State v. McMillin
| Decision Date | 07 November 1970 |
| Docket Number | No. 45596,45596 |
| Citation | 206 Kan. 3,476 P.2d 612 |
| Parties | STATE of Kansas, Appellee, v. Ray Lee Mc,MILLIN, Appellant. |
| Court | Kansas Supreme Court |
1. An affidavit to obtain a search warrant, conclusory and completely perfunctory in nature, that furnishes a magistrate no factual basis upon which to exercise an independent judgment as to whether probable cause exists for the issuance of a search warrant, is legally insufficient to support such issuance.
2. A vehicular search and seizure may not be upheld as incidental to arrest where the accused was arrested for vagrancy at the time he was an occupant of the vehicle, and when subsequently arrested for burglary, was in police custody away from the vehicle, which was not searched until several hours after the burglary arrest.
3. The authority to search an automobile is not necessarily conditioned upon obtaining a search warrant or upon the right to arrest. It may be dependent on reasonable cause which an officer has for believing that contents of the vehicle offend against the law.
4. A search implies prying into hidden places for that which is concealed and it is not a search to observe that which is in open view. Looking into a parked car through the windows does not constitute a search, even though it is nighttime and the items can be seen only with the aid of a flashlight.
5. Objects in plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.
John M. Simpson, Salina, argued the cause and was on the brief for appellant.
Bill Crews, County Atty., argued the cause, and Kent Frizzell, Atty. Gen., was with him on the brief for appellee.
HARMAN, Commissioner.
Appellant Ray Lee McMillin was tried for the offenses of burglary in the second degree and larceny in connection with the burglary. A jury convicted him of the larceny but was unable to reach a verdict as to the burglary. A previous conviction being shown, he was sentenced for the larceny to confinement for a term of not more than ten years. He now appeals.
Property occupied by the Eagles Lodge in Salina, Kansas, was the subject of the burglary charge, in connection with which the sum of $2,771.43 was allegedly stolen.
The sole question raised upon appeal is the legality of a vehicular search and seizure.
On March 18, 1968, at about 12:30 a. m., a merchant policeman checked the doors of the lodge building, at which time the building had not been broken into; a check at 2:30 a. m. revealed the rear door was locked and in good condition. At 2:55 a. m. another check by a merchant policeman revealed the building had been broken into. The Salina police desk sergeant was immediately notified and a report of the incident was dispatched over the police radio. Meanwhile a cab driver reported he had seen three men running in the alley behind the Eagles building.
At about 3:13 a. m. Saline county Deputy Sheriff Siewert, who had been notified of the burglary, observed a Chevrolet automobile bearing a Wyandotte county, Kansas, license plate about five or six blocks from the scene of the burglary. The vehicle contained four men and was traveling forty miles per hour in a thirty mile per hour zone. Officer Siewert stopped the car and arrested the driver, Bernard Donald Kanan, for speeding. The officer then escorted the vehicle to the police station, arriving about 3:30 a .m. After arrival the other occupants of the vehicle, William Neal Dodson, Bruce LaVern Brooks and apellant McMillin, were arrested for vagrancy. The vehicle was parked in front of the police station and was locked and guarded by police. Detective Wilson of the Salina police department inspected the burglarized premises about 3:20 a. m., observing that fire clay from a broken safe was spread upon the floor. He then went to the police station where he noticed that the four men who had been in the automobile had white substance on their shoes and pant cuffs similar to the fire clay. Accompanied by Undersheriff Hindman, who was also secretary of the Eagles Lodge, Wilson shone a flashlight through the windows of the locked car which had been driven by Kanan. They observed a cardboard carton sitting in the front of the vehicle. Hindman identified the carton as one belonging to the Eagles Lodge. Appellant and the other three were thereafter booked for burglary. These bookings occurred between 4:15 and 5:15 a. m.
At about 8:00 a. m. on the same morning Officer Wilson filed a written affidavit with a magistrate and also gave sworn oral testimony before the magistrate. As a result Wilson obtained a search warrant for the vehicle. At about 8:45 a. m. the automobile was searched at the police garage. Seven cigar boxes containing money and checks identified as coming from the lodge were found in the cardboard carton. Underneath the car seats metal bars and screwdrivers were found. Marks on a broken box in the lodge were shown to have been made by one of the pry bars.
At the trial the incriminating items were received in evidence over appellant's objection that they were obtained in an unlawful and unconstitutional search and seizure, which complaint is now reasserted.
The command of our federal and state constitutions is the same: The right of the people to be secure in their person and property against unreasonable searches and seizure shall not be violated, and no warrant shall issue but on probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or property to be seized (U. S. Constitution, 4th Amendment; Kansas Bill of Rights § 15).
At the time in question our statute (K.S.A. 62-1830) implementing the constitutional mandates provided:
* * *'
The affidavit filed by Officer Wilson to obtain the search warrant recited merely that certain items connected with burglaries or other crimes committed in this state or other states were located in an automobile (describing it) located in front of the Salina police department. Appellant contends, and we must agree, such an affidavit is inadequate to support the issuance of a search warrant. It has long been settled law a mere statement by an officer that he believes or has good grounds to believe contraband or other items subject to seizure are located in a specific vehicle is not sufficient to support the issuance of a search warrant (see, for sxample, Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927); Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).
In State v. Hart, 200 Kan. 153, 434 P.2d 999, this court stated:
'* * * before a search warrant may validly be issued, there must have been placed before the issuing magistrate sufficient facts to enable him to make an intelligent and independent determination that probable cause exists; * * * bald...
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...contraband items are located in a certain place is not sufficient to support the issuance of a search warrant. State v. McMillin, 206 Kan. 3, 5-6, 476 P.2d 612 (1970). In State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967), Justice Fontron, speaking for a unanimous court, " . . . (B)efore a se......
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