As Corrected April 1, 2014.
Appeal from Sedgwick District Court; JAMES R. FLEETWOOD and JOSEPH BRIBIESCA, judges.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded.
BY THE COURT
1. A warrantless search by a police officer is per se unreasonable under the Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights, unless the State can establish that the circumstances of the search fit within one of the recognized exceptions to the warrant requirement.
2. If a vehicle is readily mobile and probable cause exists to believe that the vehicle contains contraband or evidence of a crime, our federal and state constitutions permit the police to search the vehicle without a warrant, but the State bears the burden of proving the lawfulness of any warrantless vehicle search.
3. Probable cause to search a vehicle can be established if the totality of the circumstances indicates that there is a fair probability that the vehicle contains contraband or evidence of a crime.
4. The gravamen of the traffic offense proscribed by K.S.A. 2013 Supp. 8-1599 is transporting an open container of alcohol on a highway or street when the container is not stored in a statutorily permissible location within the transporting vehicle. Operating a vehicle in which alcohol has previously spilled does not, without more, establish a violation of K.S.A. 2013 Supp. 8-1599.
5. To have probable cause to search a vehicle for an open container of alcohol as part of an investigation for a violation of K.S.A. 2013 Supp. 8-1599, the investigating officer must possess information that creates a fair probability that the vehicle contains an open container that has been unlawfully transported.
Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
[299 Kan. 54] OPINION
After stopping Robert Stevenson's sport utility vehicle based upon a turn signal violation, law enforcement officers searched the vehicle because they observed a very strong odor of alcohol emanating from inside the vehicle after Stevenson, the lone occupant, had exited. The search led to the discovery of methamphetamine and the subsequent prosecution of Stevenson for possessing that drug, in violation of K.S.A. 2008 Supp. 65-4160. Stevenson sought to suppress the fruits of the warrantless search, but the district court held that the odor of alcohol inside the vehicle was sufficient to establish probable cause to search the vehicle for an open container of alcohol. In a split decision, a panel of the Court of Appeals affirmed that holding. State v. Stevenson, 46 Kan.App.2d 474, 262 P.3d 689 (2011) (Buser, J., dissenting). This court accepted review of the Court of Appeals' decision; our jurisdiction is pursuant to K.S.A. 20-3018(b) and K.S.A. 22-3602(e). Based upon the totality of circumstances in this particular case, we determine that the search was unlawful.
Factual and Procedural Overview
On December 19, 2008, at approximately 4 a.m., Detective Jon Gill and Deputy Justin Crafton were watching a house that the officers suspected of drug activity. They had previously stopped vehicles leaving the house and discovered criminal activity. When Stevenson's vehicle left the house, the officers followed it until they observed the vehicle's turn signal engage as it approached a stop sign at the intersection of 14th and Broadway. Detective Gill opined that the turn signal was initiated approximately 15 feet from the intersection, and Deputy Crafton estimated that the distance [299 Kan. 55] was 30 feet. But this court has held that a driver is absolutely liable if he or she fails to continuously signal a turn for 100 feet prior to the turn. State v. Greever, 286 Kan. 124, Syl. ¶ ¶ 8, 9, 184 P.3d 788 (2008). The officers testified that they relied on the 100 feet rule to justify stopping Stevenson's vehicle after targeting it to investigate for drug activity. See 286 Kan. at 142 (Johnson, J., dissenting) (predicting absolute liability 100 feet turn signal rule would be extensively used to legalize profiling selected targets for investigatory detentions).
Deputy Crafton approached the vehicle's driver side, while Detective Gill approached the passenger side. Stevenson was the only occupant of the vehicle. The area of the stop was " fairly lit up" by streetlights. Deputy Crafton noticed a very strong odor of alcohol coming from the open driver's side window and directed Stevenson to exit and proceed to the rear of his vehicle. While the deputy conducted field sobriety tests on Stevenson outside his vehicle, Detective Gill proceeded to the driver's side and " stuck [his] head in the vehicle." Either before or while he was inside the vehicle, the detective also noticed a very strong odor of alcohol, " as if possibly an alcohol container had spilled inside the vehicle." The detective subsequently reiterated that, based upon his law enforcement experience, " [i]t smelled to [him] as if an alcohol container had spilled inside the vehicle. It was a very strong, very strong odor."
The officers determined that Stevenson was not under the influence of alcohol and they permitted him to re-enter his vehicle. A records check indicated that Stevenson's driver's license was valid and clean and that he had no outstanding wants or warrants. Nevertheless, the officers continued the detention because they believed they had probable cause to search Stevenson's vehicle for an open container of alcohol based solely on the odor of alcohol. Specifically, Deputy Crafton testified that he believed that the circumstance was akin to the probable cause definitively created by the odor of marijuana. The officers confirmed at the suppression hearing that they had not observed anything in plain sight that would justify the search
and that they had not asked Stevenson for his consent to search his vehicle.
[299 Kan. 56] Crafton apparently first looked for an open container inside of the center console of the front seat, where he found two glass pipes containing a crystal-like residue that Crafton suspected was methamphetamine. Then, a digital scale was recovered from the map pouch on the back of the passenger seat. Finally, the deputy noticed a large bottle of red wine on top of the vehicle's backseat. Crafton testified that the lid was on the half-empty bottle but that he could tell that it had been previously opened. He noticed a wet, red liquid on the floorboard right ...