State v. Wood

• Decision Date: 14 July 1966
• Docket Number: No. 43155,43155
• Citation: 416 P.2d 729,197 Kan. 241
• Parties: STATE of Kansas, Appellee, v. William Nay WOOD, Appellant.
• Court: Kansas Supreme Court

Page 729

416 P.2d 729

197 Kan. 241

STATE of Kansas, Appellee, v. William Nay WOOD, Appellant.

No. 43155.

Supreme Court of Kansas.

July 14, 1966.

Rehearing Denied Sept. 1, 1966.

Syllabus by the Court

1. The fourth amendment to the United States Constitution protects the individual only from 'unreasonable' searches and seizures; the question of reasonableness of a search and seizure must be resolved from the facts and circumstances of each particular case.

2. To meet the test of reasonableness, a search and seizure without a warrant may be incident to a lawful arrest if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. The right to make a contemporaneous search extends to things under the accused's control and, depending on the circumstances, to the place where he is arrested.

3. The 'place of arrest' in cases involving a search of an automobile over which an accused has immediate control at the time of arrest has reference to the vehicle itself rather than its geographical location.

4. The admission of evidence secured by an unreasonable search and seizure, which was cumulative in nature, and did not result in prejudice to or affect the substantial rights of the defendant, is not reversible error.

5. The record is examined in a reinstated criminal appeal, and for the reasons more fully stated in the opinion, it is held: The trial court did not err in (1) admitting evidence challenged as being obtained by an unreasonable search and seizure; (2) overruling defendant's demurrer to the evidence and motion for directed verdict; and (3) overruling defendant's motion for new trial.

Loyd H. Phillips, Great Bend, argued the cause and was on the briefs for appellant.

Robert L. Bates, Asst. County Atty., argued the cause, and Robert C. Londerholm, Atty. Gen., and Brock R. McPherson, County Atty., were with him on the briefs, for appellee.

O'CONNOR, Justice:

This is a criminal action in which a judgment of conviction and sentence was originally appealed from by the defendant pro se and affirmed in State v. Wood, 190 Kan. 778, 378 P.2d 536. Since the defendant was previously denied counsel, we have permitted the appeal to be reinstated, and Mr. Loyd Phillips, defendant's counsel at his preliminary hearing and trial, has been appointed.

The facts, as disclosed by the state's evidence, were detailed in the original opinion and, except where amplification is necessary, will not be repeated.

Defendant now raises three points: (1) the trial court committed prejudicial error by admitting evidence seized by police officers in an unreasonable search and seizure conducted in violaton of the defendant's rights guaranteed by the fourth and fourteenth amendments to the Constitution of the United States; (2) the trial court committed prejudicial error in failing to sustain defendant's demurrer to the evidence and motion for directed verdict because there was insufficient evidence to support a verdict of guilty as to each of the five counts on which he was convicted and sentenced; and (3) the trial court committed error in overruling defendant's motion for new trial.

Defendant's first point was asserted in his original appeal and involves the admission into evidence, over objection, of state's exhibits 1, 2 and 3, Dr. Pepper Bottling Company checks bearing numbers within the stolen series, which were found in the search of the automobile driven by defendant at the time of his arrest. His argument then was focused on the unreasonableness of his arrest rather than the search not being incidental thereto. In holding the arrest was lawful, this court, speaking through Mr. Justice Schroeder, said:

'On the record here presented (consisting of a complete transcript supplied by the appellant) we hold the information communicated to Sheriff Cline through a law enforcement agency from Ellinwood was sufficient to warrant a prudent man in believing that felonious acts had been committed, and that there were reasonable grounds to believe the appellant committed such crimes.

'On the record presented we further hold the arrest of the appellant was accomplished when the sheriff stopped the subject vehicle and gave directions to the appellant to stay within the vicinity of the automobile and to keep his hands where the sheriff could see them. This was prior to a search of the appellant or the subject vehicle which was under his control. * * *' (p. 789, 378 P.2d p. 544)

Defendant, through his counsel, now contends that the search of the automobile by Trooper Murphy, approximately twenty minutes following his arrest and after the vehicle had been moved to the Rice county jail, was too remote in time and place to constitute a search incidental to a lawful arrest. We touched upon this matter in our prior opinion by stating:

'While a search of an automobile might be expected to take place when and where the arrest occurs, there seems to be no harm in first removing the automobile to the station where it can be more thoroughly and accurately seached, even though some time must elapse between the arrest and the search.

'We hold under the facts and circumstances presented by the record herein the search of the appellant and the automobile under his control was incident to a lawful arrest and, therefore, reasonable. The seizure of the stolen checks found in the course of the search under these circumstances was proper.' (p. 790, 378 P.2d p. 545.)

Defendant no longer questions the validity of his arrest but seeks reversal of our prior decision on the point in light of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, decided March 23, 1964.

In Preston the defendant and three others were convicted in the United States District Court on a charge of conspiracy to rob a federally insured bank. The conviction was based to some extent upon evidence obtained in the search of a motor vehicle. The evidence disclosed that the police received a telephone complaint at three o'clock one morning that 'three suspicious men, acting suspiciously' had been seated in a motorcar parked in the business district since ten o'clock the evening before. The police went to the place where the car was parked and questioned the men, who gave evasive and unsatisfactory answers about why they were there at that time of night. They admitted they were unemployed, and one of the men said he had bought the car the day before, but he could not produce any title. The sum total of the assets on their person amounted to only twenty-five cents. The officers arrested the men for vagrancy, searched them for weapons, and took them to police headquarters. The car was not searched at the time of the arrest but was driven by an officer to the police station from which it was then towed to a garage. Soon after the men had been booked several officers went to the garage, and upon searching the automobile, found two loaded revolvers in the glove compartment. The trunk was locked and the officers returned to the station. Subsequently a detective directed one of the officers to go back and try to gain entry to the trunk. This was accomplished, and the contents of the trunk disclosed the presence of caps, women's stockings (one with mouth and eye holes), rope, pillow slips, an illegally manufactured license plate equipped to be snapped over another plate, and other items. These articles were admitted into evidence over timely objections. The Supreme Court, without deciding the question of the validity of the arrest, held that the search was too reomote in time or place to have been made as incidental to the arrest, and, therefore, concluded that the search of the car, without a warrant, failed to meet the test of reasonableness under the fourth amendment. In the course of its opinion the Court stated:

'* * * Our cases make it clear that searches of motorcars must meet the test of reasonableness under the Fourth Amendment before evidence obtained as a result of such searches is admissible. E. g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (39 A.L.R. 790) (1925); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Common sense dictates, of course, that questions involving searches of motorcars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable search of a house may be reasonable in the case of a motorcar. See Carroll v. United States, supra, 267 U.S., at 153, 45 S.ct. (280) at 285, 69 L.Ed. 543. But even in the case of motorcars, the test still is, was the search unreasonable. * * *' (376 U.S. pp. 366-367, 84 S.Ct. p. 883.)

A careful reading of the Preston decision does not lead us to the conclusion that our prior observation on the precise point was erroneous.

In United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, cited in the Preston opinion, it was stated:

'* * * The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. It is not disputed that there may be reasonable searches, incident to an arrest, without a search warrant. * * * The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances-the total atmosphere of the case. * * *' (pp. 65-66, 70 S.Ct. p. 435)

To meet the test of reasonableness, a search may be incident to an arrest if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. (Stoner v. State of California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856, reh. den. 377 U.S. 940, 84 S.Ct. 1330, 12 L.Ed.2d 303 (decided on the same date as Preston).) The right to make a contemporaneous search without a search warrant extends to things under the accused's immediate control (Carroll v. United...