[Copyrighted Material Omitted]
Syllabus by the Court
Following a lawful traffic stop of a defendant, an officer's warrantless search of a vehicle incident to arrest for driving under the influence is lawful if the officer's observations regarding the defendant's appearance and clues exhibited on field sobriety tests, coupled with the odor of alcohol coming from the car itself, make it " reasonable to believe" evidence relevant to the crime of driving under the influence might be found in the vehicle.
Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant.
Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
Rhonda K. Ewertz appeals her conviction of possession of methamphetamine and possession of drug paraphernalia with intent to introduce a controlled substance into the human body, claiming the district court erred in denying her motion to suppress. She argues the search of her car was not permissible as a search incident to arrest and the search of her makeup bag was not permissible under the plain view doctrine.
The parties stipulated to most of the following facts, with the exception of the testimony from the hearing on the motion to suppress specifically referenced below. On March 22, 2010, Officer Matt Tatro observed a car traveling with no taillights. Tatro testified that the car was swerving in its lane and once crossed over the fog line. Tatro stopped the car and identified the driver as Ewertz by her Kansas driver's license. After initiating contact with Ewertz, Tatro observed several clues of intoxication, including an odor of alcohol coming from the car and Ewertz' bloodshot and glassy eyes, [49 Kan.App.2d 9] slurred speech, and overall speech pattern. Ewertz admitted that she told Tatro she had consumed at least one alcoholic beverage prior to driving; Tatro testified that Ewertz also told him that she could not remember how many alcoholic beverages she had consumed.
Ewertz showed clues of intoxication on multiple field sobriety tests, including an alphabet test, a counting test, the walk-and-turn test, and the one-leg-stand test. Officer Tatro observed six clues during a horizontal nystagmus gaze test. After Ewertz refused to take the preliminary breath test, she was placed under arrest for suspicion of driving under the influence.
After placing Ewertz in his patrol car, Officer Tatro prepared to conduct a search of the car for open containers of alcohol. Before returning to the car, Tatro asked Ewertz if she had a purse. Ewertz said she did and that it was in the passenger seat. Thereafter, Tatro went back to the car to retrieve the purse and to conduct a search of the car incident to arrest. In so doing, he observed an unzipped, pink makeup bag on the passenger side floorboard of the car containing a glass pipe with clearly visible burnt residue inside it. Ewertz admitted the makeup bag was hers, and Tatro thereafter searched through its contents. Tatro ultimately found a small zippered pouch, inside of which was a plastic baggie containing a crystalline substance that Tatro believed in his training and experience to be methamphetamine. The baggie and the glass pipe were tested, and methamphetamine was found in both.
Ewertz filed a motion to suppress the evidence discovered on the grounds that Officer Tatro did not have legal authority to search inside the car. After a hearing, the court held the search was lawful and the evidence legally admissible. Ewertz appeals from this ruling.
On a motion to suppress evidence, this court reviews the factual ...