State v. Ramirez

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

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.

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 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 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 recognized several exceptions to the Fourth Amendment search warrant requirement: consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances, of which hot pursuit is one example; the emergency doctrine; inventory searches; plain view; and administrative searches of closely regulated businesses. State v. Mendez, 275 Kan. 412, 421, 66 P.3d 811 (2003).

In this case, the trial court found that the exception for a search incident to a lawful arrest applied. The State does not contest the trial court's finding that Deputy Evans arrested Ramirez when he grabbed her wrist. Therefore, we do not have before us the issue of whether this constituted a seizure of Ramirez. Rather, the issue is whether Ramirez' arrest was lawful.

It is recognized that a warrantless arrest of an individual in a public place for a felony is consistent with the Fourth Amendment if the arrest is supported by probable cause. United States v. Watson, 423 U.S. 411, 423-24, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976). As the United States Supreme Court has stated: "The long-prevailing standard of probable cause protects `citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime,' while giving `fair leeway for enforcing the law in the community's protection.'" Maryland v. Pringle, 540 U.S. 366, 370, 157 L. Ed. 2d 769, 124 S. Ct. 795 (2003) (quoting Brinegar v. United States, 338 U.S. 160, 176, 93 L. Ed. 1879, 69 S. Ct. 1302 [1949]).

Kansas statutes authorize a warrantless arrest when a law enforcement officer has probable cause to believe that the person is committing or has committed a felony. K.S.A. 2003 Supp. 22-2401. This court has defined probable cause as follows:

"Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. Probable cause exists where the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

"When determining whether probable cause exists, an appellate court considers the totality of the circumstances, including all of the information in the officer's possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt." State v. Abbott, 277 Kan. 161, Syl. ¶¶ 2-3, 83 P.3d 794 (2004).

Applying these standards, the Court of Appeals concluded that the following facts were sufficient to establish probable cause:

"In this case, in the context of having known Ramirez for at least 8 years, the facts relied on by Deputy Evans were: (1) Ramirez' unusual behavior in avoiding eye contact and moving away from a uniformed officer she knew; (2) her apparent state of being under the influence; (3) her fidgety and nervous behavior; (4) her presence in a bar known for drug activity; (5) her prior known use of cocaine; and (6) her clenched fist from which a torn edge of plastic protruded."

In seeking review, Ramirez argues, as concluded by the dissenter in the Court of Appeals, that while these facts may have raised a suspicion they were not sufficient for probable cause. In making this argument, she focuses upon each specific factor. For example, she argues that the fact she was at a bar known for drug activity did not justify a warrantless arrest and search because "mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. [Citation omitted.]" Ybarra v. Illinois, 444 U.S. 85, 91, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1...