State v. Vandiver, 70178

• Decision Date: 10 March 1995
• Docket Number: No. 70178,70178
• Citation: 257 Kan. 53,891 P.2d 350
• Parties: STATE of Kansas, Appellee, v. Joseph B. VANDIVER, Appellant.
• Court: Kansas Supreme Court

Page 350

891 P.2d 350

257 Kan. 53

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

No. 70178.

Supreme Court of Kansas.

March 10, 1995.

Syllabus by the Court

1. The principles stated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), apply equally to searches conducted on private property or on property open to the public.

2. Even though a search warrant is being executed, each person on the premises who is neither named nor described in the warrant retains individual protections against an unreasonable search or seizure separate and distinct from the rights of those persons described in the warrant.

3. Under proper circumstances, the police may search a nonresident visitor or the visitor's 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 the person's 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 v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), exception which allows a stop and frisk where there is a reasonable belief that the person is armed and dangerous.

4. 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, for exigent circumstances 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, 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.

5. The State bears the burden of proving to the trial court the lawfulness of the search and seizure. An appellate court will uphold a trial court's suppression of evidence if that ruling is supported by substantial competent evidence. The trial court's decision will be upheld even if it is found that the court reached the right result for the wrong reason.

6. When reviewing a trial court's suppression of evidence, the appellate courts normally give great deference to the factual findings of the trial court. The ultimate determination of the trial court's suppression of evidence is a legal question requiring independent appellate determination.

Daniel S. Garrity, of Garrity, Kuckelman & Kurth, Atchison, argued the cause and was on the brief, for appellant.

Martin Asher, County Atty., argued the cause, and Patrick E. Henderson and Linda S. Mock, Asst. County Attys., and Robert T. Stephan, Atty. Gen., were with him on the briefs, for appellee.

LOCKETT, Justice:

We granted the State's petition for review of the Court of Appeals' reversal of the defendant's conviction for possession of marijuana, a class A misdemeanor contrary to K.S.A. 65-4127b(a)(3) and K.S.A. 65-4105(d)(16). See State v. Vandiver, 19 Kan.App.2d 786, 876 P.2d 205 (1994). The State asserts that the Court of Appeals erred in (1) employing a de novo review of the evidence in determining whether the search was constitutionally permissible and (2) its determination that K.S.A. 22-2509 did not justify the warrantless search of the defendant. This court has jurisdiction pursuant to K.S.A. 20-3018(b) and K.S.A. 60-2101(b).

On May 3, 1993, Mike Wilson, a police detective, obtained a search warrant for David Moneymaker's residence in Atchison, Kansas. The affidavit for the search warrant stated: (1) that Moneymaker lived at the residence; (2) that Moneymaker was a convicted drug offender; (3) that Moneymaker had been alleged to be a 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 search warrant authorized the police to search Moneymaker's apartment for marijuana and other controlled substances; drug paraphernalia; firearms, money, and documentary evidence associated with drug trafficking; and electronic equipment commonly traded for controlled substances.

Within an hour after obtaining the search warrant and without requesting other officers to assist him, Wilson knocked on Moneymaker's apartment door. When Moneymaker opened the door, Wilson entered the kitchen of the apartment and arrested Moneymaker. Wilson then scanned the living room of the apartment and observed six persons in the living room playing a Nintendo-type game. The apartment reeked of burnt marijuana, and a baggy containing green vegetation was on the living room floor in the midst of the individuals gathered around the game. Wilson believed the baggy contained marijuana.

Wilson announced to the individuals that he had a search warrant for the apartment. Wilson immediately arrested an individual he recognized as being involved in a drug buy several days earlier. Wilson then conducted a pat-down search of Vandiver. Wilson removed a 35-millimeter film canister from Vandiver's front pants pocket. At trial, Wilson stated that he removed the canister from Vandiver's pocket "to inspect it, not knowing what it was," and because he was suspicious it was either a weapon or contraband. Vandiver was arrested for possession of marijuana. Wilson then conducted a pat-down search of Orrel Berry. Wilson found Berry had drug paraphernalia on his person. Berry was arrested. Wilson then searched and released each of the remaining individuals after determining they did not possess any contraband.

Prior to trial, Vandiver moved to suppress the film canister containing marijuana as the product of an unlawful search. After hearing the evidence, the district judge found that Wilson did not believe he was in immediate danger or about to be attacked. The judge found that the persons in the apartment had offered no resistance and rejected the State's argument that the warrantless search was justified under K.S.A. 22-2509(a) to protect the officer from attack. The judge found that exigent circumstances to prevent the disposal or concealment of an item described in the warrant existed, upheld the search under K.S.A. 22-2509(b), and denied Vandiver's motion to suppress.

At trial, the film canister containing marijuana was introduced into evidence over defendant's objections. Vandiver was convicted of possession of marijuana. Vandiver appealed. The Court of Appeals held that Wilson had neither probable cause nor exigent circumstances to justify the search of Vandiver under K.S.A. 22-2509(b), reversed Vandiver's conviction, and remanded the case for a new trial. This court granted the State's petition for review.

Standard of Review

The Court of Appeals acknowledged that the State and Vandiver agreed on the facts. Citing State v. Young, 228 Kan. 355, 356, 614 P.2d 441 (1980), the Court of Appeals stated that when the facts material to a motion to suppress evidence are not in dispute, an appellate court's standard of review is unlimited and the question of whether to suppress evidence becomes a question of law. It concluded that when determining questions of law, an appellate court's review is de novo. 19 Kan.App.2d at 788, 876 P.2d 205. Citing State v. McKeown, 249 Kan. 506, 514, 819 P.2d 644 (1991), the State argues that it is the trial court that determines the propriety of the search based upon the facts unique to the case. It asserts that the Court of Appeals' review of the trial court's admission of the evidence seized was limited to determining whether the findings of the trial court were based upon substantial evidence. The State asserts that the Court of Appeals misread Young, erroneously applied a de novo standard of review, and improperly reweighed the evidence in finding that exigent circumstances did not exist to justify the warrantless search of Vandiver.

Young was an interlocutory appeal by the State from an order suppressing the result of a breath alcohol test. Prior to discussing the primary issue, the Young court noted that the parties had stipulated that the test result should be suppressed if no substantial expenditure of time or money would be required of the State in furnishing extra breath samples to the defendant. The Young court rejected the notion that the parties could enter into a stipulation that would bind the court. 228 Kan. at 356-57, 614 P.2d 441. The Young court then noted that because the facts material to the motion to suppress were not in dispute, the question of whether to suppress was a question of law. 228 Kan. at 356, 614 P.2d 441.

In State v. McKeown, 249 Kan. 506, 819 P.2d 644, the State appealed from the district court's finding that the officer did not have reasonable and articulable suspicion to justify the stopping of defendant's vehicle and its order suppressing evidence seized after the stop. The McKeown court, quoting Lansing-Delaware Water District v. Oak Lane Park, Inc., 248 Kan. 563, 572-73, 808 P.2d 1369 (1991), noted that an appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court and must disregard any conflicting evidence or other inferences that might be drawn therefrom. It concluded that there was substantial evidence to support the district court's suppression of the evidence seized as a result of the stop and affirmed the judgment of the district court. 249 Kan. at 514-15, 819 P.2d 644.

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