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State v. Henning

November 30, 2007

STATE OF KANSAS, APPELLANT,
v.
RANDY HENNING, APPELLEE, AND KELLY ZABRISKIE, APPELLEE.



Appeal from Lyon District Court; MERLIN G. WHEELER, judge.

SYLLABUS BY THE COURT

Based on the record and the specific facts in this case, we hold (1) in Kansas, the permissible circumstances, purposes, and scope of a search incident to arrest are controlled by K.S.A. 2006 Supp. 22-2501; (2) when the 2006 Kansas Legislature amended K.S.A. 2006 Supp. 22-2501(c) to read that when a lawful arrest is effected, a law enforcement officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of "(c) Discovering the fruits, instrumentalities, or evidence of a crime," the legislature clearly intended to broaden and expand an officer's statutory authority to search incident to arrest; (3) the Kansas Legislature, by enacting the 2006 amendment in K.S.A. 2006 Supp. 22-2501(c), intended to change the rule established by State v. Anderson, 259 Kan. 16, 22, 910 P.2d 180 (1996), and allow searches incident to arrest to extend to any crime as constitutionally allowed by New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, The opinion of the court was delivered by: Larson, J.

Reversed and remanded.

Before MARQUARDT, P.J., BUSER, J., and LARSON, S.J.

This is the State's appeal from the district court's suppression of evidence seized during the search of a vehicle incident to a lawful arrest on July 6, 2006.

The first impression issue in Kansas in this appeal involves the interpretation of the 2006 amendment in K.S.A. 2006 Supp. 22-2501(c) to allow law enforcement officers making a lawful arrest to reasonably search the person arrested and the area within such person's immediate presence for the purpose of discovering the fruits, instrumentalities, or evidence of a crime rather than the crime.

The facts in this case are not controverted and show the following scenario and proceedings in the cases before us on appeal.

On the morning of July 6, 2006, Deputy Patrick Stevenson was entering a convenience store in Emporia when he noticed Randy Henning walking out of the store. Stevenson knew Henning from a previous incident and remembered Henning's name had been on an outstanding arrest warrant list. Stevenson immediately called dispatch and verified there was an outstanding arrest warrant for Henning for a traffic violation.

Stevenson testified that by the time he verified Henning's outstanding arrest warrant, Henning had entered the front passenger side of a car. Kelly Zabriskie was in the driver's seat of the car. The car was registered to Henning.

Stevenson called to Henning and asked to speak to him. Henning got out of the car, and Stevenson asked Henning for his date of birth. Stevenson relayed this information to dispatch and verified Henning was the person named in the arrest warrant. Stevenson told Henning he was under arrest and handcuffed him.

Stevenson proceeded to search Henning's car. Stevenson testified that he searched Henning's car as a search incident to arrest under K.S.A. 2006 Supp. 22-2501. Stevenson noted that he knew 22-2501 had been amended effective July 1, 2006, to allow him to search for fruits of a crime in a car where an arrestee had been. During his testimony at preliminary hearing, Stevenson indicated that he was not searching for evidence of a particular crime during his search of Henning's car; rather, he was searching for evidence of any crime. During the search of Henning's car, Stevenson discovered a fabric flashlight holder inside the center console. Inside the fabric holder was a syringe and a glass pipe with residue. Later testing detected amphetamine inside the pipe. Although Henning denied that the items were his, Henning told Stevenson that he would say the items belonged to him to get Zabriskie out of trouble. After Stevenson discovered the items inside the car, he placed Zabriskie under arrest for possession of drug paraphernalia.

Henning and Zabriskie were separately charged with possession of amphetamine in violation of K.S.A. 2006 Supp. 65-4160 and possession of drug paraphernalia in violation of K.S.A. 2006 Supp. 65-4152. Both Henning and Zabriskie moved to suppress the evidence seized by Stevenson.

Henning argued that in order to search a car incident to arrest under K.S.A. 2006 Supp. 22-2501(c), an officer must have reasonable grounds to believe that a crime has been committed and that evidence of the crime is in the vehicle. The State conceded that Stevenson did not see any crime being committed other than the fact Henning had an outstanding warrant for his arrest. The State argued the 2006 amendments in K.S.A. 2006 Supp. 22-2501(c) authorized and allowed the type of search Stevenson had performed in this case.

The trial court granted Henning's and Zabriskie's motions to suppress. The trial court held that Stevenson's search went beyond the scope of K.S.A. 2006 Supp. 22-2501. The trial court determined that under the 2006 amendment to 22-2501(c), the legislature intended to broaden the scope of a search to encompass a search for a crime other than that which brought the person into custody but did not intend to encompass a search for any crime. The trial court commented that a reading of K.S.A. 2006 Supp. 22-2501(c) to allow a search when the officer is merely looking for the instrumentalities or fruits of any crime would not meet constitutional standards under the Fourth Amendment to the United States Constitution.

The State appealed the district court's decision in both Henning's and Zabriskie's cases. The appeals were consolidated by our court.

We first consider the State's contention that the search of the vehicle occupied by Henning and Zabriskie was a valid search incident to arrest as specifically allowed by K.S.A. 2006 Supp. 22-2501 and that the evidence seized during the search should not have been suppressed.

The standards of review in appeals of suppression motions are well known and are applicable here.

"In reviewing a district court's decision regarding suppression, [an appellate] court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]" State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).

But, when the material facts to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). The State bears the burden of proof for a suppression motion. It must prove to the trial court the lawfulness of the search and seizure. State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006).

In this case, we have additional questions of statutory interpretation and the ever-present Fourth Amendment issues. In State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003), the language of both the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights was set forth and it was noted the protections thereunder to be free of unlawful searches and seizures are identical under both provisions. See State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993). Mendez further stated:

"It is a well-recognized rule that unreasonable searches and seizures are constitutionally prohibited and '[u]nless a search falls within one of a few exceptions, a warrantless search is per se unreasonable.' State v. Canaan, 265 Kan. 835, Syl. ¶ 1, 964 P.2d 681 (1998). We further said in Canaan that '[t]he exclusionary rule prohibits the admissions of the "fruits" of illegally seized evidence, i.e., any information, object, or testimony uncovered or obtained, directly or indirectly, as a result of the illegally seized evidence or any leads obtained therefrom.' 265 Kan. 835, Syl. ¶ 3." 275 Kan. at 420-21.

One of the recognized exceptions to the search warrant requirement is the contemporaneous search incident to arrest doctrine, which in Kansas is statutorily based. See Mendez, 275 Kan. at 421; State v. Anderson, 259 Kan. 16, 19, 910 P.2d 180 (1996). In our case the State's only argument is that the search of the vehicle was a search incident to a lawful arrest.

As we are taught by State v. Conn, 278 Kan. 387, 391, 99 P.3d 1108 (2004): "In Kansas, the permissible circumstances, purposes, and scope of a search incident to arrest are controlled by statute. [Citation omitted.]" The statute in issue in our case is K.S.A. 2006 Supp. 22-2501(c), as amended by the 2006 Kansas Legislature effective as of July 1, 2006. The applicable change is in subsection (c) which replaces the with a making our Kansas search incident to lawful arrest statute read as follows:

"Sec. 8. K.S.A. 22-2501, as repealed by 2006 Senate Bill No. 366, is hereby revived and amended to read as follows: 22-2501. When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the ...


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