Review of the judgment of the Court of Appeals in State v. Stowell, No. 96,091, unpublished opinion filed July 20, 2007. Appeal from Reno district court; STEVEN R. BECKER, judge. Judgment of the Court of Appeals reversing the district court on the limited issue subject to our review is affirmed. Judgment of the district court on that issue is reversed, and the case is remanded.
1. The test under the inevitable discovery rule is that if the prosecution establishes by a preponderance of the evidence that the unlawfully obtained evidence ultimately or inevitably would have been discovered by lawful means the evidence is admissible.
2. Under the facts of this case, the inevitable discovery doctrine cannot convert unlawfully obtained evidence into admissible evidence because the prosecution failed to establish that the evidence ultimately or inevitably would have been discovered by lawful means.
The opinion of the court was delivered by: Nuss, J.
The district court denied defendant Kelly Stowell's motion to suppress methamphetamine seized during his traffic stop. A majority of the Court of Appeals panel reversed on three separate grounds in State v. Stowell, No. 96,091, unpublished opinion filed July 20, 2007. The State's petition for review requested that we reverse the Court of Appeals on only one of that court's stated suppression grounds: the inevitable discovery doctrine. We granted review because an earlier panel of the Court of Appeals appears to have reached dissimilar results with similar facts in the inevitable discovery context. See State v. Smith, No. 92,836, unpublished opinion filed October 21, 2005, rev. denied 280 Kan. 990 (2006).
We need not plumb this subject in depth to resolve the split between the two panels, however, simply because we find no record evidence of post-arrest jail inventory search procedures to support the doctrine's application. Accordingly, we hold suppression was proper, affirm the Court of Appeals, reverse the district court, and remand for further proceedings.
Hutchinson Police Officer Josh Orem stopped Kelly Stowell in his truck for a traffic infraction in the early morning of July 23, 2004. Orem smelled the odor of alcohol and conducted field sobriety tests. Officer Mike Robinson arrived during the tests. Orem told Robinson to run a check for a valid license and outstanding warrants, which revealed that Stowell was driving on a suspended license and was the subject of an outstanding warrant for failure to pay child support. The warrant called for a $750 bond.
Stowell was arrested on the warrant; Orem patted him down and removed brass knuckles from his pocket. Orem then put Stowell in the back of his police car parked approximately 15 feet from the truck. Robinson asked Stowell if he wanted Robinson to get his keys from the truck. According to Robinson, Stowell wanted his keys. Although the exact sequence is unclear, at some point Robinson shone his flashlight into Stowell's truck and saw a handgun protruding from under the armrest in the center console. Robinson then opened the door and saw a second handgun in the driver's side door.
Robinson told Orem of the two guns and showed their locations. Orem removed the guns, returned to his police car, and Mirandized Stowell. According to Orem, Stowell agreed to talk. Orem requested consent to retrieve the guns; he also stated that Stowell wanted his wallet from the truck.
According to Orem, because it was about to rain and also because the truck was parked downtown near three bars, Stowell consented to rolling up the windows, locking the doors, and retrieving the keys. Orem found the keys in the ignition and noticed a small black pouch on the key ring. He removed the keys from the ignition and opened the pouch, finding 16 baggies of methamphetamine. Stowell denied that the pouch was his and that he knew anything about the baggies. Orem then searched Stowell's wallet, finding $774, and searched the truck, finding another $6.
Stowell contradicted Orem on several key points. According to Stowell, he told the officers to leave the keys in the truck because his girlfriend would pick it up later and that he did not consent for Orem to enter it to get the guns, wallet, and keys.
Stowell was charged with possession of methamphetamine with intent to sell, possession of methamphetamine without drug tax stamps, criminal use of a weapon, and driving while suspended.
Stowell moved to suppress the physical evidence from the stop, but the district court denied the motion, finding that the methamphetamine inevitably would have been discovered ...