State v. Torres

• Decision Date: 23 December 2016
• Docket Number: No. 114,269,114,269
• Citation: 386 P.3d 532
• Parties: State of Kansas, Appellee, v. Seth Torres, Appellant.
• Court: Kansas Court of Appeals

386 P.3d 532

State of Kansas, Appellee,

v.Seth Torres, Appellant.

No. 114,269

Court of Appeals of Kansas.

Opinion filed December 23, 2016

Randall L. Hodgkinson and Susan E. Bandy, legal intern, of Kansas Appellate Defender Office, for appellant.

Carissa E. Brinker, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Hill, P.J., Buser and Leben, JJ.

Leben, J.:

Under police surveillance, Justin Barrett bought about 3.5 grams of methamphetamine from Seth Torres on October 9, 2014, using $220 cash with recorded serial numbers. Torres left the drug-deal location in a car, and a police officer pulled him over. After Torres was arrested, another officer searched the car he'd been in and found $200 of the recorded money. A jury convicted Torres of distributing methamphetamine and using a communication device to facilitate a drug felony.

On appeal, Torres claims that the search of the car was illegal, so the district court should not have allowed the State to present evidence of the $200 found in the car. Warrantless searches are generally illegal, but this search was justified as a search incident to arrest and under the automobile exception to the warrant requirement, so the district court correctly admitted the evidence at trial. Torres also argues that there was insufficient evidence to support the required venue element of the communication-device charge—that he used a communication device in Lyon County , where he was charged and tried, to facilitate a drug felony—but we find no problem with the evidence supporting venue. First, the Kansas Supreme Court ruled in State v. Castleberry , 301 Kan. 170, 177, 339 P.3d 795 (2014), that there's proper venue—meaning the State can prosecute a crime there—at each location where the parties to a telephone call are located, at least if the defendant knew the location of the person he was talking to. Here, the evidence showed that Barrett was in Lyon County when he called Torres about the deal, and Torres called Barrett to change the drug-deal location when he knew that Barrett was already at the first location they had agreed upon, which was in Lyon County. Second, there's normally no requirement that a defendant know what county he or she is committing a crime in for the State to prosecute the crime there, and it's clear in this case that Barrett was in Lyon County when Torres called him about the drug deal. Because the search was authorized and venue was proper, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Barrett was facing criminal charges for distributing methamphetamine, so he made a deal with the police: he would buy methamphetamine from Torres under police surveillance, and the police would put in a good word for Barrett with the prosecutor's office. Barrett arranged to buy methamphetamine from Torres on October 9, 2014, and made the purchase later that evening while the police watched and listened in. Barrett eventually pled guilty to possession of methamphetamine, a less serious crime than distribution. The police charged Torres with distribution of methamphetamine and using a communication device (a cell phone) to commit a drug felony.

At trial, Dominick Vortherms, an Emporia police officer, and Heath Samuels, a Lyon County sheriff's deputy, testified about arranging and observing the drug deal. Vortherms said he had listened as Barrett called Torres, who was listed as "Swth" in Barrett's phone (reflecting "Seth" but with a typo), to set up a deal; Barrett placed the call from the Emporia Police Department. Vortherms then searched Barrett and Barrett's car to make sure Barrett didn't have any drugs or money. Barrett wore a wire so the police could listen to the transaction, and Vortherms gave Barrett $220 in cash after recording the serial numbers of the bills to help keep track of them. Samuels said that he followed Barrett from the police station to a house in Emporia (the county seat of Lyon County), where the purchase was supposed to take place. Vortherms was already parked near that house so he could observe the purchase.

Barrett also testified at trial, generally confirming the officers' account of setting up the purchase. Barrett said he had either called or texted Torres around 4 or 5 in the afternoon that day, while Vortherms was present. Barrett said that the deal was supposed to take place at Torres' girlfriend's house (located in Emporia) but that when he had arrived there, Torres had contacted him on his cell phone to change the location to an Emporia apartment complex that he called the "Skittles Apartments." The officers followed Torres to the new location and set up to observe the drug deal. Samuels could see Barrett in the parking lot; Vortherms couldn't see Barrett but could hear the transaction through the wire that Barrett was wearing, so the two officers stayed on the phone with each other for the entire transaction, relaying information back and forth.

Eventually, Samuels saw a white car pull into the parking lot of the apartment complex; Vortherms confirmed to Samuels that Torres had arrived. (Samuels testified that he knew what Torres looked like, and Vortherms said he recognized Torres' voice on the wire recording.) Barrett got out of his car and walked over to Torres. Samuels could see them standing together underneath a streetlight, but he didn't see the drugs or money actually change hands. Barrett testified that he bought around 3.5 grams of methamphetamine from Torres. Barrett then got into his car and drove away; Vortherms followed him back to the police station. At the station, the police officers searched Barrett and his car again, and Barrett surrendered the drugs and the wire.

Samuels testified that after the drug deal, Torres had gone into one of the apartments. Samuels remained at the complex to watch that apartment while Vortherms prepared a search warrant for the $220 that Barrett had paid Torres for the drugs. While Samuels was waiting, Vortherms told him that the substance Barrett had received from Torres had field-tested positive for methamphetamine. (At trial, a forensic scientist from the Kansas Bureau of Investigation testified that she had weighed and tested the substance and found it was 3.3 grams of methamphetamine.) At some point, Samuels moved his observation point to an unmarked car in the parking lot about 20 yards from the apartment. From there, he saw Torres come out of the apartment and get into the passenger side of a car that had parked right next to Samuels' car. Samuels asked an officer who had been standing by as backup to follow and stop the car that Torres was in. After 10 or 15 minutes, another officer arrived to watch the apartment, and Samuels drove to the traffic stop.

When Samuels arrived at the traffic stop, both the driver and Torres were in custody, sitting in police cars. Samuels arrested Torres and read him his rights; Torres said he wanted to speak with an attorney, and another officer took Torres to jail. The driver of the car declined Samuels' request for permission to search the car. Samuels then walked around the car and looked in the windows with a flashlight. On the passenger floorboards, Samuels saw a roll of cash sticking out of an open black sunglasses bag. Samuels testified that in his experience as a narcotics officer, drug dealers tend to keep their money in similar rolls. Samuels got the car keys from the driver and retrieved the money; the roll contained $485, $200 of which matched the recorded money that Barrett had used to buy the drugs. The officers also eventually obtained a warrant and searched the apartment that Torres had been in, but they didn't find any more of the recorded cash.

Before trial, Torres had moved to suppress evidence of the $200 found in the car, arguing that the search of the car was illegal. After a hearing, the district court denied that motion, and the evidence was admitted over Torres' objection at trial.

The jury found Torres guilty of distributing methamphetamine and using a cell phone to commit a drug felony. Based on Torres' criminal-history score and the severity level of the distribution crime, the district court sentenced Torres to the presumptive standard sentence of 51 months in prison with 36 months of postrelease supervision. The district court also imposed an 8–month sentence for the cell-phone conviction, to be served concurrently with (at the same time as) the 51–month sentence.

Torres has appealed to this court.

ANALYSIS

I. The Warrantless Search of the Car Was Justified as a Search Incident to Arrest and by the Automobile Exception.

Torres first argues that the district court should have suppressed the evidence of the $200 of recorded cash that Samuels found in the car because Samuels' search of the car was illegal.

When the district court has ruled on a motion to suppress, we review that decision with a two-part standard of review. State v. Patterson , 304 Kan. 272, 274, 371 P.3d 893 (2016). First, we ask whether the factual findings are supported by substantial evidence—that is, evidence that a reasonable person would find adequate to support a conclusion. 304 Kan. at 274, 371 P.3d 893 ; State v. Talkington , 301 Kan. 453, 461, 345 P.3d 258 (2015). Second, we review the ultimate legal conclusions anew, without any required deference to the district court. Patterson , 304 Kan. at 274, 371 P.3d 893.

The Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights protect us from unreasonable searches and seizures; courts have interpreted that to require that police obtain search warrants in most cases. Searches without a warrant are automatically unreasonable and invalid unless one of several recognized exceptions to the search-warrant requirement applies. State v. Neighbors , 299 Kan. 234, 239, 328 P.3d 1081 (2014). The exceptions potentially relevant to this case cover search incident to a lawful arrest,...