State v. Robinson

• Decision Date: 17 May 1969
• Docket Number: No. 45296,45296
• Citation: 203 Kan. 304,454 P.2d 527
• Parties: STATE of Kansas, Appellee, v. Emmitt ROBINSON, Appellant.
• Court: Kansas Supreme Court

Page 527

454 P.2d 527

203 Kan. 304

STATE of Kansas, Appellee, v. Emmitt ROBINSON, Appellant.

No. 45296.

Supreme Court of Kansas.

May 17, 1969.

Rehearing Denied June 11, 1969.

Syllabus by the Court

1. The ability of an automobile to be moved to an unknown location or beyond the jurisdictional reach of the officer makes resort to a search warrant impractical in some cases. In such cases if an officer has reasonable cause to believe the conveyance contains contraband or items which offend against the law the officer may conduct a reasonable warrantless search of the vehicle.

2. The authority to search an automobile is not necessarily conditioned upon obtaining a search warrant or upon the right to arrest. It may be dependent on reasonable cause which an officer has for belief that contents of the vehicle offend against the law.

3. Under K.S.A. 60-436 a witness has a privilege to refuse to disclose the identity of an informer unless the trial judge in the exercise of judicial discretion finds (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

4. When the issue is probable cause for the search of an automobile, and not guilt or innocence of the defendant, no state or federal constitutional right of confrontation is affected by refusal to disclose the identity of an informer.

5. The admissibility in evidence of a physical object is to be determined by the trial judge on the basis of its relevance and connection with the accused and with the crime. In order to justify its admission its identity must be shown to the satisfaction of the trial judge.

6. Although admissibility in the first instance rests in the judicial discretion of the trial judge, if the circumstances surrounding possession of an article are sufficient to infer relevance to the offense charged an issue of fact is presented which should be left for the jury to determine.

7. The record on appeal from a conviction for possession of marijuana as proscribed in K.S.A. 65-2502 is examined, and it is held: (1) Probable cause existed to support a warrantless search of an automobile which contained marijuana; (2) The trial court did not err in restricting the cross-examination of a witness and in refusing to require disclosure of the identity of an informer; (3) Proper foundation was laid in the evidence to show relevance of the physical evidence admitted during the trial and (4) No prejudicial error is found in the record.

Jerry K. Levy, Wichita, argued the cause and E. L. Malone and Edgar Wm. Dwire, Wichita, were with him on the brief, for appellant.

Russell Grant, Deputy County Atty., argued the cause and Kent Frizzell, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief, for appellee.

FROMME, Justice.

Emmitt Robinson was convicted and sentenced for possession of marijuana as proscribed in K.S.A. 65-2502. He was sentenced on two separate counts to not more than seven years, the sentences to run concurrently. Defendant Robinson appeals from the judgment of conviction.

Three primary questions are raised. First, was there probable cause to support a warrantless search of his automobile which contained three brown paper sacks of marijuana? Second, did the court err in restricting the cross-examination of a witness and in refusing to require disclosure of the identity of an informer? Third, was a proper foundation laid to show relevance of physical evidence admitted during the trial?

The two counts of possession arose out of separate incidents on August 13 and August 27, respectively. The first two questions relate solely to count one. The third question relates to items of physical evidence, marijuana, introduced in support of both counts.

We will summarize the facts and discuss the questions pertaining to count one first.

On August 13, 1967, at 9:55 p. m. the defendant was driving his green 1955 Chevrolet station wagon south on Wabash Street, in Wichita, Kansas. Officer Cochran stopped the vehicle when he noticed it was without proper lights. Defendant got out of his station wagon and left the door open on the driver's side. He appeared unsteady on his feet as he approached the officer.

Detective Myers of the Wichita vice squal was patrolling this neighborhood. He drove up shortly after defendant got out of the station wagon. Officer Cochran talked to the defendant. Detective Myers walked past them and stopped beside the station wagon. Through the open door he observed three brown paper sacks on the floor behind the front seat. He asked the defendant what was in the sacks. The defendant answered, 'How did that get in there?' The detective asked, 'What is it?' The defendant replied, 'Who put that in my car?' Detective Myers, while standing beside the vehicle, reached into the station wagon and opened one paper sack. He then saw it contained marijuana. He arrested the defendant and removed the three sacks from the vehicle.

The defendant was charged with possession of marijuana. Prior to trial defendant filed a motion to suppress the evidence. He argued the three sacks of marijuana were obtained in an illegal search of his vehicle without a search warrant. He points out no arrest was made for possession of marijuana until after the search of his car disclosed the contraband.

Before trial the state introduced testimony to show probable cause and the reasonableness of the search. Detective Myers testified he was assigned to the vice squad and was patrolling this particular neighborhood because of prior information received. An informer had advised him that a green 1954 station wagon containing marijuana would be in that vicinity. The exact description of the vehicle was not available. He saw Officer Cochran stop a green 1955 Chevrolet station wagon and he proceeded to its location. When he approached the vehicle the informer was in that vicinity and made gestures indicating this was the station wagon for which he was looking. The detective testified the informer was reliable and had previously given him information pertaining to law violations. The previous information received had proven to be accurate. Defendant's counsel was given the opportunity to cross-examine the officer on reliability of the informer as to previous information given pertaining to law violations but he was not permitted to determine the informer's name or identity.

This testimony was taken in the absence of the jury and was for the purpose of determining the admissibility of this physical evidence. (See K.S.A. 60-408.)

It should be noted the vehicle containing marijuana was stopped on a public street while in transit. The search consisted of reaching through an open door of the vehicle and inspecting the contents of a brown paper sack. Marijuana was disclosed thereby and the seizure was made contemporaneously with the announced arrest of the defendant. The three sacks containing marijuana were removed from the vehicle while it remained in the public street and fully mobile.

In response to the first question raised by the defendant the state cites State v. Hunt, 198 Kan. 222, 424 P.2d 571, to support the legality of the search.

However, the defendant correctly points out in that case the fruits of a known crime (cigarettes) were seen by the officer through a car window. Since the eye can commit no trespass no illegal search occurred. The known location of the fruits of crime furnished probable cause to support the arrest without a warrant. The search was then made by the officer incidental to the lawful arrest.

In the present case the content of the brown paper sacks was not apparent. A trespass, slight though it may have been, was committed when the detective reached through an open door, twisted open the sack and viewed the marijuana in the station wagon. If this search was unreasonable, as not being based upon probable cause, it would follow that the contraband removed from the car could not be introduced at the trial to support the charge against the defendant. In such event the charge contained in count one could hardly be sustained because of lack of evidence.

The ability of an automobile to be moved to an unknown location or beyond the jurisdictional reach of the officer makes resort to a search warrant impractical in some cases. Courts have long permitted a seizure to be made without a search warrant when known contraband is viewed by the officer through a car window. (See State v. Hunt, supra; State v. Brown, 198 Kant. 473, 426 P.2d 129; State Blood, 190 Kan. 812, 378 P.2d 548, and cases cited therein.)

The mobility of an automobile has also given rise to court decisions holding that if an officer has reasonable cause to believe a conveyance contains contraband or items which offend against the law the officer may conduct a reasonable warrantless search. (Carroll v. United States (1925) 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; State v. Blood, supra.)

The authority to search in such cases is not necessarily conditioned on the right to arrest or the existence of a search warrant. It may be dependent on reasonable cause which an officer has for belief that contents of the vehicle offend against the law. (Carroll v. United States, supra; State v. Blood, supra. See also United States v. Ventresca, (1965) 380 U.S. 102, 107, 85 S.Ct. 741, 13 L.Ed.2d 684 and United States v. Francolino, (2 Cir. 1966) 367 F.2d 1013, cert. den. 386 U.S. 960, 87 S.Ct. 1020, 18 L.Ed.2d 110.)

The facts of the present case clearly establish the detective had reasonable cause to reach through an open door of the vehicle and inspect the contents of the brown paper sack. A reliable informer had previously advised the detective of the probable use of a station wagon similar in appearance to the one stopped by the officer. The detective investigating...