Appeal from Johnson District Court; PETER V. RUDDICK, judge.
1. Any warrantless search is unreasonable, and so violates the Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights unless it falls within an exception recognized in Kansas cases.
2. The nine warrantless search exceptions Kansas courts recognize are consent, a search incident to a lawful arrest, stop and frisk (as explained by 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 RULON, C.J., ELLIOTT and HILL, JJ.
A police officer impounded Reginald T. Warren's car but did not arrest him. Before leaving the scene Warren asked to get some items from the car. Unsure of his safety, the officer searched the car first. A police officer may legally search an automobile for his own protection without a search warrant if the search is limited to those areas in which a weapon may be hidden. But here, the officer made an extensive search of the passenger compartment and trunk. Under the front seat of the car the officer found a day planner which he examined thoroughly and noted it may belong to someone other than Warren. In the backseat and trunk, he found stereo equipment. The officer reported these discoveries and, later, officers from a different city got a search warrant and recovered stolen property from the impounded car. The evidence from the car led to Warren's convictions for burglary, theft, and criminal damage to property. We hold the first search made by the officer impounding the car was not reasonable because it exceeded the area the officer needed to search for his protection. We reverse and remand.
We first review some general principles of the law of search and seizure. Following that, we examine the actions of the police officer and the defendant. Taking all of that into account, we decide the first search was unreasonable. We need not address other matters raised in the appeal since we are remanding for a new trial.
The law lets an officer search for weapons for his or her protection.
The Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights prohibit unreasonable governmental searches and seizures. Any warrantless search is unreasonable unless it falls within an exception recognized in Kansas cases. See State v. Ibarra, 282 Kan. 530, 543, 147 P.3d 842 (2006). Currently, Kansas courts recognize nine exceptions: (1) consent; (2) search incident to lawful arrest; (3) stop and frisk (as explained by Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968), and investigatory stops, K.S.A. 22-2402; State v. Moore, 283 Kan. 344, 154 P.3d 1 (2007) (traffic stops); (4) probable cause accompanied by exigent circumstances; (5) emergency doctrine; (6) inventory searches; (7) plain view; (8) administrative searches of closely regulated businesses; and (9) plain feel. See State v. Rupnick, 280 Kan. 720, Syl. ¶ 2, 125 P.3d 541 (2005). Obviously, we focus on the stop and frisk or Terry exception in this case.
The Terry exception was the focus in Michigan v. Long, 463 U.S. 1032, 77 L.Ed. 2d 1201, 103 S.Ct. 3469 (1983), where the United States Supreme Court stated that the "protection of police and others can justify protective [automobile] searches when police have a reasonable belief the suspect poses a danger." 463 U.S. at 1049. The Terry search must be conducted within the passenger compartment of the automobile and be "limited to those areas in which a weapon may be placed or hidden." Long, 463 U.S. at 1049.
But the preservation of evidence is not a permissible purpose of a Terry search of an automobile. See State v. Epperson, 237 Kan. 707, 715, 703 P.2d 761 (1985).
Warren raises the issue of whether the officer's search of the car exceeded the permissible scope of a search for weapons. The State argues that Warren is raising this issue for the first time on appeal. It is true that issues--even constitutional issues--not raised before the trial court cannot be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). But there are three exceptions to the general rule, according to State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005). First, the newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case. Second, consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights. Third, the district court is right for the wrong reason. We will continue and address this issue under the first two exceptions because there are no disputed facts, and consideration of the issue is necessary to prevent the denial of fundamental rights.
The first search of the automobile was too extensive.
On January 5, 2003, Roeland Park Police Officer Mike Weaver stopped a car for speeding on a residential street. Reginald T. Warren was the driver. At some point Warren got out of the car and stood at its rear bumper. The record is not clear whether Warren freely decided to do this or whether the officer ordered ...