Review of the judgment of the Court of Appeals in 37 Kan. App. 2d 283, 152 P.3d 1249 (2007). Appeal from Shawnee district court; MATTHEW J. DOWD, judge. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
1. When a defendant files a motion to suppress evidence, the State bears the burden of proof to demonstrate that a search or seizure that led to the discovery of the evidence in question was lawful.
2. In reviewing a district court's decision regarding suppression, this 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.
3. Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. Because probable cause does not require evidence of every element of a crime, it must not be confused with proof beyond a reasonable doubt. For this reason, all the information in the officer's possession, fair inferences therefrom, and facts may be taken into consideration that might not be admissible on the issue of guilt.
4. In dealing with probable cause, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act. Probable cause exists where the facts and circumstances within the acting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been or is being committed.
5. A person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments to the United States Constitution protect the legitimate expectations of privacy of persons, not places.
6. Probable cause is not an exact science, but rather is based on the factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act. The facts in this case are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense had been or was being committed.
7. Exigent circumstances exist where the police officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband. In each case, the particular facts must be considered.
8. Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. In its plain error analysis, the appellate court considers three factors: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence is of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors, unless the harmless error tests of both K.S.A. 60-261 (refusal to grant new trial is inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), reh. denied 386 U.S. 987 (conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial), have been met.
9. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.
10. The constitutionality of Kansas' sentencing guidelines is a question of law over which this court has unlimited review.
11. Prior convictions are sentencing factors that need not be included in the complaint or information or proven beyond a reasonable doubt.
The opinion of the court was delivered by: Davis, J.
Ramon I. Fewell was stopped for speeding, detained, and eventually searched by the arresting officer. Based in part upon evidence seized during the search, Fewell was charged with and convicted of possession of cocaine, criminal use of a weapon, possession of drug paraphernalia, and speeding. The Court of Appeals affirmed his convictions, concluding that the trial court properly denied his motion to suppress evidence. State v. Fewell, 37 Kan. App. 2d 283, 152 P.3d 1249 (2007). We granted his petition for review on the suppression of evidence issue as well as other issues and affirm.
On the evening of March 18, 2003, Trooper Mark Engholm observed a Chevrolet Blazer traveling at 80 miles per hour southbound on U.S. Highway 75 in Shawnee County; the posted speed limit on the highway was 70 miles per hour. Trooper Engholm activated his emergency lights and initiated a traffic stop.
After the Blazer and the patrol car pulled on to the shoulder, Trooper Engholm approached the vehicle on the passenger side. As he approached the Blazer, he noticed a strong odor of burnt marijuana emanating from the vehicle's passenger compartment.
Once Engholm was at the passenger-side window, he informed the driver, Fewell, and the passenger, Charles Brown, of the reason for the traffic stop. He asked Fewell to exit the vehicle and step to the rear of the Blazer; he also asked Fewell about the smell of burnt marijuana. Fewell initially stated that he did not detect any such odor; however, he later stated that Brown had been smoking a "blunt." Engholm knew from his experience that a blunt was a hollowed-out cigar that had been filled with marijuana.
Trooper Engholm instructed Fewell to sit on the back bumper of the Blazer while the trooper spoke with Brown. Brown initially denied having marijuana, but he eventually told Engholm that he had previously had marijuana but that it was all gone because he had smoked it. The trooper then searched Brown and found three bags of marijuana and $1,000 in cash. Engholm subsequently arrested Brown and placed him in the passenger seat of the patrol car.
Once Brown was in the patrol car, Trooper Engholm returned to Fewell. Fewell asked Engholm if he could leave because he had to go pick up Brown's girlfriend. Engholm reminded Fewell that he still had Fewell's driver's license and asked Fewell whether he had "'anything'" on him. Fewell responded that he did not.
Engholm then began a pat-down search of Fewell's person. Engholm found a switchblade knife in the right front pocket of Fewell's pants and a bent spoon and glass pipe in his left front pocket. The trooper asked why Fewell carried these items, and Fewell responded that he "dabbles in cocaine." Engholm then handcuffed Fewell and waited until another officer arrived at the scene before continuing his search of Fewell. After back-up arrived, Engholm finished his search wearing Kevlar gloves; this search revealed a small bag of crack cocaine clenched in Fewell's right hand.
Fewell was charged with and convicted of possession of cocaine, criminal use of a weapon, possession of drug paraphernalia, and speeding. He filed a motion to suppress the cocaine, knife, and glass pipe, claiming that these objects were the fruits of an illegal search. After hearing evidence, the court denied his motion, finding that the odor of the marijuana provided probable cause to search the vehicle and its occupants and that the lack of a warrant was justified by exigent circumstances. In particular, the court relied upon this court's holding in State v. MacDonald, 253 Kan. 320, 856 P.2d 116 (1993) (odor of marijuana provided probable cause to search vehicle), finding that "it would be ludicrous to think that you could search the car and not the people" if an officer smelled a strong odor of marijuana emanating from the passenger compartment of the vehicle.
Fewell appealed, claiming (1) the denial of his suppression motion was error; (2) prosecutorial misconduct occurred requiring reversal of his convictions; and (3) cumulative error. In addition, Fewell claimed that his rights under the Sixth Amendment to the United States Constitution were violated by using his criminal history to enhance the severity level of his conviction at sentencing.
A divided panel of the Court of Appeals affirmed Fewell's convictions and sentences, concluding that the district court had properly denied the suppression motion and that the other claims raised in Fewell's appeal were without merit. Fewell, 37 Kan. App. 2d at 284, 294. Judge Greene dissented in part, finding that the evidence seized by Engholm (the knife, the pipe, and the cocaine) was the result of an illegal search and thus should have been suppressed. 37 Kan. App. 2d at 294-98 (Greene, J., dissenting).
The Fewell majority concluded, based on MacDonald and also on State v. Thomas, 28 Kan. App. 2d 70, 12 P.3d 420 (2000), rev. denied 270 Kan. 903 (2001) (upholding the admission of drug-related evidence obtained by way of a strip search of a detainee at a detention facility when the detainee smelled of marijuana), that the odor of marijuana in Fewell's vehicle provided Trooper Engholm with probable cause to search the occupants of the vehicle. Judge Hill, writing for the majority, explained:
"First, the smell of marijuana gave the trooper probable cause to further detain the vehicle, including Fewell as the driver of that vehicle. Second, the odor created the officer's suspicion that marijuana use had been committed and that such evidence might be found on the driver, especially since the odor was burnt, compared to fresh, and that Fewell admitted that his passenger had smoked a blunt. Here, the trooper was experienced in detecting marijuana odor through his 11 years of law enforcement experience. Consequently, under the circumstances of this case, there was probable cause to search the driver based on the detection of burnt marijuana odor emanating from the vehicle." 37 Kan. App. 2d at 288.
The majority further concluded that exigent circumstances existed that justified the warrantless search of Fewell's person. The court explained that Trooper Engholm "was alone at the stop" and that "if the trooper had sought a warrant, there would have been probable loss or destruction of evidence." 37 Kan. App. 2d at 289.
Judge Greene in dissent acknowledged that "the undisputed facts of this appeal present a close and difficult question" but noted that the continuing investigation resulted in "lessening any suspicion that Fewell was involved in criminal activity" with no additional qualitative or quantitative evidence of his involvement. 37 Kan. App. 2d at 294, 297 (Greene, J., dissenting). Because Judge Greene would hold that the search was not supported by probable cause, he explained that he would not reach an analysis of whether the warrantless search was justified by exigent circumstances. 37 Kan. App. 2d at 297 (Greene, J., dissenting).
Motion to Suppress Evidence
In his petition for review, Fewell contends that this court's decision in MacDonald was explicitly limited to the facts of that case, so the lower courts' reliance on that case and an extension of its holding was improper. Fewell points out that no published Kansas case to date has held that odor of marijuana alone provides probable cause to search the occupants of a vehicle, and he argues that the facts in this case do not support such a finding. We emphasize that the issue in this case is not whether the odor of burnt marijuana alone provided probable cause to search the defendant, but rather whether under the totality of circumstances probable cause existed for the search of defendant's person.
When a defendant files a motion to suppress evidence, the State bears the burden of proof to demonstrate that the search or seizure that led to the discovery of the evidence in question was lawful. See State v. Ibarra, 282 Kan. 530, 553, 147 P.3d 842 (2006).
"In reviewing a district court's decision regarding suppression, this 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).
Neither party in this case challenges the facts surrounding the search at issue. Because the facts underlying the district court's denial of Fewell's motion to suppress are undisputed, the question of whether the evidence obtained through that search should be suppressed 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 Fourth Amendment to the United States Constitution, made applicable to the States by way of the Fourteenth Amendment, provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Kansas Constitution Bill of Rights, § 15 similarly states that "[t]he right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate." This court has emphasized that these two constitutional provisions provide identical protection. See State v. Anderson, 281 Kan. 896, 901, 136 P.3d 406 (2006).
Searches conducted without a warrant are per se unreasonable and, thus, violate these provisions of our federal and state Constitutions, subject only to a few specific, well-defined exceptions. State v. Platten, 225 Kan. 764, Syl. ¶ 3, 594 P.2d 201 (1979). The exceptions to the warrant requirement generally recognized in this state are: "consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances . . . ; the emergency doctrine; inventory searches; plain view; and administrative searches of closely regulated businesses." State v. Conn, 278 Kan. 387, 390-91, 99 P.3d 1108 (2004); see State v. Boyd, 275 Kan. 271, 273-74, 64 P.3d 419 (2003).
The district court and Court of Appeals majority in this case found that Engholm's warrantless search of Fewell in this case was justified on the basis of probable cause to search accompanied by exigent circumstances. This court has explained that in order for this exception to the warrant requirement to justify a warrantless search, the State first must demonstrate probable cause to search and then, if probable cause exists, must demonstrate that the search was conducted under some exigency. See Ibarra, 282 Kan. at 553.
We consider the totality of the circumstances to determine whether Engholm had probable cause to search Fewell. See Illinois v. Gates, 462 U.S. 213, 230-31, 76 L.Ed. 2d 527, 103 S.Ct. 2317, reh. denied 463 U.S. 1237 (1983). The Court of Appeals majority concluded that probable cause existed in this case; Judge Greene, in his dissent, disagreed with that conclusion. Only if this court finds that the search was supported by probable cause should it consider the question of whether exigent circumstances justified the failure to obtain a warrant prior to conducting the search.
In State v. Hays, 221 Kan. 126, Syl. ¶ 1, 557 P.2d 1275 (1976), this court defined the probable cause necessary to justify a warrantless search as
"a reasonable ground for belief of guilt; and this means less than evidence which would justify condemnation or conviction; probable cause exists where the facts and circumstances within the knowledge of the officer making the arrest or search, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. [Citation omitted.]"
Put another way, "'[p]robable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime.'" State v. Aikins, 261 Kan. 346, 355, 932 P.2d 408 (1997) (quoting State v. Grissom, 251 Kan. 851, Syl. ¶ 22, 840 P.2d 1142 ). "Because probable cause does not require evidence of every element of a crime, it must not be confused with proof beyond a reasonable doubt." State v. Abbott, 277 Kan. 161, 164, 83 P.3d 794 (2004) (citing Draper v. United States, 358 U.S. 307, 311-12, 3 L.Ed. 2d 327, 79 S.Ct. 329 ; Aikins, 261 Kan. at 355). For this reason, "'all the information in the officer's possession, fair inferences therefrom, and facts may be taken into consideration that might not be admissible on the issue of guilt.' [Citation omitted.]" State v. Payne, 273 Kan. 466, 474, 44 P.3d 419 (2002).
The United States Supreme Court has further clarified:
"'In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' [Citation omitted.] Probable cause exists where 'the facts and circumstances within [the acting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. [Citation omitted.]" Draper, 358 U.S. at 313.
In MacDonald, this court held that an experienced police officer's recognition of the odor of marijuana emanating from the passenger compartment of a vehicle provides probable cause for a warrantless search of the vehicle. 253 Kan. at 324-25. The court explained its reasoning as follows:
"The trooper had probable cause to further detain the vehicle when he smelled the marijuana odor. In fact, the trial court found that Heim had reasonable suspicion, based on the odor, that there was marijuana in the car. The odor created the needed particularized suspicion of criminal activity. See Annot., Odor of Narcotics as Providing Probable Cause for Warrantless Search, 5 A.L.R. 4th 681, 685 ('it frequently has been held that detection of the odor of fresh marijuana or marijuana smoke, standing alone, provided probable cause for searches of motor vehicles following stops by immigration or customs officers and stops for investigation of possible traffic or equipment violations'). Under the circumstances, it was reasonable for the trooper to act upon his suspicion. The opposite conclusion would require the officer to 'look the other way' and not pursue evidence which signals a crime.
"A majority of courts have found that marijuana odor detected by an experienced law enforcement officer can provide sufficient probable cause to support a warrantless search. U.S. v. Padron, 657 F. Supp. 840 (D. Del. 1987), aff'd without op. 857 F.2d 1466 (3rd Cir.), cert. denied 488 U.S. 974 (1988).
"Heim had probable cause to search the car. The marijuana odor provided the basis for the suspicion that a crime had been committed and that evidence in connection with the crime was located within the automobile." 253 Kan. at 324-25.
In Thomas, which in addition to MacDonald was the basis for the majority opinion of the Court of Appeals in this case, a police officer was transporting the defendant to jail when the officer noticed a "strong odor of marijuana" coming from him. 28 Kan. App. 2d at 71. The officer advised the jail personnel, who conducted a strip search of the defendant before placing him in the detention facility. This strip search revealed a concealed baggie containing cocaine.
The Thomas court affirmed the district court's denial of the defendant's motion to suppress. Relying on MacDonald, the court found "[u]nder the unique facts" before it that "the odor of marijuana on a person in custody, coupled with the detention facility's recognized security interest in preventing the introduction of such contraband within its walls, is sufficient to establish probable cause to strip search the person in question." Thomas, 28 Kan. App. 2d at 74. But see State v. Huff, 278 Kan. 214, 220-21, 92 P.3d 604 (2004) (odor of ...