State v. Jaso, 53038

Decision Date16 July 1982
Docket NumberNo. 53038,53038
Citation231 Kan. 614,648 P.2d 1
PartiesSTATE of Kansas, Appellant, v. Eddie JASO, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.

2. One of the specifically established and well-delineated exceptions to the Fourth Amendment ban against warrantless searches is the so-called "automobile exception" recognized in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

3. If probable cause exists to justify the search of a lawfully stopped vehicle, it also justifies the search of every part of the vehicle and its contents that may conceal the object of the search.

4. Even though probable cause exists to believe contraband is located in a lawfully stopped vehicle it will not justify the warrantless search of containers in the vehicle if such containers could not possibly contain the sought-after contraband.

5. 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.

R. Michael Jennings, Asst. Dist. Atty., argued the cause, and Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellant.

Kiehl Rathbun, Wichita, argued the cause and was on the brief for appellee.

HOLMES, Justice:

This is a search and seizure case which must be viewed in light of the recent decision in United States v. Ross, --- U.S. ----, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). It involves the warrantless search of an automobile and its contents.

The State of Kansas brings this interlocutory appeal from an order of the district court suppressing certain physical evidence recovered by Wichita police in a warrantless search of a suitcase which was found in a warrantless search of an automobile driven by the defendant. The Court of Appeals, in an unpublished opinion, affirmed the district court order suppressing the contents of the suitcase, but reversed the district court as to the initial search of the automobile. State v. Jaso, 642 F.2d 582, 1982. We granted review of the Court of Appeals decision upon a petition filed by the State. A rather detailed statement of the facts is necessary before turning to the issues involved on appeal.

On May 22, 1980, undercover narcotics detective Kim Brewer of the Wichita police department purchased 100 Quaaludes, pills in tablet from which contain the controlled substance methaqualone (K.S.A. 65-4107(e)(1)), from Joseph Espinoza. The purchase was made in the parking lot of the Riverbend Apartments in Wichita. Espinoza had obtained the Quaaludes from an apartment in building # 3000 of the apartment complex. Brewer desired to capture Espinoza's supplier and told Espinoza he was interested in purchasing 10,000 more. Espinoza went back to building # 3000 and returned shortly with the information that he could furnish 10,000 pills the next day and if Brewer was interested, he should call. Brewer then departed from the apartment complex to set up a further purchase in order to capture Espinoza's suppliers.

Early the next morning Brewer telephoned Espinoza advising that he wanted to buy 10,000 Quaaludes. Espinoza replied that he would contact "his man" and then get back in touch with Brewer. A short time later, Espinoza called and said his man could furnish 10,000 Quaaludes for $20,000.00. Brewer agreed. In subsequent calls, Brewer and Espinoza arranged to complete the transaction later that morning at the parking lot of a shopping center close to the Riverbend Apartments.

Brewer then met with other members of the narcotics section of the Wichita police department and Assistant District Attorney Doug Roth. Brewer informed Roth of the 100 pills he bought from Espinoza the previous evening and the arrangements he had made to buy 10,000 more later that morning, and indicated he might need a search warrant for the apartment from which Espinoza was getting the pills.

A surveillance was set up to determine the apartment from which Espinoza was getting the pills and to assist in the "buy-bust" which Brewer would make at the shopping center and the arrest of Espinoza's suppliers at the apartment building. Assistant District Attorney Roth and Detective Jack Henderson remained at the station to monitor the radio transmissions of the surveillance team. Brewer wore a body-pack radio which would transmit Brewer's conversation with Espinoza. Captain Brown and Lieutenant Fulton would stay in range of Brewer's body-pack. Detectives Trainer and Herbel would maintain stationary surveillance of apartment building # 3000. Detectives Meyers and Barnes would be on foot posing as gardners in front of the apartment building in order to ascertain the apartment number when Espinoza came out with the pills. Other detectives would be in their vehicles in the area to assist if necessary. All the officers were in direct radio communication with each other. These plans were carried out.

Later that morning officers saw Espinoza approach apartment building # 3000. Shortly thereafter defendant Eddie Jaso came from the area of building # 3000 and proceeded to the parking lot and a blue Monte Carlo automobile parked in the lot. Eddie Jaso then returned from the parking lot carrying a blue suitcase and entered apartment # 3003. Espinoza then came out of apartment # 3003, got into his car and drove to the shopping center where he met Brewer. Espinoza told Brewer that the pills were being counted and if Brewer could wait until 9:00 o'clock a. m., he would deliver as many as had been counted and let him know about the rest. Brewer agreed. Espinoza then left the parking lot, returning to the Riverbend Apartments where he entered apartment # 3003. Shortly thereafter Espinoza emerged from the area of apartment # 3003 carrying a full brown grocery sack, got in his car and departed for the shopping center parking lot where he delivered 5,000 Quaaludes, which he had in the sack. He told Brewer that the rest were back at his man's place where three people were counting them and that there were approximately 3,000 more pills. At Brewer's signal, officers of the surveillance team moved in and Espinoza was arrested. Brewer and several other surveillance team members then went to the parking lot of the Riverbend Apartments to wait for the issuance of a search warrant for apartment # 3003.

In the meantime Assistant District Attorney Roth and Detective Henderson applied to Judge Robert C. Helsel for a warrant to search apartment # 3003 for the rest of the Quaaludes. The warrant was issued. At about the same time Eddie Jaso came out of the apartment area and got into a brown Chevrolet automobile in the parking lot. Another individual, who turned out to be Charles Jaso, Eddie's brother, was in the car. Jaso did not have a blue suitcase with him. Captain Brown, a member of the team, radioed Detective Booth to follow and stop the brown Chevrolet. The surveillance team was advised by radio that Judge Helsel had signed the warrant. Several officers then went to the door of apartment # 3003 and knocked. Receiving no response, they shouted that they were police officers and that they had a search warrant. They knocked again and still received no response. The door was then forced open and no one was found inside the apartment. On a table they found a broken white pill they recognized as a Quaalude and covering about one-third of the surface of the table was a white powdery residue. In another room they found another broken Quaalude but there was no blue suitcase in the apartment and they did not find any of the 3,000 pills Espinoza had said were there. The officers then discovered for the first time that the apartment had a back door which had not been under surveillance. Obviously the sellers and the remaining drugs had departed through the rear door.

As the apartment was being entered, Detective Booth stopped the brown Chevrolet after pursuing it at speeds in excess of 50 miles per hour. He removed the occupants, who were identified as the Jaso brothers, and each was arrested, handcuffed and placed in a separate police car. Booth then radioed Lieutenant Fulton that he had stopped the car and had the occupants under arrest. Fulton told him the pills were not in the apartment and directed Booth to search the car. Booth began looking for the missing Quaaludes. He did not know where in the car the drugs might be located and did not know what kind of container the drugs were in. He had not been advised to look for a blue suitcase. In conducting the search of the stopped car, Booth removed the key from the ignition, unlocked the trunk and, finding a blue suitcase, opened it and discovered a large quantity (approximately 2,000) of Quaaludes and other evidence. The blue suitcase was later identified as the one Eddie Jaso carried into the apartment that morning. Booth did not have a search warrant for the car or the blue suitcase and defendant did not consent to the search.

Defendant Eddie Jaso filed a motion in the trial court to suppress the admission into evidence of both the blue suitcase and its contents. In a pretrial hearing the court found that although there was probable cause to stop and arrest the defendant and his brother, there were no exigent circumstances and that the warrantless search of the car and the suitcase were illegal. The admission in evidence of the suitcase and its contents was suppressed. On appeal by the State, the Court of Appeals found there was probable cause to search the...

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