State v. Press

• Court: Kansas Court of Appeals
• Writing for the Court: SWINEHART; REES
• Citation: State v. Press, 685 P.2d 887, 9 Kan.App.2d 589 (Kan. App. 1984)
• Decision Date: 12 July 1984
• Docket Number: No. 55621,55621
• Parties: STATE of Kansas, Appellant, v. Randall J. PRESS, Appellee.

Page 887

685 P.2d 887

9 Kan.App.2d 589

STATE of Kansas, Appellant, v. Randall J. PRESS, Appellee.

No. 55621.

Court of Appeals of Kansas.

July 12, 1984.

Review Denied Oct. 2, 1984.

Syllabus by the Court

1. Determining whether a warrantless search is incident to an arrest involves two considerations: whether the arrest is valid; and whether the search is properly limited in scope to that which is permissible on arrest.

2. Probable cause for arrest exists if facts and circumstances within an arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed.

3. When a law enforcement officer has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

4. When a law enforcement officer has made a lawful stop of a vehicle and has probable cause to believe that contraband is in the vehicle, the officer may search every area of the vehicle and its contents which might reasonably contain the contraband without the necessity of first obtaining a warrant.

5. Under the circumstances of this case, a warrantless search of the passenger compartment and trunk of defendant's vehicle, while defendant was handcuffed and seated in a patrol car, was legal.

Willis K. Musick, Asst. County Atty., and Robert T. Stephan, Atty. Gen., for appellant.

Caleb Boone, of Law Office of Thomas C. Boone, Hays, for appellee.

Before PARKS, P.J., and REES and SWINEHART, JJ.

SWINEHART, Judge:

This is an interlocutory appeal by the State from the trial court's pretrial suppression of evidence obtained in an illegal search of defendant's vehicle after his arrest for violation of K.S.A. 1983 Supp. 8-1567--DUI misdemeanor.

Defendant Randall J. Press was arrested by highway patrol tropper Daniel Alltop at the intersection of Cody and Vine Streets in Hays, Kansas, at about 10:50 p.m. on March 8, 1983. Trooper Alltop observed the vehicle defendant was driving on Vine Street, a four-lane road with a center turn lane, weaving into the center turn lane several times and the outside lane once. No turn signals were given prior to these lane changes. Trooper Alltop also observed defendant's vehicle stop at the intersection of 22nd and Vine Streets for a stoplight which was green for defendant's lane of travel.

Trooper Alltop stopped defendant's vehicle. Defendant was asked to and did perform field sobriety tests, including the heel-to-toe test, the finger-to-nose test, and a test consisting of leaning back with the head tilted back to test balance. These tests revealed that defendant was unsure, swaying, and almost lost his balance while performing the heel-to-toe walking test. Defendant touched the bridge of his nose rather than the tip as requested by Trooper Alltop on the hand-to-nose test. Further, when defendant was asked to lean back and tilt his head back with his eyes closed, there was a sway to his balance. Trooper Alltop also observed a mild odor of alcoholic beverage on defendant's breath.

Defendant was placed under arrest for driving while under the influence of alcohol, read his Miranda rights, taken into custody, handcuffed, and placed in the front seat of the patrol car with the seat belt fastened.

Trooper Alltop then asked defendant whether he wanted to let an officer drive his car to the Ellis County Law Enforcement Center in Hays, or leave the car on Cody Street. The defendant told Trooper Alltop he wanted his car to be locked and left at the site. The dome light of defendant's car was on, and defendant, sitting in the patrol car, had a plain view of the trooper's actions through the rear window of defendant's car. Trooper Alltop went to defendant's car, sat in the driver's seat, and removed the keys from the ignition. This was the only set of keys to defendant's car known to Trooper Alltop.

Trooper Alltop conducted a search of defendant's vehicle, starting with the passenger compartment. Two Hays policemen had arrived at the scene and were present when the search took place. Trooper Alltop, while searching for a bottle, found a white tray with a green leafy substance under the driver's seat, and two hemostats underneath the driver's side floor mat. He next found two clear plastic bags containing a green leafy substance in the space between the seat and the driver's side door. Trooper Alltop moved to the back seat and found a green wine bottle that was "bone dry." He then found an amber colored glass bottle in the back seat area containing seeds and a green stem which he believed to be marijuana.

Trooper Alltop next searched the trunk where he found two more bags and placed them in evidence containers. He then searched the glove compartment and found a white pipe with a screen containing what appeared to be marijuana resin, two plastic bags containing green leafy material, and a brown opaque wooden box containing green leafy material. Trooper Alltop told defendant he was under arrest for possession of marijuana and took him to the Ellis County Law Enforcement Center. Defendant was delivered to the custody of the Ellis County sheriff, whereupon he posted bond and was released.

Defendant was charged with possession of marijuana, possession of paraphernalia, and driving while under the influence of alcohol. Defendant's pretrial motion to suppress the evidence obtained in the search of his vehicle was sustained by Judge Steven P. Flood, who found the following facts: (1) Trooper Alltop agreed to lock defendant's car just before driving to the Ellis County Law Enforcement Center at defendant's request. (2) Trooper Alltop conducted a general search of the entire automobile. (3) Trooper Alltop saw nothing in plain view. (4) There was no possibility the defendant could have destroyed evidence once handcuffed and seatbelted in the patrol car. (5) The defendant left his lane of traffic on four occasions, stopped at a green light, had a slight odor of alcohol on his breath, and performed the field sobriety tests less than perfectly. Judge Flood made the following conclusions of law: (1) The search was not incident to the arrest. (2) The only justification for the search was the search incident to arrest doctrine. (3) Trooper Alltop had no probable cause to suspect defendant's automobile contained any evidence, any contraband, or any item that offended the law. (4) Trooper Alltop had probable cause to arrest defendant for driving while under the influence of alcohol.

The State has timely appealed from the court's pretrial suppression order.

The State's only argument on appeal is that the court erred in finding that the warrantless search of defendant's vehicle was not incident to a lawful arrest. Both parties agree with the trial court's finding that under the facts of this case the only possible justification for the search is the search incident to arrest doctrine. This doctrine is embodied in K.S.A. 22-2501, which states:

"When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of

"(a ) Protecting the officer from attack;

"(b ) Preventing the person from escaping; or

"(c ) Discovering the fruits, instrumentalities, or evidence of the crime."

Determining whether the search was incident to an arrest so that a warrant is not required involves two considerations: whether the arrest is valid, and whether the search is properly limited in scope to that which is permissible on arrest. 68 Am.Jur.2d, Searches and Seizures § 37, p. 692; New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 2862, 69 L.Ed.2d 768 (1981); Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968).

Defendant was arrested for DUI, a misdemeanor, in violation of K.S.A. 1983 Supp. 8-1567. K.S.A. 22-2401 provides that a law enforcement officer may arrest a person when:

"(c ) He has probable cause to believe that the person is committing or has committed

....

"(2) A misdemeanor, and the law enforcement officer has probable cause to believe that:

"(i ) Such person will not be apprehended or evidence of the crime will be irretrievably lost unless such person is immediately arrested; or

"(ii ) Such person may cause injury to himself or others or damage to property unless immediately arrested; or

"(d ) Any crime has been or is being committed by such person in his view."

This statute embodies the general rule that the validity of a warrantless arrest depends upon whether, at the moment the arrest was made, the officer had probable cause to make it. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Morgan, 231 Kan. 472, 475, 646 P.2d 1064 (1982).

"Probable cause for arrest exists if facts and circumstances within an arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or is being committed." State v. Costello, 231 Kan. 337, Syl. p 1, 644 P.2d 447 (1982).

In the present case, ample evidence supports a finding of probable cause for defendant's arrest for DUI. Trooper Alltop had personally observed defendant's vehicle weave from lane to lane without signalling and stop at a green light, had smelled a slight odor of alcohol on defendant's breath, and had witnessed defendant's "imperfect" performance of the field sobriety tests. These facts within Trooper Alltop's knowledge are sufficient in themselves to lead a person of reasonable caution to believe that the offense of DUI was being committed. See State v. Morgan, 231 Kan. at 475, 646 P.2d 1064. The trial court did not err in finding defendant's arrest lawful.

Determining whether the search of defendant's vehicle, conducted by Trooper Alltop, was...