State v. Kirby

• Decision Date: 08 October 1987
• Docket Number: No. 60132,60132
• Citation: 744 P.2d 146,12 Kan.App.2d 346
• Parties: STATE of Kansas, Appellee, v. Greg KIRBY, Appellant.
• Court: Kansas Court of Appeals

Page 146

744 P.2d 146

12 Kan.App.2d 346

STATE of Kansas, Appellee, v. Greg KIRBY, Appellant.

No. 60132.

Court of Appeals of Kansas.

Oct. 8, 1987.

Review Granted Dec. 12, 1987.

Syllabus by the Court

1. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

2. In concluding that a "stop and frisk" was not violative of the Fourth Amendment, the court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), pursued a two-pronged inquiry: Whether the officer's action in stopping the individual is justified at its inception, and whether the search is reasonably related in scope to the circumstances justifying the initial stop.

3. A "stop and frisk"--necessarily swift action predicated upon the on-the-spot observations of the officer on the beat--is not police conduct subject to the warrant clause of the Fourth Amendment requiring probable cause to justify the search and seizure. The conduct involved is, instead, tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.

4. A "stop and frisk" under K.S.A. 22-2402 requires that the officer have a reasonable and articulable suspicion, based on fact, that the person stopped has committed, is committing, or is about to commit a crime.

5. If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence, this court on review will not substitute its view of the evidence for that of the trial court.

6. In each case involving a Terry stop, whether the officer has a reasonable and articulable suspicion to justify a stop will depend upon facts unique to that case.

7. The sole justification for a Terry search is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for an assault against the police officer. The preservation of evidence is not a permissible purpose.

8. The brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion.

9. In determining whether a Terry stop is too long, the court looks to whether the police diligently pursued a means of investigation that was likely to confirm or dispel suspicions quickly, during which time it was necessary to detain the defendant.

10. The plain view exception requires (1) the initial intrusion which afforded authorities the plain view must be lawful; (2) the discovery of the evidence must be inadvertent; and (3) the incriminating character of the article must be immediately apparent to searching authorities.

11. Evidence is not "fruit of the poisonous tree" merely because it would not have come to light except for the illegal police activity. Instead, the inquiry is whether the evidence objected to came to light by exploitation of that illegality.

12. Under State v. Knapp, 234 Kan. 170, 176, 671 P.2d 520 (1983), in determining if evidence obtained following an illegal arrest is sufficiently attenuated to allow admission of the evidence, four factors are to be considered: (1) Whether Miranda warnings were given; (2) the temporal proximity of the illegal arrest and the statement, confession, or consent to search; (3) the purpose and flagrancy of the officer's misconduct; and (4) other intervening circumstances. Those same factors are to be considered in determining whether evidence obtained following an illegal search is admissible.

13. Two important questions arise, under the facts of this case, regarding the consideration of "other intervening circumstances": First, were the acts of the defendant in returning to the police station and in making a confession acts of free will sufficient to purge the primary taint of the illegal search? Second, was the confession primarily the result of the police confronting the defendant with illegally obtained evidence, thus clearly an exploitation of that illegality?

14. In most cases where the defendant is confronted with the illegally seized evidence, unless there is some other intervening circumstance such as an act of free will, the confession will be an exploitation of the illegality.

15. In defendant's direct appeal of his criminal conviction wherein defendant contends the trial court erred in denying his motion to suppress both the evidence seized and his subsequent confessions, it is held: The deputy had a reasonable and articulable suspicion to justify his stopping the defendant; however, the search of the truck bed was illegal as exceeding the scope of a permissible Terry search, and the continued detention of defendant exceeded the limited duration of a permissible Terry stop. Since the continued illegal detention of the defendant afforded the plain view of the marijuana, the officer's observation of the marijuana does not fall within the plain view exception and the resulting tow-in and inventory search of the truck were improper. Upon consideration of the factors set forth in State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983), the trial court had substantial evidence to conclude that defendant's confession was the result of defendant's own acts of free will which were sufficient to purge the taint of the illegal search and subsequent seizure of the truck. When coupled with the stipulated evidence, defendant's confession was sufficient to support his conviction.

Lucille Marino, Asst. Appellate Defender, and Benjamin C. Wood, Chief Appellate Defender, for appellant.

Eric S. Rosen, Asst. Dist. Atty., Gene M. Olander, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before DAVIS, P.J., and REES and BRISCOE, JJ.

BRISCOE, Judge:

Defendant, Greg Kirby, appeals his conviction on one count of burglary (K.S.A. 21-3715) and one count of theft (K.S.A. 1986 Supp. 21-3701).

Defendant contends the trial court erred (1) in denying defendant's motion to suppress evidence which was seized; and (2) in denying defendant's motion to suppress his confession. Defendant argues the court should have suppressed the evidence because it was obtained pursuant to an illegal stop and as a result of an illegal search and seizure. He argues his subsequent confession was also tainted by the illegal search and seizure.

In the early morning hours of April 17, 1986, Shawnee County Deputy Sheriff Schmelzle was patrolling northbound on Urish Road in rural Shawnee County when he observed a pickup truck parked on the side of the road at about the 400 block of Urish Road. The truck was facing south with its headlights off and its domelight on. As the deputy approached, the domelight was switched off and, as he passed, the truck was started and driven south. The deputy turned around and followed the truck. At the suppression hearing, the deputy testified he decided to follow the truck because of reports of deer poaching in that area.

As the deputy followed the truck, he observed there were some articles in the truck bed covered by a tarp. He also observed that the truck had no license tag but did have a small piece of paper taped in the window. After following the truck to SW 10th, the deputy stopped the truck. The deputy approached the cab of the truck and shined his flashlight into the cab to check for weapons, but saw no weapons or anything else out of the ordinary. He asked the driver and his passenger for identification. Each provided the deputy with a Kansas driver's license. The deputy identified the driver as defendant and the passenger as John Keith, Jr. The deputy asked defendant what was under the tarp. His response was unresponsive: he stated they had been working on the truck all day. The deputy then asked if he could look under the tarp. Defendant asked the deputy if he had a search warrant, to which the deputy responded in the negative.

As the deputy walked back toward his patrol car, he looked into the bed of the truck and saw what he believed to be the outline of the back of a TV underneath the tarp. He then radioed the sheriff's department for assistance. The sheriff's department in turn called for a back-up from the Topeka police department.

Officer Steve Taylor of the Topeka police department responded to the call. When the police officer arrived, he was advised of the situation by Cpl. Bentley, who had also recently arrived from the sheriff's department. Taylor and Bentley proceeded to remove the tarp from the back of the truck. In the truck bed were a microwave oven, a VCR, a 19-inch color TV, a 13-inch black and white TV, and various VHS video tapes. After the tarp was removed and the items recovered, the officers ordered defendant and his passenger to get out of the truck and then patted them down for weapons. The officers recorded the serial numbers of the items and ran them through the computer to determine if they were reported stolen. None of the items were reported stolen. Defendant and his passenger were then asked if they owned the property, to which they responded in the negative. They claimed they found the items along the road.

A warrant check of defendant's and the passenger's names was also conducted with negative results. Officer Taylor then looked through the passenger window into the pickup cab where he saw a leafy substance which he believed to be marijuana, along with an orange package of ZigZag papers lying in a Frisbee. On the basis of his belief that the truck contained marijuana, the officer had the truck and its contents towed to police headquarters. An inventory search of the vehicle was then...