State v. James

• Decision Date: 09 November 2012
• Docket Number: No. 106,083.,106,083.
• Citation: 288 P.3d 504
• Parties: STATE of Kansas, Appellee, v. Tommy Ray JAMES, Appellant.
• Court: Kansas Court of Appeals

288 P.3d 504

STATE of Kansas, Appellee,

v.Tommy Ray JAMES, Appellant.

No. 106,083.

Court of Appeals of Kansas.

Nov. 9, 2012.

Syllabus by the Court

1. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Generally, a warrantless search is unreasonable.

2. In Kansas, the recognized exceptions to the warrant requirement include consent, search incident to a lawful arrest, stop and frisk, probable cause plus exigent circumstances, the emergency doctrine, the plain view doctrine, and inventory searches.

3. Because a lawful arrest based on probable cause is a reasonable intrusion under the Fourth Amendment, a search incident to the arrest requires no additional justification.

4. It is the fact of the lawful arrest that establishes the authority to search an arrestee's person, and a law enforcement officer need not indicate any subjective fear of the arrestee to justify the search.

5. A law enforcement officer may inspect containers found on an arrestee's person incident to a lawful arrest that could contain a weapon or evidence probative of criminal conduct.

6. The Fourth Amendment and the recognized exceptions to the warrant requirement adequately protect the text messages contained in a cell phone or other electronic devices.

7. As part of a search incident to arrest, it is reasonable for a law enforcement officer to inspect the text messages on a cell phone found on an arrestee's person for evidence probative of criminal conduct.

8. Inadmissible hearsay is a statement made other than by a witness testifying at a hearing that is offered to prove the truth of the matter asserted. Statements that are neither true nor false are not hearsay.

9. Although there may be instances in which an assertion is made in the form of a question, generally questions do not constitute hearsay.

10. Opinion testimony from a law enforcement officer who possesses knowledge, training, or experience in the terminology or jargon used in drug transactions may help a jury understand his or her testimony. It is unnecessary for a law enforcement officer to describe the methodology used to decipher a message if the terminology used is not complex.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Stephen Hunting, county attorney, Heather R. Jones, former county attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., PIERRON and MARQUARDT, JJ.

BRUNS, J.

A jury convicted Tommy Ray James of possession of marijuana with the intent to sell, possession of marijuana without a tax stamp, possession with the intent to use drug paraphernalia, transporting an open container, and faulty equipment. Prior to trial, James had pled no contest to an ignition interlock violation. The district court sentenced James to 44 months in the custody of the Secretary of Corrections but granted him a durational departure for a total term of 30 months. On appeal, we find no constitutional violations, no reversible error committed by the district court, and no prosecutorial misconduct. Thus, we affirm.

Facts

On the night of December 10, 2009, Master Deputy Mike Voigts was patrolling a section of Interstate 35 in Franklin County. As he drove his patrol car southbound, Deputy Voigts saw an SUV travelling northbound with one headlight out. Deputy Voigts turned his patrol car around and initiated a traffic stop. In doing so, the deputy noticed that a male was in the driver's seat and that a female was in the passenger seat.

Deputy Voigts approached the vehicle and told the driver that one of his headlights was out. Immediately, the deputy smelled the odor of alcohol coming from the SUV. The driver got out of the SUV, although Deputy Voigts never made the request, to check his headlight. While outside the vehicle, Deputy Voigts noticed that the driver's breath also smelled of alcohol.

Once the driver had confirmed that his headlight was out, Deputy Voigts requested his driver's license and proof of insurance. The deputy identified the driver as James and also determined that James was the owner of the SUV. Because James did not have proof of insurance with him, he stepped to the back of the SUV and made a call on his cell phone to a person he said was his girlfriend to try to obtain his insurance information.

After James finished his cell phone conversation, Deputy Voigts asked him if he had been drinking alcohol. James initially denied that he had been drinking, but he told the deputy that his passenger had been doing so. When Deputy Voigts told James that he could still smell the odor of alcohol when he was talking to him, James admitted that he had drunk one or two drinks in Emporia earlier in the evening.

With James standing at the back of the SUV, Deputy Voigts went to talk to the passenger and asked her to get out of the vehicle. When she did so, the interior light of the SUV came on and the deputy noticed what appeared to be a less-than-full bottle of alcohol on the floor behind the driver's seat. Deputy Voigts then returned to James to ask him about the bottle.

After James admitted that he knew the bottle was in his SUV, Deputy Voigts placed him in handcuffs and advised him of his Miranda rights. James agreed to talk to the deputy and said he had purchased the alcohol in Emporia. Although James initially said there was nothing else illegal in the SUV, he later admitted that there were paper cups in the cup holders near the SUV's center console that contained mixed drinks. James also admitted that he and his passenger had been sipping on the mixed drinks on the way back from Emporia. Based on this information, Deputy Voigts returned to the SUV to search for additional evidence.

Upon opening the glove box of James' SUV, Deputy Voigts found a large plastic bag containing green vegetation that he believed to be marijuana. The plastic bag was sitting on top of some papers and other things in the glove box. The Kansas Bureau of Investigation later determined that the plastic bag contained 221.59 grams—or approximately a half pound—of marijuana. Although Deputy Voigts did not smell marijuana prior to opening the glove box, he observed two air fresheners hanging from the SUV's rearview mirror.

After finding the large plastic bag of marijuana in the glove box, Deputy Voigts also advised the passenger of her Miranda rights. The passenger agreed to speak with the deputy and denied that the marijuana belonged to her. She also told Deputy Voigts that she had ridden with James to Wichita and that she did not know there was marijuana in the SUV's glove box.

Deputy Voigts returned to James—who was standing in front of the deputy's patrol car—and told him that he found what appeared to be a half pound of marijuana in the glove box of the SUV. Further, Deputy Voigts reminded James of his Miranda rights before asking him questions about the marijuana. Although James told the deputy that he did not know anything about marijuana, he suggested that his brother may have left the marijuana in his SUV. When Deputy Voigts pointed out that he found the marijuana in the glove box located near where the passenger was sitting, James stated—on more than one occasion—that it was his vehicle and that he would take responsibility.

Shortly thereafter, James once again told Deputy Voigts that the marijuana might belong to his brother. James, who was still in handcuffs, suggested that he could call his brother. Although James told Deputy Voigts that he did not know his brother's phone number, he said that he was “pretty sure” the number was in his cell phone. He then stuck out his hip so Deputy Voigts could retrieve the cell phone from his pants pocket. While removing the cell phone from James' pocket, the deputy asked “are there going to be any text messages on here relating to drug sales?” And James responded that there was nothing about drugs on his phone.

Deputy Voigts proceeded to look at the cell phone in James' presence. In scrolling through James' text messages, the deputy found two incoming messages that caught his attention. On December 8, 2009, a person named Ash sent a text message to James' cell phone, which read: “U got green I will meet U somewhere.” Another text message, sent on December 9, 2009, said, “Hey T–Ray this is Cotie. U got a 20?”

At no point did James tell Deputy Voigts he could not search the text messages on his phone, and it appears from the video tape that the deputy did not have to use a password to gain access to the text messages. When asked about the text messages, James denied having any knowledge of them. James then asked Deputy Voigts what was going to happen to his SUV, and the deputy responded that it depended upon whether he found “scales or anything like that” in the vehicle.

Deputy Voigts then returned to James' SUV to search for evidence relating to the marijuana. Upon looking under some papers in the glove box where he had found the marijuana, the deputy discovered mechanical scales. As Deputy Voigts walked back towards his patrol car, James asked if he was “finding any scales,” and the deputy said, “Yeah, right there.” The deputy also told James that he found the scales in the “same place as where the marijuana was” discovered. When asked about the scales, James told Deputy Voigts they were a “hood ornament.”

The State filed a complaint against James on December 29, 2009. James was charged with possession of marijuana with intent to sell or distribute, unlawfully arranging sales or purchases of controlled substances using a communication device, felony possession of drug paraphernalia, and various other offenses. On June 1, 2010, James filed a motion to suppress the evidence seized during the traffic stop.

An evidentiary hearing was held on June 29, 2010, at which both Deputy Voigts and James testified. In addition, a video tape of the traffic stop was presented. After considering the evidence, the district court denied the motion to suppress....