State v. Shelton, No. 89,610.

• Decision Date: 23 July 2004
• Docket Number: No. 89,610.
• Parties: STATE OF KANSAS, Appellee, v. CHARLES R. SHELTON, Appellant.
• Court: Kansas Supreme Court

278 Kan. 287

93 P.3d 1200

STATE OF KANSAS, Appellee, v. CHARLES R. SHELTON, Appellant.

No. 89,610.

Supreme Court of Kansas.

Opinion filed July 23, 2004.

Korey A. Kaul, assistant appellate defender, argued the cause, and Peter Maharry, assistant appellate defender, was with him on the brief for appellant.

Bobby J. Hiebert, Jr., assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

The defendant, Charles R. Shelton, was charged with several drug offenses based upon evidence seized in an inventory search of the van he was operating. We granted his petition for review on the question of whether the district court erred in not suppressing evidence resulting from the inventory search. More specifically, we consider whether the impoundment of the van was lawful where officers did not ask the defendant as to disposition of the van and whether the search was pretextual based upon officers' failure to include all valuables in the inventory. We affirm.

Facts

On March 12, 2002, the Saline County Sheriff's office received a report that a van, surrounded by coolers, was sitting in the road in a rural area near Simpson and Assaria Roads. Several people ran away from the area when the reporting caller drove by. Deputies James Fletcher and Glenn Gathers were dispatched to the scene around 6:13 a.m.

As the officers approached the intersection, Deputy Fletcher observed a van parked in the middle to right-hand side of the road near a stop sign. He could see the van from about a half mile away. Fletcher found the defendant asleep in the driver's seat, and he knocked on the window to wake him. He asked for a driver's license and the defendant gave him a Kansas identification card. After running his name through the dispatch center, Fletcher arrested the defendant for operating a vehicle while his license was revoked. The defendant told Fletcher that he was from Carlton, Kansas. Fletcher did not recall asking the defendant if there was anyone in the area that could move the van for him, and the defendant testified that he was not consulted. When asked if the defendant was of right mind and capable of making a decision regarding the disposition of the van, Fletcher replied, "Possibly." As department policy dictated that the vehicle be impounded if an individual was arrested and someone was not immediately available to retrieve the vehicle, the officers contacted a towing company to take the van out of the intersection.

The officers began an inventory search of the van. Fletcher got into the van and wrote down the odometer reading, the make of the van, and the license tag number. He noticed a drinking cup with a syringe in it between the driver and passenger seats. He asked the defendant if he was a diabetic and the defendant responded in the negative. Fletcher gave the inventory sheet to Deputy Gathers who listed the personal property in the van as a CD case, miscellaneous pictures, a Kansas tag, miscellaneous clothing, and videotapes.

Fletcher testified that he understood department policy was to list all items of value in an inventory search so that if something later turns up missing the officers can refer to the impound sheet. Fletcher admitted that there were items in the van that were not listed, including the items seized as evidence. Evidence taken from the van included the syringe, a duffel bag, an address book, and an "owe sheet" in the bag. At the preliminary hearing, Fletcher testified that he found two backpacks in the passenger area which contained baggies of marijuana, methamphetamine, and electronic scales.

Aaron Dennett, the van's owner, picked up the van from the impoundment location the next day. The defendant examined the van at Dennett's home 3 days after his arrest and took pictures of the inside of the van which were admitted at the suppression hearing. The defendant explained that he took the pictures because he did not get a copy of the impound inventory. The pictures showed a CD case and CDs, glasses, a CD player installed in the van, two 1888 and 1898 silver dollars, tools and toolboxes, an old tape deck, an electrical connector box, a first-aid kit, a jack, a laundry basket with sheets, a bag of dog food, and other things "that probably should never have been in the van."

The defendant was charged with possession of methamphetamine with intent to sell, possession of marijuana with intent to sell, possession of methamphetamine, possession of marijuana, possession of drug paraphernalia, and driving while his license was revoked. He moved to suppress all evidence found in the van, arguing that his van was unlawfully impounded and that the subsequent inventory search was a subterfuge by law enforcement officers to conduct a warrantless search.

The district court denied the motion after a suppression hearing. The court first found that probable cause existed to arrest the defendant for driving while his license was revoked. Second, the court found the impoundment was legal, reasoning that no one was at the scene to take charge of the van, the defendant was not capable of driving the van, no evidence was presented that the deputy could have legally parked it alongside a country road, officers do not have to summon someone from outside the immediate vicinity and the location of the van was a "pretty long ways" from the town where the defendant claimed he resided, and no obligation existed to leave an officer with the van until its owner could be contacted.

Finally, the court found that the officer was required to conduct an impoundment search, regardless of whether it turned out to be a full and complete search. It reasoned that Fletcher began the search as a lawful inventory search and had no reason to suspect anything until he saw the syringe in the cup in plain view. The court concluded that this case does not run afoul of either State v. Teeter, 249 Kan. 548, 819 P.2d 651 (1991), or State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996), as a search incident to arrest.

The defendant was tried on stipulated facts, reserving his right to appeal the court's ruling on the motion to suppress, and he was convicted of felony possession of methamphetamine with intent to sell, felony possession of marijuana with intent to sell, felony possession of drug paraphernalia, and driving while license revoked.

The defendant appealed the court's ruling on the motion to suppress to the Court of Appeals, arguing the inventory search was illegal because it was a cover for an investigatory search by the officers and because the officers failed to give the defendant the option of having someone else retrieve the van before immediately having it towed and impounded.

In affirming the district court, the Court of Appeals found the impoundment was legal. The court distinguished this case from the unlawful impoundment in Teeter where the defendant was parked in a private area, the defendant was not arrested prior to the impoundment, and the defendant was instructed to drive the vehicle to the impoundment area. The court found that Teeter more generally applied the guidance of State v. Fortune, 236 Kan. 248, 689 P.2d 1196 (1984), and State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975), and did not merely decide the case based on lack of consultation. State v. Shelton, No. 89,610, unpublished opinion filed Nov. 26, 2003.

The court concluded that the facts of this case were most similar to State v. Bornholdt, 261 Kan. 644, 657-58, 932 P.2d 964 (1997), where the court endorsed the Fortune and Boster criteria by upholding an impoundment where the defendant was arrested and left his vehicle unattended, the vehicle was stopped in a lane of traffic, and the record did not indicate whether the defendant attempted to make any disposition of the vehicle. The Court of Appeals reasoned that the defendant testified that he was unaware of anyone being around, the defendant was lawfully arrested, the defendant's van was parked in the middle of a rural roadway, and the record did not indicate that the defendant objected to the impoundment or suggested any practical alternatives, nor did he on appeal, and so the impoundment was legal.

The Court of Appeals also rejected the defendant's argument that the inventory search was a ruse for an investigatory search, noting that the inventory search was conducted pursuant to department policy and that the only evidence that the search was a ruse was that some items in the van, arguably of value, were not listed on the inventory sheet. As Fletcher testified that he had done previous inventory searches and his practice was to list only those items of value, the court declined "to invalidate the search based solely on Fletcher's discretionary determination of what was a valuable item according to the standards of the department," citing Florida v. Wells, 495 U.S. 1, 4, 109 L. Ed. 2d 1, 110 S. Ct. 1632 (1990). The court concluded that Fletcher's listing of items from the search, coupled with his testimony which the district court found credible, was substantial competent evidence that Fletcher engaged in a reasonable inventory search.

Inventory Search

The defendant contends that all evidence obtained by the police from the inventory search of the vehicle he was operating should have been suppressed for two reasons: (1) He was not asked by the police as to the disposition of the vehicle and (2) the search was a cover for an investigatory search by the officers. The first contention deals with the impoundment of the vehicle and the second questions the search itself.

Our standard of review on both questions is the same primarily because both questions involve factual determinations by the trial court as well as a legal determination based on those findings of fact and, thus, the resolution of both contentions is a mixed question of fact...