Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge.
SYLLABUS BY THE COURT 1. Standards for appellate review of rulings on motions to suppress are stated and applied. 2. When executing a search warrant, law enforcement officers have the constitutional authority to detain persons on the premises as the officers look for items in the warrant. 3. If officers executing a search warrant have a reasonable suspicion a person on the premises to be searched may be armed and pose a threat to their safety, they may conduct a pat-down search of that person for weapons. 4. Probable cause to search is not interchangeable with probable cause to arrest in the sense that facts supporting a search warrant for a particular place do not necessarily establish criminal conduct on the part of someone with a possessory interest in that place or someone merely present there when the search is carried out. A search warrant alone is not a basis to arrest an individual for a criminal offense. 5. The detention of a person found on the premises subject to a search warrant is akin to a Terry stop in character. It can be no more intrusive or lengthy than necessary to accomplish the officers' purpose in safely searching the premises without undue interference from the persons present. 6. The rule permitting the detention of a person on the premises subject to a search warrant is one of necessity and imposes in a limited way on the freedom of that individual only because of his or her presence in a particular place at a particular time and not because of any specific action or behavior arousing the suspicion of law enforcement officers. The detention becomes constitutionally reasonable because it is attendant to the search of a particular place based on a judicially issued warrant-a proper exercise of government authority expressly recognized in the Fourth Amendment-and has been deemed necessary to accomplish that search. But given that purpose, the imposition necessarily must be a carefully limited one to satisfy the constitutional requirement of reasonableness. 7. The inevitable discovery doctrine permits the admission of otherwise unconstitutionally seized evidence if law enforcement officers eventually would have found that evidence without violating the Fourth Amendment. The means of inevitable discovery must be independent of the police conduct tainting the evidence in the first instance. 8. Illegal drugs found in the common area of a residence may not, without more, be attributed to a guest or nonresident. 9. The statute criminalizing obstruction of a law enforcement officer applies when an officer executes a search warrant. 10. An individual need not physically oppose a law enforcement officer, in the sense of committing a civil or criminal battery, to be guilty of obstruction of a law enforcement officer. Rather, the individual must in some material way oppose or impede the officer in carrying out an official duty. 11. The subjective intent of a law enforcement officer is irrelevant in determining whether that officer's actions violate the Fourth Amendment. What matters is not the officer's state of mind but the objective effect of his or her actions. 12. Under the facts of this case, the search of the defendant's person did not violate the Fourth Amendment when an objectively reasonable law enforcement officer would have concluded the circumstances demonstrated probable cause to arrest the defendant for obstruction even though the stated grounds for the arrest were legally improper.
The opinion of the court was delivered by: Atcheson, J.:
Before ATCHESON, P.J., BUSER and STANDRIDGE, JJ.
Defendant Isaac Beltran appeals the ruling of the Reno County District Court denying his motion to suppress cocaine and money a law enforcement officer discovered when he stuck his hand in Beltran's pocket during the execution of a search warrant at a house Beltran happened to be visiting. We affirm the district court but decline to do so on its determination the officer had probable cause to search Beltran or its alternative rationale based on inevitable discovery. The simple facts of this case filtered through the United States Supreme Court's established Fourth Amendment jurisprudence, most notably Devenpeck v. Alford, 543 U.S. 146, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004), lead to the paradoxical conclusion that although the officer expressly disclaimed any intent to arrest Beltran before the search, an objectively reasonable officer would have had probable cause to arrest Beltran for obstruction, and the search would have been constitutionally acceptable as an incident of that justifiable, if theoretical, arrest. Because search and seizure analysis is driven by objective reasonableness rather than subjective intent, as Devenpeck makes clear, the search comported with the Fourth Amendment to the United States Constitution, so the district court reached the right result.
FACTUAL BACKGROUND AND CASE HISTORY
In the late afternoon on December 29, 2010, Reno County Sheriff's Deputy Shawn McClay participated in the search of a residence in South Hutchinson. The law enforcement team had gotten a search warrant to look for marijuana, cocaine, and evidence indicative of drug trafficking at the house. Neither the search warrant nor the underlying affidavit appears in the record on appeal. Only McClay testified at the hearing on Beltran's motion to suppress.
Beltran had no particular connection to the house-he did not own it, rent it, or live there. But he happened to be there when the officers arrived to search. McClay testified the team had identified suspects associated with drug trafficking at the house. Beltran was not among those persons either.
McClay knocked on the front door of the house and identified himself as a law enforcement officer. He also displayed a badge and wore clothing indicating he was a sheriff's deputy. As he approached the door, McClay saw a person he later identified as Beltran. Nobody responded to the door. After waiting about 20 seconds, McClay tried the knob and opened the door. He entered and immediately confronted Beltran. Beltran had not been alone in the house. Other occupants attempted to leave through the back door.
According to McClay, Beltran either put his left hand into the left front pocket of his pants or already had his hand there, and he then began to walk away toward the kitchen. McClay ordered Beltran to stop and apparently told him to take his hand out of his pocket. Beltran did not comply and continued walking toward the kitchen. From the testimony, it is not clear whether McClay repeated those commands. But Beltran plainly ignored them and continued to move away from McClay.
In his words, McClay then "made contact with" Beltran. Again, the testimony is not especially detailed on the point. McClay apparently grabbed Beltran's right hand and then pulled his left hand out of the pant pocket. While holding both of Beltran's hands in his right hand, McClay reached into the left front pocket of Beltran's pants and extracted two plastic bags containing what turned out to be cocaine and a third bag with $221 in it. McClay testified that he believed Beltran might have had a weapon or evidence in his pocket. On cross-examination, McClay agreed he had not placed Beltran under arrest at that point and had not seen him commit a crime.
During the search of the house, after McClay halted Beltran, officers found marijuana in the living room and a bedroom.
Beltran filed a motion to suppress the cocaine and money taken from his pants. The district court denied the motion. In its bench ruling, the district court characterized the question as a close one and concluded McClay had probable cause to search Beltran when he ignored the commands to take his hand out of his pocket and to stop moving away. The district court also determined McClay would have inevitably discovered the contraband in Beltran's pocket because the marijuana found in the house solidified the probable cause to search Beltran.
Beltran later went to trial on stipulated facts, and the district court convicted him of possession of cocaine, a felony, in violation of K.S.A. 2010 Supp. 21-36a06. Beltran had no other adult convictions and no juvenile adjudications affecting his criminal history. The district court imposed a standard guidelines sentence of imprisonment for 11 months and followed the statutory presumption by placing Beltran on probation for 18 months. Beltran has timely appealed and asserts the denial of the motion to suppress as the only issue.
Fourth Amendment Principles and Detention of Persons During Execution of Search Warrants
In reviewing a district court's ruling on a motion to suppress, an appellate court applies a bifurcated standard. The appellate court accepts the factual findings of the district court if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); accord State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008) (allocation of burden; quantum of evidence); Thompson, 284 Kan. at 772 (allocation of burden). Here, the facts were effectively undisputed, and the district court accepted McClay's rendition of the events. What remains-the application of those facts to the governing legal principles-is a question of law.
By its express language, the Fourth Amendment guarantees "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." Absent a warrant from a judge, a government agent's search violates the Fourth Amendment unless the circumstances fit within a recognized exception to the warrant requirement. Kentucky v. King, 563 U.S. ___, 131 S. Ct. 1849, 1858, 179 L. Ed. 2d 865 (2011) ("[W]arrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement."); Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) ("[W]arrantless searche[s] . . . 'are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.'" [quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)]). Here, the officers did not have a warrant authorizing them to search Beltran. So McClay's search must fit within a recognized exception to be reasonable under the Fourth Amendment. We, therefore, look at possible bases for a warrantless search of Beltran.
Armed with a search warrant for the house, McClay had the constitutional authority to detain Beltran as the officers looked through the place for contraband and evidence related to drug trafficking. Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981) ("[F]or Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted."). The authority of law enforcement officers to seize persons under Summers extends to anyone on the premises to be searched even if the individual has no ownership or possessory interest in the premises. See Bailey v. United States, 568 U.S. ___, 133 S. Ct. 1031, 1043-45, ___ L. Ed. 2d ___ (February 19, 2013) (Scalia, J., concurring); United States v. Sanchez, 555 F.3d 910, 916-19 (10th Cir. 2009).
But the search warrant did not permit law enforcement officers to conduct a full search of Beltran simply because he was on the premises. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979); State v. Vandiver, 257 Kan. 53, Syl. ¶ 2, 891 P.2d 350 (1995). In Ybarra, the Court recognized that "a search or seizure of a person must be supported by probable cause particularized with respect to that person." 444 U.S. at 91. In that case, law enforcement officers had obtained a warrant to search a tavern and a particular bartender for narcotics. Ybarra was a customer apparently looking to get a drink at the bar when the warrant was executed. He had no other or greater connection to the establishment. Accordingly, the officers lacked probable cause to search him and could not overcome that constitutional deficiency simply because "coincidentally there exist[ed] probable cause to search or seize another or to search the premises where the person may happen to be." 444 U.S. at 91. The Court, however, indicated that if the officers had a reasonable suspicion Ybarra were armed and posed a threat, they could have, consistent with Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), conducted a limited pat-down search of him for weapons. 444 U.S. at 92-93; see Arizona v. Johnson, 555 U.S. 323, 326-27, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009) (investigatory Terry stop may entail frisk or pat-down for weapons if officer reasonably suspects individual may be armed). The Kansas Supreme Court has embraced these principles. See Vandiver, 257 Kan. 53, Syl. ¶¶ 1-3. And they are essentially codified in K.S.A. 22-2509.
In an investigatory detention or Terry stop, law enforcement officers may halt and briefly question a person if they have a reasonable suspicion that, based on articulable facts, the individual has just committed, is committing, or may be about to commit a crime. See Johnson, 555 U.S. at 326-27; Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); Terry, 392 U.S. at 21-23, 30. The suspicion of criminal involvement must be grounded in fact-based conclusions and not mere hunches, but an officer may rely on training and experience to deduce nefarious implications from conduct those outside the law enforcement field might view as entirely innocuous. See Terry, 392 U.S. at 22-23, 27; State v. Martinez, 296 Kan. 482, Syl. ¶ 4, 293 P.3d 718 (2013) (district court erred in finding that an experienced officer with a hunch possessed a reasonable suspicion of wrongdoing); accord Brown v. Texas, 443 U.S. 47, 52 n.2, 99 S. Ct. 2627, 61 L. Ed. 2d 357 (1979).During a Terry stop, an officer may conduct a pat-down search for weapons if the particular circumstances also suggest the individual may be armed and pose a threat. Johnson, 555 U.S. at 326-27 (investigatory Terry stop may entail frisk or pat-down search for weapons if officer reasonably suspects individual may be armed) Terry, 392 U.S. at 27, 29-30; State v. White, 44 Kan. App. 2d 960, 970-71, 241 P.3d 951 (2010).
In conducting a constitutionally acceptable pat-down search, a law enforcement officer is confined to "patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault." Sibron v. New York, 392 U.S. 40, 65, 88 S. Ct. 1889, 20 L. Ed. 2d 917(1968); White, 44 Kan. App. 2d at 964. Here, McClay exceeded the scope of a lawful pat-down when he reached into Beltran's pocket. Sibron,392 U.S. at 65; White, 44 Kan. App. 2d at 970-71. His search of Beltran, if based on a reasonable suspicion, violated the Fourth Amendment. The district court, however, concluded McClay had probable cause to search Beltran and, therefore, could go beyond a pat-down for weapons. The district court erred in its conclusion.
Probable cause to search or seize imposes a higher threshold than reasonable suspicion. In the context of an arrest or seizure of an individual, probable cause requires an officer to have knowledge of facts that would lead a reasonably cautious person to believe a crime had been committed and the suspect committed it. Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979) ("This Court has repeatedlyexplained that 'probable cause' to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, the suspect has committed, is committing, or is about to commit an offense."); Dunaway v. New York, 442 U.S. 200, 208 n.9, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); see Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 20-21, 290 P.3d 555 (2012). Probable cause for a search warrant requires that government agents possess specific facts leading a reasonable person to conclude evidence of a crime may be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (search warrant may issue when the supporting affidavit establishes "a fair probability that contraband or evidence of a crime will be found in a particular place"); State v. Bottom, 40 Kan. App. 2d 155, 161, 190 P.3d 283 (2008), rev. denied 287 Kan. 766 (2009). Those standards share the common requirements that a reasonable person be persuaded by particularized facts to believe the determinative proposition-either that the suspect committed a crime or that evidence of a crime may be found in a specific location. But probable cause to search is not interchangeable with probable cause to arrest in the sense that facts supporting a search warrant for a particular place do not necessarily establish criminal conduct on the part of someone with a possessory interest in that place or someone merely present there when the search is carried out. A search warrant alone is not a basis to arrest an individual for a criminal offense. See Zurcher v. Stanford Daily, 436 U.S. 547, 556 & n.6, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978) (pointing out differing legal implications of probable cause supporting a search warrant and probable cause permitting an arrest).
If, however, law enforcement officers have probable cause to arrest a person, they may make a full search of the individual as part of that process. Gant, 556 U.S. at 339; see Thompson, 284 Kan. 763, Syl. ¶ 11. Probable cause to search a person may also be combined with recognized exigent circumstances to permit a full warrantless search of him or her without grounds for an arrest. Vandiver, 257 Kan. at 62; State v. Houze, 23 Kan. App. 2d 336, Syl. ¶ 1, 930 P.2d 620 ("A warrantless search of a person is permissible where there is probable cause for the search and exigent circumstances justify an immediate search."), rev. denied 261 Kan. 1088 (1997); United States v. Banshee, 91 F.3d 99, 102 (11th Cir. 1996);accord United States v. Robinson, 414 U.S. 218, 227-28, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) ("'A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation.'").
We now apply those principles to McClay's search of Beltran.
Officers Had No More Than Reasonable Suspicion Beltran Possessed Weapons or Contraband
Based on the record evidence and fully crediting McClay's testimony, as the district court did, we do not share its conclusion that an officer would have had more than a reasonable suspicion that Beltran possessed a weapon or contraband. Beltran's late afternoon presence at a house the officers had good reason to believe was the site of ongoing drug dealing cannot itself amount to probable cause to conclude he had a weapon or illegal drugs. Beltran had no particular connection to the house. At the time the officers arrived, they had no basis other than his presence there to assume his involvement in drug trafficking, either as a buyer or seller, or in any other criminal activity. ...