State v. Morris
| Decision Date | 11 July 2003 |
| Docket Number | No. 87,268.,87,268. |
| Citation | 276 Kan. 11,72 P.3d 570 |
| Parties | STATE OF KANSAS, Appellee, v. ROGER L. MORRIS, Appellant. |
| Court | Kansas Supreme Court |
Peter T. Maharry, assistant appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with him on the brief for appellant.
Bradley R. Burke, assistant district attorney, argued the cause, and Christine E. Kenney, district attorney, and Carla J. Stovall and Phill Kline, attorneys general, were with him on the briefs for appellee.
The opinion of the court was delivered by
Roger L. Morris appeals from his jury convictions of attempted manufacture of a controlled substance, possession of drug paraphernalia, possession of methamphetamine, and possession of amphetamine.
Morris argues the trial court erred in failing to suppress the evidence obtained when a sheriffs officer, without a reasonable suspicion of illegal conduct by Morris, activated his emergency lights and approached Morris who was sitting in his pickup which was legally parked in a public place. Morris also argues there was prosecutorial misconduct during the closing argument.
On direct appeal, the Court of Appeals affirmed Morris' convictions, holding that the trial court had properly denied Morris' motion to suppress evidence and that the prosecutor's improper comments during closing argument did not warrant reversal. Pursuant to K.S.A. 20-3018(b), this court granted Morris' petition for review. We reverse the trial court and the Court of Appeals on the suppression issue and, as a result of that determination, do not reach the prosecutorial misconduct issue.
On March 24, 1999, Douglas County sheriff's officers were investigating a possible methamphetamine lab in Eudora. Around 6 p.m., Undersheriff Massey and other officers were conducting surveillance of an apartment while waiting for a search warrant. When Kim Souza left the apartment and drove to Lawrence, Massey and other officers followed her and saw her stop and speak to a man in a green pickup. Massey recognized that man as Roger Morris. Souza and Morris spoke briefly, and then drove away. The officers attempted to follow, but were unsuccessful due to traffic.
Massey next located Morris around 8:40 p.m. when he found Morris parked in his pickup with the engine running on a rocky jetty-breaker area at the Douglas County State Lake. Massey, who was in an unmarked vehicle, called in Detective Pollock and Corporal Bunting who were driving a marked unit. Around 9:15 p.m., the officers pulled in behind Morris' pickup "and activated the red lights and illuminated the back of his pickup with . . . spotlights." At this point, Morris' engine was not running. While Bunting approached the driver's door of the pickup to obtain Morris' identification, Massey and Pollock approached the passenger side door. Both Massey and Pollock noticed a chemical odor coming from inside the truck; they had smelled a similar odor associated with methamphetamine labs. The officers also observed a Coleman camp stove sitting on top of a closed canvas bag on the passenger side floorboard.
Although Morris was initially cooperative, he became upset when he saw officers looking inside his truck. After Morris reached toward the passenger seat several times, Massey asked Bunting to have Morris step out of the vehicle.
Once Morris had been removed from the vehicle, Massey looked inside the cab of the truck with a flashlight and saw two canisters of fuel for the camp stove. Massey observed a glass coffeepot with a reddish-brown stain he believed was consistent with the red phosphorous method of methamphetamine production. On the ground near the driver's door, he also saw a baggie with a corner cut off. He explained that the corners of baggies are commonly cut off and used to package narcotics. The baggie did not appear to be weathered, and there was no other debris near the vehicle.
Based upon their observations of the chemical smell, the camp stove, other items inside the pickup, and the lack of camping equipment, the officers decided to search the pickup. After waiting for assistance in collecting evidence, officers found "a fairly complete meth lab" including such items as antifreeze, iodine, lye, acetone, matchbooks, scales, and syringes, all of which are used in the manufacture of methamphetamine. They also found several jars of liquid which were ultimately determined to be amphetamine and methamphetamine. Many of these items were found inside the canvas bag in Morris' pickup.
Morris filed a motion to suppress the evidence which was seized during the search of his pickup, alleging that he was unreasonably seized when officers removed him from his pickup and any items seized during the ensuing search should be suppressed as fruit of the poisonous tree. Morris also argued the search was unreasonable and illegal because the officers did not obtain a warrant, exigent circumstances did not exist, and probable cause did not exist. Finally, Morris argued that the search of his duffel bag was unreasonable and unlawful.
The fact that the officers had activated their emergency lights when they pulled in behind Morris' pickup was not mentioned during the testimony offered at the suppression hearing. After that hearing, the trial court asked the parties to brief the issues involved. The first mention of emergency lights was in the State's brief.
Then, at trial, Undersheriff Massey testified the officers pulled behind Morris' pickup "and activated the red lights and illuminated the back of his pickup with . . . spotlights."
The trial court denied Morris' pretrial motion to suppress, focusing on whether exigent circumstances existed to justify searching his vehicle without a warrant. The trial court found that the officers had probable cause to search and that the vehicle was readily mobile; therefore, the officers could search the vehicle without a warrant. The trial court ruled that since the search of the pickup was proper, the search of the duffel bag found inside the pickup was also proper. On direct appeal, the Court of Appeals affirmed Morris' convictions in an unpublished decision, State v. Morris, No. 87,268, filed November 8, 2002. Regarding the suppression issue, Morris made two arguments to the Court of Appeals: (1) that the police officers had illegally seized him without reasonable suspicion when they pulled up behind his parked vehicle and activated their emergency lights, and (2) that the police officers lacked probable cause to search his vehicle without a warrant. Morris, Slip op. at 4. The Court of Appeals rejected both arguments. However, in his petition for review, Morris challenges only the first portion of the ruling.
In resolving the issue of when the seizure occurred, the Court of Appeals noted the cases from other jurisdictions cited by Morris which supported his position that a voluntary encounter becomes a seizure when officers activate their emergency lights. However, the court cited State v. Weaver, 259 Kan. 844, 849, 915 P.2d 746 (1996), for the premise that, in Kansas, the activation of emergency lights is not a show of authority sufficient to constitute a seizure under the Fourth Amendment to the United States Constitution. Applying Weaver to the facts of the case, the Court of Appeals held that Morris was not seized until he complied with the officer's request to produce identification. By the time officers requested Morris' identification, they had already smelled a chemical odor coming from inside the truck and had seen the camp stove in plain view on the passenger floorboard, and these facts established a reasonable suspicion of criminal activity sufficient to further detain Morris. Morris, Slip op. at 11-13.
On a motion to suppress evidence, this court reviews the facts underlying the trial court's suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. In this case there is no dispute as to the facts; therefore, the ultimate determination of suppression is a legal question requiring this court's independent constitutional appraisal of the effects of those facts. State v. Gray, 270 Kan. 793, 796, 18 P.3d 962 (2001).
Before the trial court, Morris argued that his detention was illegal because the officers did not have reasonable suspicion to remove him from the vehicle at the time they noticed the chemical smell and the camp stove in his pickup. He did not argue that officers had detained him at the moment they pulled up behind him and activated their emergency lights.
After citing the general rule that issues not raised below are precluded from appellate review, the Court of Appeals noted that exceptions are made where the question involved is a strictly legal one that will be determinative of the case or where consideration of the issue is necessary to serve the interests of justice or prevent the denial of fundamental rights. The Court of Appeals found that the interests of justice would best be served by considering Morris' arguments. Morris, Slip op. at 6-7.
In addition, we note that Morris failed to lodge a contemporaneous objection at trial when the evidence regarding the emergency lights was admitted. Consequently, this court would be justified in ruling that Morris failed to preserve the issue for appeal. However, the Court of Appeals considered the question of when the seizure occurred and resolution of that issue framed the Court of Appeals' decision. Our review is, therefore, necessitated, although we recognize the issues on appeal were not presented for the trial court's consideration.
We also note several additional factors which weigh in favor of considering Morris' new arguments. First, the fact that officers activated their emergency lights when they pulled in behind Morris was mentioned during the trial, but not during the...
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