State v. Vandiver, 70178

• Decision Date: 17 June 1994
• Docket Number: No. 70178,70178
• Citation: 876 P.2d 205,19 Kan.App.2d 786
• Parties: STATE of Kansas, Appellee, v. Joseph B. VANDIVER, Appellant.
• Court: Kansas Court of Appeals

Page 205

876 P.2d 205

19 Kan.App.2d 786

STATE of Kansas, Appellee, v. Joseph B. VANDIVER, Appellant.

No. 70178.

Court of Appeals of Kansas.

June 17, 1994.

Review Granted Sept. 7, 1994.

Syllabus by the Court

1. Under proper circumstances, the police may search a nonresident visitor or his belongings in the course of executing a warrant for a premises search. These circumstances include: where the individual consents to being searched, where the item is in plain view on the person or in his or her possession, where there has been a valid arrest, and where there is probable cause to search plus exigent circumstances. A search may also be conducted under the Terry exception, which allows the police to stop and frisk a suspect where there is a reasonable belief that the person is armed and dangerous.

2. Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt.

3. Exigent circumstances sufficient to justify a warrantless search include situations where the police reasonably determine, from the surrounding circumstances, that the evidence will be destroyed or concealed before a search warrant can be obtained. Exigent circumstances, however, do not include situations where only a mere possibility exists that evidence could be destroyed or concealed. Consequently, to justify a warrantless search of a nonresident visitor or the visitor's belongings in the course of executing a search warrant for a premises based upon exigent circumstances, there must be some observable circumstance, such as an individual fleeing from police or an individual acting in a furtive or suspicious manner, in addition to the reasonable determination of the police that the evidence will be concealed or destroyed before a search warrant can be obtained.

Daniel S. Garrity, of Garrity, Kuckelman & Kurth, Atchison, for appellant.

Linda S. Mock, Asst. County Atty., Martin Asher, County Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before GERNON, P.J., and ELLIOTT and GREEN, JJ.

GREEN, Judge:

Joseph B. Vandiver appeals his conviction of possession of marijuana following the trial court's refusal to grant his motion to suppress evidence.

This case began with the issuance of a search warrant for an upstairs apartment residence. The affidavit accompanying the application for a search warrant stated the following facts: (1) that David Moneymaker lived at the residence; (2) that Moneymaker was a convicted drug offender; (3) that an informant had reported to police that Moneymaker was a certain individual's source for marijuana; (4) that Moneymaker previously had been seen weighing marijuana at the residence; and (5) that two marijuana purchases had occurred at the residence within the previous four days. The warrant authorized the police to search Moneymaker's apartment for marijuana, other controlled substances, drug paraphernalia, money, documentary evidence of drug transactions, firearms, and electronic equipment commonly traded for controlled substances. Although the warrant authorized the search of Moneymaker's apartment, the warrant failed to authorize the search of any individuals at the apartment.

To execute the search warrant, Detective Mike Wilson went to the apartment alone and knocked on the door. Within seconds the door was opened by Moneymaker. Wilson immediately entered the apartment, arrested Moneymaker, and handcuffed him.

As Wilson looked around the apartment, he saw six other persons playing a video game in the living room. Wilson entered the living room and told the individuals he had a search warrant. Once in the living room, Wilson smelled what he believed to be the odor of burnt marijuana and saw a bag of green vegetation, which he believed was marijuana, lying on the floor among the six individuals.

Wilson arrested and handcuffed one of the six individuals after recognizing him as being involved in a drug buy several days earlier. Wilson then began a pat-down search of the remaining five individuals. He testified the purpose of the pat-down search was to search for weapons or contraband.

In searching defendant, Wilson removed a 35-millimeter film canister from defendant's front pant pocket. Wilson later admitted that when he patted the film canister in defendant's pants pocket, the canister did not feel like a weapon. He testified he removed the canister "to inspect it, not knowing what it was." When Wilson opened the film canister, he saw what he believed to be marijuana. Wilson then arrested and handcuffed defendant.

In completing his search of the remaining four individuals, Wilson found drug paraphernalia on one of them. Wilson also arrested that individual and released the remaining three individuals.

As a result of the marijuana found in the film canister, defendant was charged with possession of marijuana. He later sought to have the marijuana suppressed as the by-product of an unlawful search. After a hearing, the trial court denied his motion.

The marijuana obtained from the film canister was introduced into evidence over defendant's objections, and the trial court later convicted defendant of possession of marijuana. He timely appealed.

Defendant argues the trial court erred in finding exigent circumstances existed which justified the search.

Here, the State and defendant agree on the facts in this appeal, and accordingly our review is unlimited. "When the facts material to a decision of the court on a motion to suppress evidence are not in dispute the question of whether to suppress becomes a question of law." State v. Young, 228 Kan. 355, 356, 614 P.2d 441 (1980). On questions of law, our review is de novo. See Zion Lutheran Church v. Kansas Comm'n on Civil Rights, 16 Kan.App.2d 237, 239, 821 P.2d 334 (1991), aff'd 251 Kan. 206, 830 P.2d 536 (1992).

K.S.A. 22-2509 provides:

"In the execution of a search warrant the person executing the same may reasonably detain and search any person in the place at the time:

(a) To protect himself from attack, or

(b) To prevent the disposal or concealment of any things particularly described in the warrant."

Although the State tried to justify the search of defendant under K.S.A. 22-2509(a), which allows a police officer to protect himself or herself by detaining and searching a person while executing a search warrant if he or she believes the person is armed and dangerous, the trial court rejected this argument. In rejecting the State's argument, the trial court stated Wilson failed to show he was in any immediate danger, he was about to be attacked, or he was offered any resistance when he entered the apartment. Because the State has not appealed this finding nor briefed this issue on appeal, we have not considered whether Wilson's search and its scope were justified according to K.S.A. 22-2509(a). "Trial court determinations of fact, unappealed from, are final and conclusive." Palmer v. State, 10 Kan.App.2d 656, 657, 707 P.2d 1091, rev. denied 238 Kan. 878 (1985).

Nevertheless, the trial court upheld the warrantless search of defendant under exigent circumstances pursuant to K.S.A. 22-2509(b). The trial court found exigent circumstances based on the following facts: (1) the number of individuals in the residence; (2) the smell of burnt marijuana; (3) the previous police surveillance of the apartment; and (4) the speed and ease in which drugs can be concealed or destroyed.

In reaching its decision, the trial court was persuaded by our opinion in State v. Horn, 15 Kan.App.2d 365, 808 P.2d 438, rev. denied 248 Kan. 998 (1991). In Horn, the police, in executing a search warrant authorizing the search of "the person of all persons," searched the defendant and found cocaine and a large amount of cash in his jacket pocket. 15 Kan.App.2d at 366, 808 P.2d 438. In rejecting the State's argument that the search warrant authorized a search of all persons present in the house, we stated:

"The facts in the affidavit are simply insufficient to infer that the sole or primary activity at the residence was the sale of drugs and that everyone present would be involved in illegal activity. Accordingly, the search warrant was invalid as to its authorization to search 'the person of all persons on said premises.' " 15 Kan.App.2d at 367, 808 P.2d 438.

Yet, in upholding the search under exigent circumstances, we noted the following:

"[T]he police had a valid warrant to search the premises for drugs and drug paraphernalia. When they entered the residence, the occupants fled toward the back of the house. Money and drug paraphernalia were in plain view, indicating that drugs were being sold. Given that drugs are easily concealed and easily disposed of, the police had probable cause after entering the residence to search everyone running toward the back of the house, including appellant. This action by the police did not convert the search warrant into a general warrant, and did not deprive Horn of his constitutional right to be free from unreasonable searches. Exigent circumstances existed to justify the search under K.S.A. 22-2509." 15 Kan.App.2d at 367-68, 808 P.2d 438.

Horn, however, is distinguishable from the facts presented here. For instance, no evidence was presented to establish that any of the individuals in the living room made any attempt to flee or made any sudden movement which could be interpreted as an attempt to conceal or dispose of evidence.

The State, however, argues the search is justified based upon State v. Loudermilk, 208 Kan. 893, 494 P.2d 1174 (1972). In Loudermilk, the police had obtained a search warrant to search for opium at a residence. The warrant authorized the search of person, place, or things which contained opium. 208 Kan. at 894, 494 P.2d 1174. An affidavit accompanying the search warrant stated that the persons on the...