State v. Thornton
| Decision Date | 15 May 2020 |
| Docket Number | No. 120,028,120,028 |
| Citation | 462 P.3d 662 (Table) |
| Parties | STATE of Kansas, Appellee, v. James L. THORNTON, Appellant. |
| Court | Kansas Court of Appeals |
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.
Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Bruns, P.J., Malone and Gardner, JJ.
A jury convicted James Lawton Thornton of possession of marijuana, methamphetamine, and drug paraphernalia. On appeal, Thornton argues that the district court erred by denying his motion to suppress evidence seized during and after an illegal search of his backpack. He also argues that the district court erred in failing to give a unanimity instruction. We agree that Thornton's backpack was searched illegally, so the district court erred in admitting the syringe discovered during that search. But the rest of the evidence was properly admitted, and the jury was properly instructed. We find no reversible error.
Officer Peter Kerby pulled Thornton over while Thornton was riding a bicycle on a December evening after Kerby saw him leaving a known drug house. Although Thornton was holding a lantern as he rode, Kerby initiated the stop because he did not see any lights or reflectors on Thornton's bike, as were required by a Lawrence city ordinance. Kerby attempted to pull Thornton over but it became clear he was not going to stop. So Kerby followed Thornton with his patrol lights and spotlight on before edging Thornton off the road with his patrol car. Still, Thornton dodged Kerby's car and continued pedaling past him. Kerby then drove forward and blocked Thornton from riding further, stopping him around 75-100 feet from where he had first tried to stop him. Kerby removed a large machete from the side of Thornton's backpack, and placed him in handcuffs.
Once Thornton was cuffed, Kerby patted him down and found a pocket knife in Thornton's pocket. Once the backup officer, Officer Matthew Roberts, arrived, Kerby took Thornton's backpack and placed it on the hood of his car. Officers learned that the bicycle Thornton had been riding was stolen, and that Thornton had an active warrant for "some kind of drug charge" out of Franklin County for his arrest. Kerby then arrested Thornton.
When Roberts asked Thornton if he had anything on him that he needed to be aware of, Thornton responded that he might have a marijuana pipe in his pocket. Roberts searched Thornton and found a blue glass pipe.
Kerby searched Thornton's backpack and found a pair of wire cutters and an orange-tipped syringe. Kerby and Roberts then retraced Thornton's path to look for any discarded evidence. On the ground near where Kerby first tried to stop Thornton, they found a single plastic baggie of marijuana that also contained an individually wrapped, small amount of methamphetamine.
The State charged Thornton with possession of methamphetamine, marijuana, and drug paraphernalia. Before trial, Thornton moved to suppress all statements and evidence, arguing they had been obtained as a result of an illegal arrest. But the district court denied the suppression motion. Specifically, the district court found that Thornton's statement regarding the pipe in his pocket did not need to be suppressed even though he was not read his Miranda warnings because Roberts asked the question of whether Thornton had anything in his pockets as a legitimate safety concern for himself. The district court also held that Thornton did not have standing to ask that the baggie of drugs be suppressed because he denied possession of the drugs and they were found on the ground. The district court did not make any specific findings with regard to the evidence found in the backpack.
A jury found Thornton guilty on all three counts. The district court sentenced Thornton to eighteen months in prison and twelve months of postrelease supervision. Thornton timely appealed.
Thornton first argues that the district court erred in denying his motion to suppress the syringe discovered in his backpack because the search of his backpack was illegal—it did not fall within any exception to the warrant requirement. He then asserts that the baggie of drugs was found as a result of the illegal search of his backpack, so the drugs must be suppressed as fruit of the poisonous tree.
The State agrees that the district court erred in failing to suppress the syringe. Nonetheless, it argues that the district court properly admitted the drugs because they were not found as a result of the illegal search of the backpack.
Our standard of review for a district court's decision on a motion to suppress has two components. We review the district court's factual findings to determine whether they are supported by substantial competent evidence. Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Doelz , 309 Kan. 133, 138, 432 P.3d 669 (2019). In reviewing the factual findings, we do not reweigh the evidence or assess the credibility of witnesses. We then review the ultimate legal conclusion using a de novo standard. State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018). We use that same de novo standard in reviewing the existence of standing. Kincaid v. Dess , 48 Kan. App. 2d 640, 646-47, 298 P.3d 358 (2013).
Officers had no warrant to search Thornton's backpack, where they found the syringe. The Fourth Amendment to the United States Constitution applies to the states through the Constitution's Fourteenth Amendment. State v. Baker , 306 Kan. 585, 589, 395 P.3d 422 (2017). It and Section 15 of the Kansas Constitution Bill of Rights protect Kansas citizens from "unreasonable searches and seizures." 306 Kan. at 589-90. A warrantless search or seizure is presumptively unreasonable unless that search or seizure falls within certain recognized exceptions to the search warrant requirement. State v. Cleverly , 305 Kan. 598, 604, 385 P.3d 512 (2016). The State carries the burden of proving one of the exceptions applies. State v. Overman , 301 Kan. 704, 710, 348 P.3d 516 (2015). If no exception applies, a judicially created remedy called the exclusionary rule usually prevents the State from using evidence obtained in an illegal search against the victim of the search. State v. Pettay , 299 Kan. 763, 768-69, 326 P.3d 1039 (2014) (citing Illinois v. Krull , 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L. Ed. 2d 364 [1987] ).
To the district court, to justify the officer's search of the backpack, the State invoked the search incident-to-lawful-arrest exception to the warrant requirement. Under that exception, a law enforcement officer making a lawful arrest can lawfully search the arrestee and the area within the arrestee's immediate control without getting a warrant. State v. Torres , 308 Kan. 476, 484, 421 P.3d 733 (2018). This exception serves two purposes: (1) protecting officer safety by allowing a search for weapons an arrestee could reasonably access; and (2) preventing an arrestee from destroying or concealing evidence of the crime of arrest. See Chimel v. California , 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) ; Torres , 308 Kan. at 483.
On appeal, the State concedes that the search incident-to-lawful-arrest exception does not apply. We agree. The record shows that when Kerby searched Thornton's backpack, he was not searching for evidence of any crime Thornton was arrested for—failing to yield or fleeing and eluding. And Kerby never suggested that he searched Thornton's backpack because he thought he would find evidence of a crime.
Nor do the facts show that Kerby searched the backpack for protective purposes. Kerby searched Thornton's backpack after he had removed it from Thornton, had placed it on the hood of the police car, and had handcuffed Thornton. So Thornton could not have accessed the backpack at the time it was searched. Under these circumstances, the search incident-to-lawful-arrest exception to the warrant requirement does not apply. See State v. Ritchey , 56 Kan. App. 2d 530, 536, 432 P.3d 99 (2018) ()
The State does not assert that any other exception to the warrant requirement applies to the search of the backpack. In fact, the State concedes that because it did not present any evidence regarding Lawrence jail's search policies, it cannot now claim that the inevitable discovery exception applies. We agree. See Baker , 306 Kan. at 592-94 (). Thus, the district court erred in failing to suppress the syringe obtained in the illegal search of Thornton's backpack.
Officers also found a pipe in Thornton's pants. Roberts asked Thornton after his arrest if he had anything on him that Roberts needed to be aware of. Thornton replied that he may have a marijuana pipe in his pants pocket. Roberts then searched Thornton and found a blue glass pipe that Roberts testified smelled like marijuana. Neither party argues that this pipe was found in or was tainted by an illegal search, and, as Thornton tacitly concedes, the pipe could be considered drug paraphernalia. So, although the syringe should have been suppressed, the pipe was lawfully admitted as evidence that Thornton possessed drug paraphernalia.
Thornton next argues that the baggie containing marijuana and methamphetamine was tainted by the illegal search of the backpack. Thornton contends the discovery of the drugs was derived from illegal search...
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