State v. Mccammon

• Decision Date: 04 March 2011
• Docket Number: No. 102,713.,102,713.
• Citation: State v. Mccammon, 45 Kan.App.2d 482, 250 P.3d 838 (Kan. App. 2011)
• Parties: STATE of Kansas, Appellee,v.Aaron McCAMMON, Appellant.
• Court: Kansas Court of Appeals

45 Kan.App.2d 482

250 P.3d 838

STATE of Kansas, Appellee,

v.Aaron McCAMMON, Appellant.

No. 102,713.

Court of Appeals of Kansas.

March 4, 2011.

[250 P.3d 839 , 45 Kan.App.2d 482]

Syllabus by the Court

1. One who seeks to challenge the legality of a search as a basis for suppressing relevant evidence must claim either to have a proprietary or possessory interest in the premises searched, or to have owned or possessed the seized property.

2. The mere observation of anything that comes into view during an otherwise lawful search is not an independent search implicating the Fourth Amendment to the United States Constitution because it produces no additional invasion of privacy interests beyond those already jeopardized.

3. The recordation of a vehicle identification number (VIN) does not meaningfully interfere with any possessory interest in the vehicle and therefore does not constitute a seizure implicating the Fourth Amendment.

4. Because of the important role played by the VIN in the pervasive governmental regulation of the automobile and the efforts by the federal government to ensure that the VIN is placed in plain view, there is no reasonable expectation of privacy in the VIN.

5. If the Fourth Amendment is not implicated by a search or a seizure, or an invasion of one's reasonable expectation of privacy, that ends the inquiry on review; it does not matter if the governmental action is reasonable or not.

6. Where a party's strategic choices at trial have adverse consequences, we must refuse to grant relief on appeal from those same choices.

7. When a criminal defendant agrees to stipulated facts without objection, he or she is precluded from arguing on appeal that the evidence was not sufficient to support the conviction if it was conceded in the stipulation or otherwise that the conviction was supported by sufficient evidence.

8. Possession by an accused of recently stolen property is sufficient to sustain a conviction of theft where a satisfactory explanation is not given, particularly where the nature of the items and their condition support an inference that they have been stolen.

Randall L. Hodgkinson and Alice L. Walker, legal intern, of Kansas Appellate Defender Office, for appellant.Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, for appellee.Before GREENE, C.J., BUSER and ATCHESON, JJ.GREENE, C.J.

Aaron E. McCammon appeals his convictions for four counts of theft in violation of K.S.A. 21–3701(a)(4), (b)(3), arguing the district court erred in the denial of his motion to suppress evidence and challenging the sufficiency of the evidence to support his convictions. Concluding there was no error in denying the suppression motion and that the evidence was sufficient to support the convictions, we affirm.

Factual and Procedural Background

On December 17, 2007, the Sedgwick County Fire Department obtained an administrative search warrant pursuant to the Sedgwick County Fire Code. On December 18, the officers searched private property owned by Guadalupe Rubalcaba, part of which consisted of former airplane hangars, one of which was leased to Aaron McCammon as a storage unit.

Catherine Michaelson, a Sergeant with the Maize Police Department, attended the search to “view and protect any officials on the scene while they conduct their search.” Michaelson testified that she stayed in the area where the fire department was executing the administrative search warrant at all times. She testified that because three vehicles “did not seem like they fit to the property and they just didn't seem to—they just didn't feel right,” she recorded the vehicle identification numbers (VINs) numbers of two vehicles. She did not record the VIN of the third vehicle, because it was obstructed, so she only took the license plate number of that vehicle. The VINs were visible from the outside of the vehicles and could be observed without moving anything. She then checked the VIN and license plate numbers later that day and found that two of the three vehicles were reported stolen.

The State charged McCammon with four counts of theft in violation of K.S.A. 21–3701(a)(4), (b)(3). McCammon filed a motion to suppress evidence and for dismissal, which was denied by the district court. The case proceeded to a bench trial on the stipulated facts contained in an affidavit. McCammon was found guilty as charged on all counts.

Did the District Court Err in Denying McCammon's Suppression Motion?

Before we address the merits of McCammon's challenge to the district court's ruling on his suppression motion, the State suggests that we determine whether he has standing to assert rights under the Fourth Amendment to the United States Constitution because he did not have a legitimate possessory interest in the stolen vehicles, citing State v. Wickliffe, 16 Kan.App.2d 424, Syl. ¶ 3, 826 P.2d 522 (1992).

McCammon argues that because the State did not raise the standing issue at the district court, it cannot be raised for the first time on appeal. Contrary to McCammon's argument, the State raised the standing issue to the district court; our review of the transcript of the suppression hearing reveals that the prosecutor argued that “somebody who has a stolen car [doesn't] have standing to challenge the search of that car” and that “even if the court were to determine that [the officer's actions were] a search of the car, he doesn't have standing to challenge that,” citing Wickliffe, 16 Kan.App.2d 424, 826 P.2d 522. Clearly, the State challenged standing in district court and there is no bar to such a challenge on appeal.

“[A] defendant cannot object to the seizure of evidence without proper standing to challenge the validity of the search.” State v. Gonzalez, 32 Kan.App.2d 590, 593, 85 P.3d 711 (2004). One who seeks to challenge the legality of a search as a basis for suppressing relevant evidence must claim either to have a proprietary or possessory interest in the premises searched, or to have owned or possessed the property seized. State v. Jakeway, 221 Kan. 142, 144–45, 558 P.2d 113 (1976); see State v. Sumner, 210 Kan. 802, 804, 504 P.2d 239 (1972).

Here, McCammon was the lessee of the storage unit in question. Our Supreme Court has likened a storage locker to a hotel room in the context of abandoned property, and, in its analysis found that “ ‘[g]enerally, when the search of the room occurs during the rental period, the appellant has standing to object to an unauthorized search of the premises.’ ” See State v. Grissom, 251 Kan. 851, 911, 840 P.2d 1142 (1992). Because McCammon had a possessory interest in the storage unit, the premises searched, he has standing to challenge the search. See Horton v. California, 496 U.S. 128, 137 n. 7, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (“But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.”).

Turning to the merits of his argument, McCammon argues that the scope of the administrative search warrant was exceeded because the warrant was obtained in order to inspect the building for fire code violations and did not give the officer the right to conduct a criminal search, inspect the vehicles, or record the VINs because the vehicles were not clear evidence of Sedgwick County Fire Code violations.

In reviewing a decision on the suppression of evidence, this court reviews the factual findings underlying the trial court's suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The court does not reweigh the evidence. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). When the material facts to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). The State bears the burden of proving the lawfulness of a search and seizure. State v. Groshong, 281 Kan. 1050, 1052, 135 P.3d 1186 (2006) (citing State v. Boyd, 275 Kan. 271, 64 P.3d 419 [2003] ).

On appeal, McCammon does not challenge the administrative search warrant or the participation of the police officer in the ensuing search of the property. Thus, for purposes of this appeal, the officer was lawfully on the private property where McCammon's personal items were located, and the lawful scope of the search pursuant to the warrant was to inspect the buildings or premises to determine whether “there are conditions or violations of the Fire Code that may make [those] buildings unsafe, dangerous or hazardous.”

First, we must determine whether the officer's observation of the VINs through the windshields of two vehicles was a search implicating the Fourth Amendment. We hold that it was not. The mere observation of anything that comes into view during an otherwise lawful search is not an independent search implicating the Fourth Amendment because it produces no additional invasion of privacy interests beyond those already jeopardized. See Arizona v. Hicks, 480 U.S. 321, 325, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987); Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983). As noted by the Court in Hicks, if the officer had taken any action beyond mere observation—even a trivial movement of an item by only a few inches—we would be compelled to conclude that an independent search occurred implicating the Fourth Amendment. 480 U.S. at 325, 107 S.Ct. 1149.

Next, we must determine whether the officer's recordation of the VINs was a seizure within the meaning of the Fourth Amendment. Again, we hold it was not. The recordation of the VINs did not meaningfully interfere with any possessory interest in the vehicles and therefore did not amount to a seizure implicating...