State v. Houze, 74419

• Decision Date: 10 January 1997
• Docket Number: No. 74419,74419
• Citation: 930 P.2d 620,23 Kan.App.2d 336
• Parties: STATE of Kansas, Appellee, v. Anthony HOUZE, Appellant.
• Court: Kansas Court of Appeals

Page 620

930 P.2d 620

23 Kan.App.2d 336

STATE of Kansas, Appellee, v. Anthony HOUZE, Appellant.

No. 74419.

Court of Appeals of Kansas.

Jan. 10, 1997.

Review Denied March 18, 1997.

Syllabus by the Court

1. A warrantless search of a person is permissible where there is probable cause for the search and exigent circumstances justify an immediate search.

2. Probable cause to justify a warrantless search exists where the facts and circumstances within the knowledge of the officer making the arrest or search, and of which the officer had trustworthy information, are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed.

3. Exigent circumstances may exist to justify a warrantless search where a police officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband. In each case, the particular facts must be considered.

J. Patrick Lawless, Jr., and Alice Craig, Assistant Appellate Defenders, and Steven R. Zinn, Deputy Appellate Defender, for appellant.

Thomas R. Stanton, Assistant County Attorney, Julie McKenna, County Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before PIERRON, P.J., and ROGG, Special Judge, and DAVID PRAGER, Chief Justice Retired, Assigned.

DAVID PRAGER, Chief Justice Retired Assigned:

Anthony D. Houze appeals his convictions of possession of cocaine with intent to sell and possession of a controlled substance without a tax stamp affixed.

On the basis of a confidential informant's tip, the police stopped Houze as he walked from his parked car towards a residence. They searched him without a warrant, discovered cocaine in his possession, and arrested him. Houze filed a motion to suppress the evidence found during the search, and the district court denied it. He was then tried by the court on stipulated facts, found guilty, and sentenced to a controlling period of 15 months and a 26-month period of postrelease supervision. He appeals the denial of his motion to suppress and the postrelease supervision provision of his sentences.

The first issue to be determined is whether the trial court erred in denying Houze's motion to suppress the evidence found during the warrantless search of his person.

In determining whether a district court erred in not suppressing evidence during a warrantless search, an appellate court normally gives great deference to the factual findings of the district court. However, the ultimate issue of whether the evidence should have been suppressed is a legal question requiring independent appellate determination. State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995).

On a motion to suppress evidence, the State bears the burden of proving the lawfulness of a search and seizure. Searches conducted without a warrant issued on probable cause are per se unreasonable under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, subject only to a few specially established and well-delineated circumstances. State v. Platten, 225 Kan. 764, Syl. p 3, 594 P.2d 201 (1979).

The exception relied upon by the State in this case is the exception which allows a warrantless search where there is probable cause for the search and exigent circumstances which justify an immediate search. Probable cause to justify a warrantless search exists where "the facts and circumstances within the knowledge of the officer making the arrest or search, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." State v. Hays, 221 Kan. 126, Syl. p 1, 557 P.2d 1275 (1976).

Exigent circumstances exist where the police officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband. In each case, the particular facts must be considered. See 79 C.J.S., Searches and Seizures § 63, and the many cases cited therein.

The use of informants can be an acceptable method of establishing probable cause. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Courts should use a totality of the circumstances test in evaluating whether there is probable cause based on an informant's tip. In this case, an analysis of the facts indicates that the officers had probable cause for the search. They had personal knowledge that the confidential informant had proven to be accurate in at least 5 prior investigations. They had no reason to believes this time would be any different. This informant had predicted with great accuracy the motel where Houze would be later in the evening, the car and license tag number of the car he would be driving, and the time he would be there. The police independently verified each of the aspects of the informant's tip. The informant's accuracy in predicting these details indicated the informant was privy to accurate information about Houze and his activities, allowing a reasonable belief that the informant's assertions that Houze dealt in drugs and would be in possession of drugs that evening would also be true. It should also be noted the informant advised the police that he had had contact with Houze on that day and had observed him with drugs.

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), the Supreme Court addressed a situation where a federal narcotics agent conducted a warrantless arrest of a subject on the basis of an informant's tip. The informant gave a description of a person who would be arriving on a train during a certain time period in possession of a quantity of heroin, but gave no indication of the basis for the information. The Court found probable cause for the arrest and search, noting the informant had proven reliable on previous occasions and had given a detailed description of the subject and predicted his whereabouts at a particular time, all of which had been independently verified by the investigating agent. The court stated that, surely, with every bit of the information being thus personally verified, the agent had reasonable grounds to...