State v. Reason

• Decision Date: 12 December 1997
• Docket Number: No. 77804,77804
• Citation: 951 P.2d 538,263 Kan. 405
• Parties: STATE of Kansas, Appellee/Cross-Appellant, v. Peter REASON, Appellant/Cross-Appellee.
• Court: Kansas Supreme Court

Page 538

951 P.2d 538

263 Kan. 405

STATE of Kansas, Appellee/Cross-Appellant, v. Peter REASON, Appellant/Cross-Appellee.

No. 77804.

Supreme Court of Kansas.

Dec. 12, 1997.

Syllabus by the Court

1. The record in this Fourth Amendment search and seizure case is examined, and it is held the district court did not err in: (1) denying defendant's motion to suppress illegal drugs seized because of the officers' search of both the defendant's person and car and (2) convicting defendant at a bench trial on possession of cocaine, possession of cocaine without a tax stamp affixed, possession of marijuana with intent to sell, and possession of marijuana without a tax stamp affixed.

2. A fundamental rule of statutory construction is that a statute operates prospectively unless its language clearly shows that the legislature intended the statute to operate retroactively. In applying K.S.A.1996 Supp. 21-4705, the critical date is the date of the crime, not the sentencing date, absent express legislative intent to the contrary.

Charles R. Reimer, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney Gail A. Jensen, Wichita, argued the cause and was on the briefs for appellee.

General, were with him on the briefs for appellant.

SIX, Justice:

The primary focus of this case is on Fourth Amendment issues arising from the search of defendant Peter Reason and of his car. We also review the prospective application of certain 1996 amendments to the Sentencing Guidelines Act.

Reason appeals the denial of his motion to suppress evidence that resulted in his felony convictions for possession of cocaine, K.S.A.1994 Supp. 65-4160(a), a drug severity level 4 felony; possession of cocaine without a tax stamp affixed, K.S.A.1994 Supp. 79-5208, a nondrug severity level 10 felony; possession of marijuana with intent to sell, K.S.A.1994 Supp. 65-4163(a), a drug severity level 3 felony; and possession of marijuana without a tax stamp affixed, K.S.A.1994 Supp. 79-5208, a severity level 10 felony. Reason was tried before the district judge, the parties having stipulated to the testimonial evidence presented at the preliminary hearing and motion to suppress evidence hearing.

Although Reason's crimes were committed on June 14, 1995, he was sentenced under Senate Bill 585, which went into effect on July 1, 1996. L.1996, ch. 258, § 11; see K.S.A.1996 Supp. 21-4705. The State cross-appeals upon a question reserved, contending that the district court should not have applied the 1996 legislative changes to the Sentencing Guidelines Act retroactively.

Our jurisdiction is under K.S.A. 22-3602(a) (appeal by defendant from an adverse judgment) and K.S.A. 22-3602(b)(3) (appeal on a question reserved by the prosecution).

We affirm the district court's denial of defendant's motion to suppress evidence; we sustain the State's cross-appeal on the sentencing issue.

FACTS

Officers Johnson and Falco were patrolling a park in Wichita when they saw a BMW with a 30-day New Mexico tag parked in the parking lot, with both doors open. Johnson became suspicious because no one appeared near the BMW. He thought the BMW might either have been abandoned or was being stripped. Johnson parked the patrol car behind the BMW. There was room for the BMW to leave by pulling forward and circling in the parking lot to the exit road. Both officers approached on foot, Johnson on the driver side and Falco on the passenger side. They observed two men sleeping, Reason in the driver's seat and Alfred Moya in the front passenger's seat. It was a hot day. Reason and Moya were sweating heavily. Johnson awoke Reason to find out why the car was there, if Reason was okay, or if he was intoxicated or unconscious. Reason was coming out of a sound sleep and requested a minute or so to think. Johnson waited a few minutes and then asked Reason for identification and if he was the owner. Reason got out of the BMW and identified himself. He said his wallet had been stolen, that he had no written identification with him, and that he owned the BMW.

Officer Falco asked Moya if Moya would mind stepping outside so that Falco could talk to him privately. Moya complied. Falco walked with Moya back to the rear of the BMW. Falco asked Moya for identification. Moya gave him a New Mexico driver's license. Falco gave the license to Johnson so that Johnson could run a wants and warrants check. Falco asked Moya why he and Reason were in the park. Moya said he was new to the area and Reason was showing him around.

Johnson ran a check on the vehicle identification number (VIN). The check revealed that the BMW was registered to Reason, with a Kansas tag. No outstanding warrants were shown on Reason or Moya.

Johnson asked Reason why the BMW had a 30-day New Mexico tag and a registered Kansas tag. Reason replied that the Kansas tag had been stolen and he had secured another tag in New Mexico. Reason advised that he was living in New Mexico. Johnson was satisfied with that answer. He told Reason that he was free to go, but shortly after that, in the same conversation, asked if Reason minded if Johnson searched the BMW.

                Moya remained outside with Falco.  Johnson had Moya's driver's license.  According to Johnson, in response to the BMW search inquiry, Reason said, "Sure," and offered to open the trunk.  Reason also said, "Good luck."   The consent was given at approximately 5:10 p.m.  The officers had parked behind the BMW around 4:50 p.m
                

Johnson found what he believed was a crack pipe in an ashtray in the console area. He informed Falco, took custody of Reason, and asked Falco to handcuff Moya. Johnson continued the search. He located a large baggie of marijuana under the back seat. The search of Reason revealed a cigarette box containing white powder, which tested as cocaine. Falco found two more bags of marijuana in the trunk. Moya did not receive his driver's license back from the police until sometime after his arrest.

After the preliminary hearing, Reason filed a motion to suppress the evidence discovered during the search. Reason and Officers Johnson and Falco testified. When asked why he and Moya were asleep in the car, Reason explained that he had just driven up from Albuquerque about 4 hours before. When asked why he slept in the car when it was so hot out, Reason said he was trying to get a suntan. Reason said that Johnson ordered him to exit the BMW when the officer first approached. Reason gave Johnson his Kansas driver's license number and his address. Johnson initially testified that Reason remained in the BMW during the questioning and at the time he was told he was free to go. Reason did not get out of the BMW until he consented to the search. During cross-examination, Johnson agreed with his preliminary hearing testimony that Reason got out of the BMW when Johnson approached and began to ask questions. However, Johnson said that he never ordered Reason to exit the BMW. Reason denied he consented to the search and that he was ever asked for consent. Reason claimed that Johnson searched the BMW three times, without consent, and found nothing until the third search. Reason denied that Johnson ever told him he was free to leave. According to Reason, Johnson told him he could go back to the BMW after Johnson received the Kansas driver's license number and address. Reason claimed that once he reentered the BMW, Johnson ordered him out to search again. Reason denied saying "good luck" before the search.

The district court denied the motion to suppress. The district judge reasoned that "the officers had every right to be there, ask the driver and the passengers some questions."

"... I think it would have been irresponsible for them to not have approached the car and not to have asked some questions given the fact that there was an out-of-state tag in the window, a number of different things. There was nothing unreasonable about that."

The district judge, believing the officers' testimony, decided that a valid consent to search had been given. Reason renewed the motion to suppress at trial. The motion was again denied.

Reason was sentenced on August 30, 1996. The crimes were committed on June 14, 1995. At the sentencing hearing, the State requested consecutive sentencing, for a controlling term of 35 months, with presumptive imprisonment under the sentencing guidelines in effect before the 1996 amendments. Reason's counsel argued that K.S.A.1996 Supp. 21-4705 should apply, which provided for optional probation. The district judge agreed and sentenced Reason under the 1996 amendments to a controlling term of 23 months, with probation for 36 months.

DISCUSSION

The Motion to Suppress

When we review a decision on the suppression of evidence, we normally give great deference to the factual findings of the district court. State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995). We said in State v. Hopper, 260 Kan. 66, 68-69, 917 P.2d 872 (1996): "The initial question remains whether the district court's findings are supported by substantial evidence. If so, the appellate court should not reweigh the evidence. However, the ultimate determination of the suppression of evidence is a legal question requiring independent appellate determination. [Citation omitted.]"

In State v. Ninci, 262 Kan. 21, 32, 936 P.2d 1364 (1997), we listed certain factors that indicate whether consent after a primary illegality is voluntary, purging the primary taint, or whether the consent is coerced exploitation of the primary illegality:

"Factors which indicate that the exploitation of the primary illegality was used to coerce a consent are (1) if the officers used deception to gain consent, and (2) if the defendant had no knowledge that he could refuse to consent. Factors which indicate that the consent was voluntary and purged the primary taint are (1) if the officers' behavior was not threatening or coercive, (2) if the defendant indicated...