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In re J.M.E.

July 27, 2007

IN THE MATTER OF J.M.E., A CHILD UNDER THE AGE OF EIGHTEEN.


Appeal from Saline District Court; JOHN E. WECKEL, judge.

SYLLABUS BY THE COURT

1. When reviewing the decision on a motion to suppress evidence this court reviews the factual underpinnings of a district court's decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. The State bears the burden to demonstrate that a challenged search or seizure was lawful.

2. This court does not reweigh evidence, determine witness credibility, or resolve conflicts of evidence.

3. If the material facts underlying the district court's decision are not in dispute, the question of whether evidence was improperly suppressed is a question of law, and this court has unlimited review.

4. Kansas courts have recognized four categories of police-citizen encounters: (1) arrests supported by probable cause; (2) stops made in accordance with Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, The opinion of the court was delivered by: Hill, J.

Reversed and remanded with directions.

Before GREEN, P.J., ELLIOTT and HILL, JJ.

The State seeks our reversal of a district court's order suppressing drug evidence after the court concluded police officers who searched a car had no specific and articulable facts on which to base their search, and thus ruled the officers could not make a search only for safety reasons. We reverse because the record reveals that the officers were engaged in a valid community caretaking function when, after receiving a telephone complaint about a car, they approached it after finding it parked on a dead-end road, at night, its lights switched off, windows fogged, and an unknown number of people inside. When the windows were rolled down and the officers smelled the odor of burnt marijuana coming from the car, they had probable cause to search the vehicle, and a reasonable search and seizure of apparent contraband followed.

Case Background

During the night of October 20, 2005, J.M.E., a minor, and three other minors were parked at the end of the 2800 block of Melanie, a dead-end road in Salina. Officer Sherree York was dispatched to the area because a resident had reported that a white car was parked at the dead end of the road and was "blacked out." At the scene, York found a white, two-door Dodge Avenger without any lights on and no people outside the car. York shined her spotlight on the car and saw several occupants inside. York indicated that at that point either the car engine started or was already running, and the reverse lights came on. Officer York then turned on her patrol car's rear overhead lights so the Avenger would not back into her and the vehicle's occupants would know she was there.

When Officer York approached the car, she saw that the windows were fogged over. She again shined the spotlight on the car and saw movement. The driver, J.M.E., rolled the window down, and York immediately smelled marijuana. York did not recall whether she knocked on the window or said something to J.M.E. in order to make the initial contact, but J.M.E. testified that York tapped on his window. York then asked for J.M.E.'s driver's license and insurance while waiting for the other officers to arrive.

Officers Gary Hanus and Andrew Zeigler were dispatched to York's assistance. York told them that the car smelled of marijuana, and both officers testified that they also smelled marijuana. The occupants of the car were separated and interviewed. Several of the occupants were attempting to eat the raw marijuana.

Officer Hanus asked J.M.E. to step out of the car and advised him of his rights. While doing this, Hanus saw something in J.M.E.'s mouth, but J.M.E. refused to tell the officer what it was. Hanus shined his light in J.M.E.'s mouth and saw that J.M.E. was trying to swallow marijuana. J.M.E. continued to chew and attempted to swallow. Hanus, however, put his hand on J.M.E.'s neck and throat, pushed him up against the glass, and told him to spit the marijuana out. J.M.E. complied. J.M.E. was handcuffed, but before being placed in the patrol car, he consented to a search of the car. Hanus did not question J.M.E. further after the arrest. A search of the car produced marijuana residue, a red butane lighter, a pair of scissors, and a white rolled paper with one burnt end that contained marijuana residue.

J.M.E. was charged with possession of marijuana. He moved to suppress the evidence obtained by officers. The district court granted J.M.E.'s motion. The court ruled that the officers did not have specific ...


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