State v. Green

• Decision Date: 14 May 2004
• Docket Number: No. 89,308.,89,308.
• Citation: 89 P.3d 940,32 Kan.App.2d 789
• Parties: STATE OF KANSAS Appellee, v. CHARLES D. GREEN, Appellant.
• Court: Kansas Court of Appeals

32 Kan.App.2d 789

89 P.3d 940

STATE OF KANSAS Appellee, v. CHARLES D. GREEN, Appellant.

No. 89,308.

Court of Appeals of Kansas.

Opinion filed May 14, 2004.

Matthew J. Edge, assistant appellate defender, for the appellant.

Charles D. Green, appellant pro se.

Kristi L. Barton, assistant district attorney, Nola Foulston, district attorney, and Phill Kline, attorney general, for the appellee.

Before PIERRON, P.J., LEWIS and McANANY, JJ.

PIERRON, J.:

Charles D. Green appeals his conviction for possession of cocaine after a prior conviction, a severity level 2 drug felony, in violation of K.S.A. 65-4160(b). Green argues the trial court erred in failing to suppress evidence obtained after the police allegedly illegally arrested him and pumped his stomach. He also argues there was insufficient evidence to convict him of possession of cocaine. We affirm.

On August 17, 2001, Green drove to the Surf Motel in Wichita to pick up Chantel Cruz, a friend of his fiancee, Angela Taylor. Cruz had called Angela to ask if she could come stay with her. Cruz testified the motel room she called from was not hers, but was the room of "one of the girls on the street," who let Cruz use the phone to call Taylor. Cruz was going to live with Green and Taylor until she was able to get her life straightened out.

Green testified that when he arrived at the motel, Cruz was not ready to go. He became upset because Cruz had plenty of time before he got there, the motel was not in a good neighborhood, and there were drugs in the motel room. Cruz testified there was marijuana and drug paraphernalia in the room. Green said he left the motel room and was at his car when he met the police officers.

Wichita Police Officers Michael Dean and Chris Welsh were at the Surf Motel at 11:20 p.m. on the evening in question to assist undercover narcotics agents in identifying some individuals in the motel. At the motel, they heard someone yelling profanities and they discovered Green shouting into a motel room. The officers saw the object of Green's yelling was Cruz, who was crying and hysterical. The officers were wearing black T-Shirts with "Police" printed in large white letters on the front.

Concerned about a possible domestic violence situation, the officers approached Green in order to speak with him and attend to the situation. Green responded, "Fuck you; I don't need to talk to the police," and ran into the motel room and slammed the door. The officers ran to the door and broke it down. Both officers testified they were concerned about the escalation of an apparent domestic violence situation. Officer Dean testified that when they entered the room Green was heading into the bathroom looking over his shoulder. He went into the shower and was doing something with his hands around his waist area. Officer Dean grabbed Green from behind and both officers were eventually able to force Green to the ground. As they struggled, Officer Dean saw Green put his hands to his face. Green refused all commands to stop resisting, and because of his size and strength, it took a number of officers to subdue him.

During a search of Green, officers found a large amount of cash and a white pill bottle in his pockets. There was a white, powdery residue inside the pill bottle which tested positive for cocaine. During a search of the motel room, Dean found an empty baggie with the corner torn off in the shower where the struggled began. The baggie had a white, powdery residue. Dean hypothesized that when he saw Green put his hands to his face, he was probably ingesting whatever drugs were in the baggie.

After his arrest, Green began sweating profusely and became unresponsive. The police called in paramedics and told them Green may have ingested cocaine. He was then taken to the hospital. At the hospital, Green was combative, spitting on and trying to bite people, and had to be restrained by medical personnel and police officers. Dr. Martin Selberg, the emergency room physician on duty when Green arrived, testified Green was completely noncommunicative and was fluctuating between absolutely quite and still and random, violent movements. He found Green's history of possible cocaine intoxication and cocaine ingestion was consistent with his current condition. Dr. Selberg stated it was necessary to pump Green's stomach in order to deal with a potentially lethal ingestion of cocaine.

Dr. Selberg examined the contents of Green's stomach and noticed what he believed were cocaine rocks or crack rocks. Officer Long Nguyen filtered the stomach contents and found small white specks or very small items. Dean field-tested the items and they tested positive for cocaine.

Green was charged with possession of cocaine after a prior conviction and attempted aggravated battery of a law enforcement officer. Green filed a motion to suppress based on an illegal arrest and requested suppression of any evidence obtained after the arrest and the alleged illegal pumping of his stomach. The trial court denied the motion to suppress, finding the police officers had a duty to investigate the possibility of domestic violence and then had probable cause to pursue and arrest Green based on their observations in the room. The trial court also held it was more probably true than not true that the decision to pump Green's stomach was made by hospital personnel.

The jury acquitted Green on the charge of attempted aggravated battery on a law enforcement officer but convicted him of possession of cocaine after a prior conviction. The trial court sentenced Green within the presumptive sentencing range to a term of 64 months' incarceration. Green first argues the trial court erred in failing to grant his suppression motion.

When reviewing a motion to suppress evidence, the appellate court determines whether the factual underpinnings of the trial court's decision are supported by substantial competent evidence. However, the ultimate legal conclusion drawn from those facts is a legal question requiring the appellate court to apply a de novo standard of review. The appellate court does not reweigh the evidence. State v. Alvidrez, 271 Kan. 143, 145, 20 P.3d 1264 (2001).

Green argues the police lacked probable cause to arrest him because they did not witness him commit any crime. He states that his screaming and demeanor would have been insufficient to obtain a warrant and no evidence existed that he would harm Cruz. Green argues any evidence obtained after the arrest was the fruit of an illegal arrest and should be suppressed.

In his pro se brief, Green argues the entry into the motel room was illegally based on Green's use of vile and profane language. Green also challenges the warrantless pumping of his stomach and the intrusion into his body. He contends the officers had plenty of time to request a search warrant while they were at the scene that could have easily been acted upon by the time they arrived at the hospital. He maintains it is highly unlikely a magistrate would have issued a warrant since the officers did not witness Green ingest anything, nor did they see the baggie in his possession. Green also argues the police should have obtained a warrant before conducting more extensive searches and tests on the contents of his stomach. He claims the results of the tests performed on his stomach contents carry a taint of illegality because Officer Nguyen searched through the contents while alone in a utility closet.

"If a warrantless arrest is challenged by a defendant, the burden is on the State to justify the arrest was not only authorized by the statute, but that it was permissible under the Fourth Amendment to the United States Constitution. The constitutional validity of a warrantless arrest depends upon whether the arresting officer had probable cause to believe that the person arrested had committed a felony."

"Probable cause for arrest without a warrant depends upon the probabilities arising from known facts and circumstances. Probable cause exists when the practical considerations of everyday life would lead a reasonable and prudent officer to believe a felony has been or is being committed."

"In determining whether probable cause to arrest exists, all the information in the officer's possession, fair inferences therefrom, and facts may be taken into consideration that might not be admissible on the issue of guilt." State v. Aikins, 261 Kan. 346, Syl. ¶¶ 2, 3, 6, 932 P.2d 408 (1997).

The trial court correctly relied upon K.S.A. 22-2402 for authority, which allows the police to stop a person in a public place for an explanation of the person's actions when the police reasonably suspect the person is committing, has committed, or is about to commit a crime. See State v. Slater, 267 Kan. 694, 696-97, 986 P.2d 1038 (1999). The court also addressed the domestic violence situation by relying upon K.S.A. 2003 Supp. 22-2307 for authority that Officers Welsh and Dean had an affirmative duty to make an arrest in a domestic violence situation if they had probable cause to believe that a crime was being committed or had been committed. See State v. Whittington, 260 Kan. 873, 880, 926 P.2d 237 (1996).

When confronted with violent situations, police must often act quickly without complete information as to the facts. In determining if their actions violate the Fourth Amendment to the United States Constitution, we look to all the circumstances surrounding the situation. We will suppress evidence seized as a result of police actions when those actions were unreasonable under the facts.

We believe the police made a legal entry into the motel room. Cruz never objected to the officer's intrusion into the room. Neither did anyone else besides Green, who had no dominion over the room. Green had no legal ability to challenge the entry under these facts. "The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights...