State v. Harder, 53818
| Decision Date | 02 September 1982 |
| Docket Number | No. 53818,53818 |
| Citation | 650 P.2d 724,8 Kan.App.2d 98 |
| Parties | STATE of Kansas, Appellee, v. John HARDER, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. A search implies prying into hidden places for that which is concealed, and it is not a search to observe that which is in open view. If law enforcement officers are rightfully in the position to have such a view, looking into a stopped car through the windows or open door does not constitute a search, even though it is nighttime and the items can be seen only with the aid of a flashlight.
2. When law enforcement officers have made a lawful stop of a vehicle and have probable cause to believe that contraband is in the vehicle, the officers may search every area of the vehicle and its contents which might reasonably contain the contraband without the necessity of first obtaining a warrant. Such a search may be as thorough as a magistrate could authorize by warrant.
3. K.S.A. 65-4127b (a ) is a constitutional self-contained habitual criminal act and does not deny equal protection or due process of law nor does it constitute cruel and unusual punishment.
4. A defendant's prior uncounseled misdemeanor conviction may be used pursuant to K.S.A. 65-4127b (a ) to elevate the defendant's offense to a felony if the record of the prior conviction clearly notes that the defendant waived his right to counsel and no attack on that waiver is raised at trial.
Michael P. McKone, of McKone & Unruh, Junction City, for appellant.
Keith D. Hoffman, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before SWINEHART, P.J., and SPENCER and MEYER, JJ.
This is an appeal by defendant John Harder from a conviction for possession of marijuana in violation of K.S.A. 65-4127b (a ) (3). Since this conviction was defendant's second such conviction for possession of marijuana, the offense was enhanced from a Class A misdemeanor to a Class D felony pursuant to K.S.A. 65-4127b (a ), and defendant was sentenced for a term of imprisonment of not less than one nor more than ten years.
Defendant raises the following issues: (1) Whether the trial court erred in overruling defendant's motion to suppress the marijuana that was seized from defendant's pickup truck, and (2) whether the trial court erred in ruling that the enhancement provision of K.S.A. 65-4127b (a ) which elevates a second time conviction for possession of marijuana to a felony is constitutional.
On April 6, 1981, Officers Poore and Anderson of the Abilene Police Department were on routine patrol in Abilene. At approximately 11:45 p.m., they observed a pickup truck being driven by defendant Harder. Poore had prior personal knowledge that defendant's driving privileges had been suspended, and therefore decided to stop the truck to see whether defendant was driving on a suspended driver's license. Upon stopping the truck, Poore approached the driver's side and Anderson approached the passenger's side. Sam Payne was a passenger in the truck, Poore asked defendant to produce a valid driver's license, which he did since it had been returned to defendant that very day. At that time defendant stepped out of the truck. As Poore conversed with defendant, Anderson shined his flashlight into the truck and observed what he believed to be, and what was later determined to be, a baggie of marijuana protruding from underneath the passenger seat and a marijuana pipe on the floor. Poore then shined his flashlight into the truck and observed some beer cans and a pair of needlenose pliers sticking out of the ashtray with what he believed to be a marijuana roach attached to it. Upon this observation, Poore advised defendant that he was under arrest for possession of marijuana. Immediately thereafter, the passenger Payne told the officers that it was his marijuana and not defendant's. Thereupon, Payne was also arrested for the same charge. After both were placed under arrest, Poore searched the truck and found the original baggie of marijuana, beer cans, a joint of marijuana, a pair of needlenose pliers used to smoke the joint, the marijuana pipe, and another baggie of marijuana found in an unlocked tool box located in the rear of the truck.
Defendant filed a pretrial motion to suppress evidence, alleging that the search and seizure of the marijuana from his truck was illegally obtained because the officers lacked probable cause to look inside the truck. Defendant's motion was denied, the evidence was introduced at the jury trial, and defendant was found guilty.
At sentencing, the State introduced evidence that this conviction was defendant's second conviction for possession of marijuana and sought to enhance the punishment to a Class D felony level. Defendant objected to the enhancement request, maintaining that K.S.A. 65-4127b (a ) is unconstitutional as it violates defendant's constitutional right to equal protection of the laws under the Fifth and Fourteenth Amendments and cruel and unusual punishment under the Eighth Amendment. Defendant argued that there is no reasonable or rational distinction for why second time offenders should be treated differently than first time offenders. The trial court found K.S.A. 65-4127b (a) to be constitutional and proceeded to sentence defendant as guilty of a Class D felony. Defendant appeals.
Defendant contends that the trial court erred in overruling defendant's motion to suppress the marijuana that was seized from his pickup truck. Defendant raises three sub-points within this issue: (a) Whether the officers conducted an illegal search by shining their flashlights into the dark truck without probable cause; (b) whether the warrantless search of the toolbox within which marijuana was hidden was illegal; and (c) whether the trial court erred in not placing the burden of proof upon the State to prove that the search was reasonable pursuant to K.S.A. 22-3216 (2).
Defendant contends that the search of the truck was illegal since the officers had no legal right to shine their flashlights inside the truck. We find defendant's point to be without merit. In State v. McMillin, 206 Kan. 3, Syl. p 4, 476 P.2d 612 (1970), the court held:
In State v. Wade, 206 Kan. 347, 348-49, 479 P.2d 811 (1971), the court restates the above rule and concludes: "The eye cannot commit a trespass condemned by the Fourth Amendment, and observation of that which is in plain view is not a search."
In State v. Goodman, 3 Kan.App.2d 619, 624, 599 P.2d 327 (1979), this court stated:
"[I]t has been held that merely looking through the windows of a parked car with a flashlight does not constitute a search if the police are rightfully in the position to have such a view, because observations by the eye of articles in plain view are not condemned by the Fourth Amendment."
See also State v. Moretz, 214 Kan. 370, 371-72, 520 P.2d 1260 (1974).
It is clear that since the officers had a right to be where they were, defendant having conceded that the stop was reasonable, they were within their rights to shine their flashlights into the truck.
Defendant next contends that the warrantless search of the unlocked toolbox constituted an illegal search. In State v. Jaso, 231 Kan. 614, Syl. p 5, 648 P.2d 1 (1982), the court held:
"When police officers have made a lawful stop of a vehicle and have probable cause to believe that contraband is in the vehicle, the officers may search every area of the vehicle and its contents which might reasonably contain the contraband without the necessity of first obtaining a warrant."
In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 73 L.Ed.2d --- (1982), the court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle that is as thorough as a magistrate could authorize by warrant.
Under the facts of this case, it is clear that the officers had probable cause to believe, after already finding one bag of marijuana in the truck, that the truck contained other contraband. They therefore were entitled to search the unlocked toolbox.
Defendant's third contention that the trial court incorrectly placed the burden of proof that the search was illegal with defendant must also fail. K.S.A. 22-3216 (2) provides in part: "The...
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