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.
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."
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 ...