State v. Wonders, 74601
| Decision Date | 27 December 1996 |
| Docket Number | No. 74601,74601 |
| Citation | 23 Kan.App.2d 287,929 P.2d 792 |
| Parties | STATE of Kansas, Appellee, v. Vernon WONDERS, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. If the findings of the trial court on a motion to suppress evidence are based on substantial evidence, an appellate court will not substitute its view of the evidence for that of the trial court. However, 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. An appellate court's scope of review on questions of law is unlimited.
2. The Fourth Amendment, made applicable to the States through the Fourteenth Amendment, guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Searches and seizures conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well delineated exceptions.
3. The Terry exception to the Fourth Amendment probable cause requirement states that where a law enforcement officer observes unusual conduct which leads the officer reasonably to conclude in light of his or her experience that criminal activity may be afoot, the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling the officer's suspicions. Under Terry, an officer may also conduct a pat-down search where the officer is justified in believing that the person searched is armed and dangerous to the officer or others. However, this protective search must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
4. Because § 15 of the Kansas Constitution Bill of Rights is identical in scope to the Fourth Amendment to the United States Constitution and because the Kansas Supreme Court has never extended state constitutional protections beyond federal guarantees, the adoption of the plain feel exception is consistent with precedents of the Kansas Supreme Court.
5. For the plain feel exception to apply in a Terry search, first, the officer conducting the search must stay within the lawful bounds marked by Terry, and second, the incriminating nature of contraband found during such a search must be immediately apparent. Because the second factor of this exception can be easily abused, trial courts must be careful to base their determination of this factor only after considering all of the facts surrounding the search.
Jean K. Gilles Phillips, Assistant Appellate Defender, Patrick Dunn, Student Intern, and Steven R. Zinn, Deputy Appellate Defender, for appellant.
Mary A. McDonald, County Attorney, and Carla J. Stovall, Attorney General, for appellee.
Before GREEN, P.J., KNUDSON, J., and ERIC S. ROSEN, District Judge, assigned.
Vernon Wonders appeals his convictions for possession of cocaine and possession of marijuana. Wonders raises three principal issues in this appeal: (1) whether the sheriff's deputy had an articulable suspicion that Wonders was involved in a criminal activity, justifying the deputy's temporary seizure of him; (2) whether the deputy feared for his safety, justifying a pat-down search of Wonders; and (3) whether the plain feel exception should be adopted in Kansas and, if so, whether the deputy exceeded the scope of a search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Because we find that the search exceeded the scope of a Terry frisk, we reverse the judgment of the trial court.
On March 7, 1994, sheriff's deputy Kurt Ford stopped a car when its driver failed to signal a lane change. The driver, Albert Garcia, explained and demonstrated that his turn signal was broken. When Ford noticed an odor of alcohol, he had Garcia perform several dexterity tests. After determining that Garcia was not intoxicated, Ford told Garcia that he was free to go. Ford testified that at this point he had no reason to believe that any criminal activity had occurred. Nevertheless, Ford asked Garcia if he had any guns, drugs, drug paraphernalia, or stolen property in his car. When Garcia replied that he did not, Ford asked and obtained Garcia's permission to search his car.
Ford testified that before searching the car, he asked the three passengers, including Vernon Wonders, to get out of the car. Under an armrest in the middle of the front seat, Ford discovered a hand scale. Under the front seat, Ford found a chrome pipe with a burnt end and with burnt residue inside. In the front ashtray, Ford found a wood and brass pipe, also with burnt residue inside; and in the front seat, he found two packs of ZigZag rolling papers. Ford testified that based upon his experience, the items were drug paraphernalia. Ford further testified that when he discovered these items, they caused him to believe that some criminal activity had occurred or was occurring. As a result, Ford feared for his safety and wanted to patdown the car's occupants for weapons. By that time, two other officers had arrived at the scene.
When Ford patted down Wonders, he discovered rolling papers and three plastic baggies containing marijuana in Wonders' front right jean pocket. As a result of this discovery, Wonders was arrested. An inventory search at the jail revealed a plastic packet of crack cocaine in Wonders' front shirt pocket. Wonders was charged with possession of both substances. Wonders filed a motion to suppress evidence of the drugs, arguing that the search of his person was invalid. The trial court denied the motion and found Wonders guilty of both possession of marijuana and possession of cocaine.
On appeal, Wonders argues that the search and seizure violated his right against unreasonable search and seizure because no reasonable suspicion existed to conduct a Terry "stop and frisk." For purposes of narrowing the analysis of this issue, it is equally important to note that Wonders does not challenge the initial stop of the car, the later DUI investigation, or the search of the car.
In State v. Anderson, 259 Kan. 16, 18, 910 P.2d 180 (1996), our Supreme Court articulated the following standard in reviewing a motion to suppress where the facts are not in dispute:
The evidence presented consisted of Ford's testimony and the physical evidence found during the searches. Ford was the sole witness at both the preliminary hearing and the suppression hearing. Because no material facts are in dispute, this is a question of law, and this court's scope of review is unlimited.
The Fourth Amendment, made applicable to the States through the Fourteenth Amendment, Mapp. v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691-92, 6 L.Ed.2d 1081 (1961), guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 2135, 124 L.Ed.2d 334 (1993).
Stop and Frisk
In Dickerson, 508 U.S. at 373, 113 S.Ct. at 2135, the Court recited the Terry exception: " '[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot ...,' the officer may briefly stop the suspicious person and make 'reasonable inquiries' aimed at confirming or dispelling his suspicions." See Terry, 392 U.S. at 30, 88 S.Ct. at 1884; State v. Waddell, 14 Kan.App.2d 129, 132, 784 P.2d 381 (1989). An officer may also conduct a pat-down search where the officer is justified in believing that the person is armed and dangerous to the officer or others. Terry, 392 U.S. at 24, 88 S.Ct. at 1881. However, this protective search must be "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." 392 U.S. at 26, 88 S.Ct. at 1882; see Dickerson, 508 U.S. at 373, 113 S.Ct. at 2135-36; Waddell, 14 Kan.App.2d at 132, 784 P.2d 381.
K.S.A. 22-2402 codifies the principles set forth in Terry and provides:
To continue reading
Request your trial
-
S.J., In Interest of
...Mitchell, 165 Ill.2d 211, 209 Ill.Dec. 41, 650 N.E.2d 1014 (1995); Stone v. Indiana, 671 N.E.2d 499 (Ind.App.1996); State v. Wonders, 23 Kan.App.2d 287, 929 P.2d 792 (1996); Commonwealth v. Crowder, 884 S.W.2d 649 (Ky.1994); State v. Matthews, 654 So.2d 868 (La.App.1995); State v. Smith, 34......
-
State v. Bridges
...weapons in his patdown of the defendant's person when he detected the bottle. Compare Minnesota v. Dickerson, supra; State v. Wonders, 23 Kan.App.2d 287, 929 P.2d 792 (1996)(officer continued pat down of defendant's pocket after he determined that it did not contain a Legality of the seizur......
-
State v. Wonders
...convictions, finding the search exceeded the scope of a Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), search. 23 Kan.App.2d 287, 929 P.2d 792. We granted the State's petition for Factual statement On March 7, 1994, Harvey County Deputy Sheriff Kurt Ford legally stopped a ......