search unconstitutional under Henning. It then reversed Gilbert's convictions. Gilbert, 2009 WL 2902575, at *5. Notably, the Court of Appeals did not address the...

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26 cases
  • State v. Bodine, 120,620
    • United States
    • United States State Supreme Court of Kansas
    • May 7, 2021
    ...a component of subject matter jurisdiction. The question of standing is one of law over which we have unlimited review. State v. Gilbert , 292 Kan. 428, 431-32, 254 P.3d 1271 (2011). Generally, to invoke standing, a party must show that he or she suffered a cognizable injury and show a caus......
  • State v. Richard, 107,962.
    • United States
    • United States State Supreme Court of Kansas
    • September 5, 2014 challenge a search is “a component of subject matter jurisdiction, which may be raised for the first time on appeal.” State v. Gilbert, 292 Kan. 428, 431, 254 P.3d 1271 (2011). And it is an appellate court's duty to question jurisdiction on its own initiative. State v. J.D.H., 48 Kan.App......
  • State v. Thomas, 110,571.
    • United States
    • Court of Appeals of Kansas
    • January 30, 2015
    ...has further stated: “Whether standing exists is a question of law subject to unlimited review. [Citation omitted.]” State v. Gilbert, 292 Kan. 428, 431–32, 254 P.3d 1271 (2011). Hearn dealt with multiple plaintiffs who sought to enjoin the City of Overland Park from enforcing an ordinance o......
  • State v. Wilburn, 110,250.
    • United States
    • Court of Appeals of Kansas
    • August 15, 2014
    ...P.3d 718 (2013). However, questions of standing—a component of jurisdiction—are subject to unlimited review on appeal. State v. Gilbert, 292 Kan. 428, 431–32, 254 P.3d 1271 (2011).The notice of appeal was specific to Judge Welch's rulings.We begin by clarifying the issues we will examine on......
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