State v. Wonders

• Citation: 952 P.2d 1351,263 Kan. 582
• Decision Date: 23 January 1998
• Docket Number: No. 74601,74601
• Parties: STATE of Kansas, Appellee, v. Vernon WONDERS, Appellant.
• Court: United States State Supreme Court of Kansas

Page 1351

952 P.2d 1351

263 Kan. 582

STATE of Kansas, Appellee, v. Vernon WONDERS, Appellant.

No. 74601.

Supreme Court of Kansas.

Jan. 23, 1998.

Syllabus by the Court

1. When a motion to suppress evidence is filed, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. If the findings of the trial court on a motion to suppress evidence are based on substantial evidence, the appellate court must not substitute its view of the evidence for that of the trial court.

2. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.

3. Under the plain view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object--i.e., if its incriminating character is not immediately apparent--the plain view doctrine cannot justify its seizure.

4. The United States Supreme Court extended the plain view exception in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), holding that if a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure is justified by the same practical considerations that inhere in the plain view context.

5. Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. The wording and scope of the two sections are identical for all practical purposes. If conduct is prohibited by one, it is prohibited by the other.

6. In State v. Galloway, 232 Kan. 87, Syl p 2, 652 P.2d 673 (1982), the Kansas Supreme Court adopted the "plain view" exception to the Fourth Amendment warrant requirement and held it applies when (1) the initial intrusion which afforded the plain view is lawful; (2) the discovery of the evidence is inadvertent; and (3) the incriminating character of the article is immediately apparent to searching authorities.

7. The plain feel exception announced by the United States Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), is applicable to lawful searches in Kansas.

8. A trial court is in a unique position to evaluate a law enforcement officer's experience, training, and ability to detect and recognize contraband. If the trial court's findings on these matters are supported by substantial evidence, they may not be disturbed on appeal.

9. The phrase "immediately apparent," in the context of a law enforcement officer's plain view or plain feel search, does not imply an unduly high degree of certainty as to the incriminatory character of evidence. For an object to be incriminating for constitutional purposes, the seizing authority need only have reasonable or probable cause to believe that the object is evidence of a crime.

10. The same construction of the "immediately apparent" requirement in plain view situations is applied to those involving plain feel.

11. The legality of a law enforcement officer's seizure of property in plain view or on plain feel is immediately apparent if there is reasonable or probable cause to associate the property with criminal activity. The totality of the circumstances surrounding an encounter and the seizing officer's training and experience all contribute to a trial court's findings regarding the seizure.

Jean K. Gilles Phillips, Special Appellate Defender, argued the cause, and Patrick Dunn, Student Intern, and Steven R. Zinn, Deputy Appellate Defender, were with her on the brief for appellant.

Mary A. McDonald, County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with her on the briefs for appellee.

LARSON, Justice:

In this case of first impression involving the Fourth Amendment to the United States Constitution, we must determine whether Kansas should adopt the "plain feel" corollary of the plain view exception to the search warrant requirement. If we do, the question then becomes whether substantial competent evidence exists to uphold the trial court's ruling that three baggies of marijuana discovered in Vernon Wonders' pocket were immediately apparent to a law enforcement officer conducting a properly authorized pat-down search of Wonders.

Wonders appealed his bench trial convictions of possession of marijuana, K.S.A.1993 Supp. 65-4127b(a)(4), and possession of cocaine, K.S.A.1993 Supp. 65-4127a(a), to the Court of Appeals. The panel reversed his 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 review.

Factual statement

On March 7, 1994, Harvey County Deputy Sheriff Kurt Ford legally stopped a vehicle driven by Albert Garcia for failing to properly use a turn indicator. There were three passengers in the vehicle. Deputy Ford detected the odor of alcohol emanating from the vehicle when he spoke to Garcia and asked him to exit the vehicle to perform sobriety tests. After Deputy Ford was satisfied that Garcia was not legally intoxicated, Ford told Garcia he was free to leave but asked him whether his vehicle contained any weapons or contraband. Garcia replied that it did not and consented to a search of his vehicle.

Deputy Ford instructed the three passengers to exit the vehicle. Ford's search revealed a hand scale, zigzag rolling papers, and two pipes emitting an odor of burnt marijuana. Based upon his training and experience, Ford testified he believed the items to be illegal drug paraphernalia.

Deputy Ford had 6 years of field experience dealing with drugs and drug paraphernalia and had made numerous drug-related arrests while serving as a law enforcement officer. Ford had received training in drug detection during continuing education courses and had served as the Harvey County Sheriff's Drug Abuse Resistance Education (DARE) officer.

After finding the alleged drug paraphernalia, Ford decided to pat down each occupant of the vehicle, particularly because one of the passengers, Jason Beard, was known to Ford from prior contacts and was considered a possible danger. He said his primary purpose in conducting the pat-downs was to search for weapons but admitted he was aware of the possibility of finding other items based on the presence of drug paraphernalia in the car.

While searching Wonders, one of the passengers, Ford felt a bulge in Wonders' left front jeans pocket. Ford passed over the bulge and completed a full pat-down before returning to the bulge. Ford testified that when he first patted the bulge, it was immediately apparent to him that it was a bag of marijuana in the pocket. Ford returned and touched the pocket while asking Wonders about its contents. When Wonders did not respond, Ford reached in and removed rolling papers and three baggies of marijuana.

Wonders was arrested, and a subsequent search of his person at the jail during booking revealed a plastic bag in his shirt pocket containing white rocks of crack cocaine.

At his preliminary hearing, Wonders challenged several aspects of the search which produced the contraband evidence. Wonders first questioned whether Ford had an articulable suspicion to detain him. He then asserted that Ford did not have a reasonable fear for his safety in order to justify the pat-down searches. Finally, he alleged Ford exceeded the proper scope of a pat-down search by reaching into his pocket after knowing it did not contain a weapon.

Deputy Ford testified at the preliminary hearing and related the events leading up to the pat-down search. He told the court he discovered marijuana in Wonders' jeans pocket, placed him under arrest, and subsequently discovered the rocks of crack cocaine.

During cross-examination, Wonders' counsel questioned Ford about the setting of the search, Ford's prior knowledge of Wonders, and the demeanor of the occupants in an attempt to establish that Ford had no reason to fear for his safety. When briefly asked about the pat-down itself, Ford answered, "[W]hat I did feel in his pants pocket was a bulge, and I did at that time ask Mr. Wonders what was in his pocket, there was no reply, and that's when I did locate the marijuana in his pocket."

Although most of the redirect examination focused on establishing that Ford had reason to be apprehensive of Beard, the State asked Ford whether he had an idea of what the bulge was when he found it. Ford replied, "Initially, I did feel it to be baggies of content." Ford was not questioned further regarding the actual pat-down at the preliminary hearing.

The trial court bound Wonders over on the charges because the evidence clearly indicated he had been in possession of illegal substances. The court further recognized that a search and seizure issue existed, but pointed out that the purpose of the hearing was to determine probable cause, not to resolve every possible search and seizure issue. The court ruled the search and seizure issue should properly be addressed in a motion to suppress and it would be unfair to expect the State to respond to such issues at the preliminary hearing.

Wonders filed a motion to suppress which generally alleged the stop, search, and arrest of his person were...