State v. Ramirez, No. 89,446.

• Court: United States State Supreme Court of Kansas
• Writing for the Court: LUCKERT, J.
• Citation: 278 Kan. 402,100 P.3d 94
• Parties: STATE OF KANSAS, Appellee, v. MONICE NENA RAMIREZ, Appellant.
• Decision Date: 12 November 2004
• Docket Number: No. 89,446.

278 Kan. 402
100 P.3d 94

STATE OF KANSAS, Appellee,
v.
MONICE NENA RAMIREZ, Appellant

No. 89,446.

Supreme Court of Kansas.

Opinion filed November 12, 2004.

278 Kan. 403

Nathan B. Webb, assistant appellate defender, argued the cause and was on the briefs for appellant

Tamara S. Hicks, assistant county attorney, argued the cause, and John P. Wheeler, Jr., county attorney, and Phill Kline, attorney general, were with her on the briefs for appellee.

The opinion was delivered by

LUCKERT, J.:

Monice Nena Ramirez was arrested in a bar known for drug activity after a law enforcement officer, who had known her for 8 years and knew her to have used drugs in the past, observed that she was holding a piece of a torn plastic baggie in her hand, was under the influence, and was uncharacteristically avoiding eye contact with the officer and acting nervous. A resulting search revealed cocaine and marijuana in her possession. She was charged, and, after her motion to suppress was denied, she was convicted and sentenced for possession of cocaine and possession of marijuana. Ramirez timely appealed. A majority of the Court of Appeals affirmed, ruling that under the totality of the circumstances, the officer had probable cause to arrest Ramirez and that the warrantless search could be upheld as a search incident to arrest. One member of the three judge panel dissented, concluding that the officer's observations justified only an investigatory stop and frisk but not an arrest and search. This court granted Ramirez' petition for review.

The Court of Appeals set out the facts accurately and concisely as follows:

"During the pretrial hearing, Deputy Randy Evans testified that he had been a deputy with the Finney County Sheriff's Office for 13 years and had training and experience in detecting and identifying controlled substances, including serving in the past on the Finney County DEA task force. On March 11, 2001, Evans was on patrol duty working the midnight shift. Shortly after midnight, he stopped at the El Maguey Club in Finney County for a routine bar check. The El Maguey

278 Kan. 404

Club was a popular place for drug activity. During bar checks, a deputy would meet with the public and watch for criminal activity.

"Deputy Evans and another sheriff's deputy entered the El Maguey Club through the front door. Ramirez was in the open area in front of the club standing with another woman. Deputy Evans and Ramirez made eye contact as the deputies entered. Ramirez then avoided further eye contact with Deputy Evans. She appeared to be nervous and walked away from him. Deputy Evans had known Ramirez for at least 8 years, had seen her intoxicated and high on drugs, and knew she had used crack and powder cocaine. Deputy Evans considered Ramirez' actions unusual. Before he approached Ramirez, he noticed her eyes seemed to be glassy, watery, and wide open, which led him to believe Ramirez was under the influence of a narcotic.

"Deputy Evans followed Ramirez toward the north end of the club. He noticed she was fidgety and nervous and her left hand was clenched. Deputy Evans saw a portion of a clear plastic bag with a torn edge protruding from Ramirez' clenched fist. Knowing that cocaine was frequently packaged in plastic baggies, Deputy Evans believed Ramirez was concealing illegal drugs in her fist. He asked Ramirez what she had in her hand, and after several inquiries, Ramirez failed to respond. He then took hold of Ramirez' left wrist and asked her to open her hand, and she complied. At that time, Deputy Evans saw two separate portions of clear plastic bags containing a white powdery substance that looked like powder cocaine. He seized the baggies, placed Ramirez in handcuffs, and took her outside the bar."

Based upon these facts, the trial court denied Ramirez' motion to suppress, ruling that the officer had arrested the defendant at the time he took hold of her wrist and that there was probable cause to believe she had committed or was committing a felony. Thus, the arrest and subsequent search incident to arrest were lawful.

Where the facts material to a decision on a motion to suppress are not in dispute, and they are not in this case, the question of whether to suppress is a question of law over which this court has unlimited review. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003). Ramirez argues that the search of her which revealed the cocaine was unconstitutional and, therefore, the fruits of the search as well as the subsequent discovery of marijuana after she was placed in custody should be suppressed.

The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures, and a warrantless search is per se

278 Kan. 405

unreasonable unless it falls within a recognized exception. State v. Canaan, 265 Kan. 835, 840, 964 P.2d 681 (1998) (citing Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 [1967]). See State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993) ("[T]he wording and scope of the two sections are identical for all practical purposes. If conduct is prohibited by one it is prohibited by the other."). Kansas has previously...