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STATE v. DAMM

March 2, 1990.

STATE OF KANSAS, Appellant,
v.
NORMAN H. DAMM, Appellee.



The opinion of the court was delivered by

This is an appeal by the State from an order of the trial court suppressing evidence, discharging defendant, Norman H. Damm, and dismissing the case. This is not an interlocutory appeal, K.S.A. 22-3603, but an appeal after final judgment, K.S.A. 1989 Supp. 22-3601(a) and K.S.A. 22-3602(b)(1).

The facts are undisputed. On the morning of April 8, 1988, Norman Damm was driving his car when he was stopped by Officer Lewis-Jones of the Lenexa police department. Officer Lewis-Jones stopped the car because the taillights were defective; one light was out, the other brightly lit as if a brake light was on. There was no other reason for the stop.

[246 Kan. 221]

     

  After stopping the car, Officer Lewis-Jones demanded identification from Damm, as well as from his two passengers, David Smidl and Damm's brother David. All three complied and produced their driver's licenses. They were left sitting in the Damm vehicle while Officer Lewis-Jones returned to his police car to do a "routine records check" on each of them. Again, there was no reason for the identification check on the two passengers except they were riding in a vehicle with defective taillights.

  The check on passenger David Smidl disclosed that there was a municipal court warrant outstanding for his arrest for "failure to appear." Officer Lewis-Jones did not know what the municipal court charge against Smidl was; at trial, the State said the warrant was "based on perhaps a traffic violation."

  Officer Lewis-Jones returned to the Damm car and arrested Smidl pursuant to the warrant. He handcuffed Smidl and placed him in the police car. The officer then returned to the car and ordered the brothers out of it. Officer Lewis-Jones then proceeded to search the entire car "incident to Smidl's arrest." There was no other reason for the search. The State concedes there was no probable cause, no consent, and no plain view justification for the search. The major reason advanced by Officer Lewis-Jones for the search was that it was "department policy."

  The search turned up drug paraphernalia and a small supply of cocaine, after which Officer Lewis-Jones arrested Smidl and the Damm brothers for possession of cocaine. The officer forgot to cite Norman Damm for the defective taillights that night, but mailed a citation to him later.

  Defendant filed a motion to suppress evidence. An evidentiary hearing was held before the trial court on September 6, 1988. The parties stipulated that the testimony of Officer Lewis-Jones, given at the preliminary examination, would constitute the evidence on the motion. After hearing the argument of counsel and reviewing the preliminary hearing transcript, the trial court sustained the motion to suppress, discharged the defendant, and released the surety on his bond. The State appeals.

  Under the Fourth and Fourteenth Amendments to the United States Constitution, a search conducted without a warrant issued upon probable cause is "per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions."

[246 Kan. 222]

      Katz v. United States, 389 U.S. 347, 357, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967). Upon the hearing of a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L.Ed.2d 290, 98 S.Ct. 2408 (1978); State v. Schur, 217 Kan. 741, 743, 538 P.2d 689 (1975). An appellate court will uphold a trial court's suppression of evidence if that ruling is supported by substantial competent evidence. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979). The trial court's decision will be upheld even if it is found that the court reached the right result for the wrong reason. Sutter Bros. Constr. Co. v. City of Leavenworth, 238 Kan. 85, 93, 708 P.2d 190 (1985).

  The State argues the search of the Damm vehicle was lawful, relying upon New York v. Belton, 453 U.S. 454, 69 L.Ed.2d 768, 101 S.Ct. 2860, reh. denied 453 U.S. 950 (1981); State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983); State v. White, 230 Kan. 679, 640 P.2d 1231 (1982); and State v. Press, 9 Kan. App. 2d 589, 685 P.2d 887, rev. denied 236 Kan. 877 (1984). The facts of each of these cases make them readily distinguishable from the case at hand.

  Belton involved the stop of a speeding car. The officer asked the driver for his license and the automobile registration. He discovered that none of the occupants owned the vehicle or were related to the owner. Meanwhile, he smelled the odor of burnt marijuana and saw an envelope marked "Supergold" on the floor of the car; he associated the envelope with marijuana. He directed the four occupants to get out of the car and arrested them for possession of marijuana. He then patted them down, picked up the envelope and found marijuana inside, and proceeded to search the passenger compartment of the vehicle. He found cocaine in the pocket of a jacket which was lying on the back seat. The United States Supreme Court found the search constitutionally valid, and laid down the following "bright-line" rule: "[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that ...


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