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State v. Howard

Supreme Court of Kansas

March 10, 2017

State of Kansas, Appellee,
Cameron Howard, Appellant.


          1. In reviewing the granting or denial of a motion to suppress evidence, an appellate court determines whether the factual findings underlying the trial court's suppression decision are supported by substantial competent evidence. The appellate court does not reweigh the evidence or reassess the credibility of the witnesses. The ultimate legal conclusion drawn from those factual findings is reviewed under a de novo standard.

         2. The Fourth Amendment to the United States Constitution, applicable to the States via the Fourteenth Amendment, establishes the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches. Section 15 of the Kansas Constitution Bill of Rights provides identical protection. If conduct is prohibited by one, it is prohibited by the other.

         3. A warrantless search is per se unreasonable, and the fruits of that search inadmissible, unless the search falls within one of the established exceptions to the search warrant requirement. Those exceptions are consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view or feel; and administrative searches of closely regulated businesses.

         4. When probable cause and an exigent circumstance are present, an officer may perform a warrantless search of a car without violating the Fourth Amendment.

         5. Exigent circumstances exist where the police officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband.

         6. For Fourth Amendment purposes, the mobility of a vehicle fulfills the requirement of exigent circumstances, so that a warrantless vehicle search is permitted based solely on probable cause.

         7. Probable cause to search a vehicle exists when the totality of the circumstances indicates there is a fair probability that the vehicle contains contraband or evidence of a crime.

         8. When analyzing the totality of the circumstances, an appellate court will consider all of the information in the officer's possession, fair inferences therefrom, and any other relevant facts, even if they may not be admissible on the issue of guilt.

          Review of the judgment of the Court of Appeals in 51 Kan.App.2d 28, 339 P.3d 809 (2014).

          Appeal from Johnson District Court; James Franklin Davis, judge.

          Craig M. Divine, of Divine Law Office, LLC, of Kansas City, Missouri, and Clayton E. Gillette, of Gillette Law Office, LLC, of Kansas City, Missouri, argued the cause and were on the briefs for appellant.

          Jacob M. Gontesky, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

          Per Curiam

         Cameron Howard was convicted of criminal possession of a firearm by a convicted felon. The Court of Appeals affirmed his conviction, and we granted review.


         The relevant facts are uncontested. On October 19, 2006, Cameron Howard pled guilty to one count of "Burglary First Degree, Class B Felony" in the circuit court of Jackson County, Missouri. Howard was then adjudged guilty by the Missouri court. Following the plea and adjudication, the court ordered that the "imposition of sentence be suspended and [the] defendant is placed on probation for a period of three (3) years . . . ." In Yale v. City of Independence., 846 S.W.2d 193, 196 (Mo. 1993), the Missouri Supreme Court held that a "suspended imposition of sentence" does not constitute a conviction under Missouri law.

          On October 17, 2008, the Missouri court determined that Howard had successfully completed his probation and discharged him from the court's jurisdiction. It further ordered that the file be "a closed record to the extent provided by law, " as prescribed by Mo. Rev. Stat. § 610.105.1.

         Nearly 3 years later, on September 15, 2011, Police Officer Chad Loughman was near 7720 State Line Road in Prairie Village, Johnson County, Kansas, looking for drivers who would pull into a gas station parking lot to avoid a traffic light-a traffic violation in Prairie Village. Loughman observed Howard pull into the parking lot and then out of it, effectively avoiding the traffic light. Loughman also noticed that Howard and his passenger had the shoulder straps of their seatbelts behind them, leading him to believe that they were not properly wearing the belts.

         Loughman pulled Howard over and asked for his identification. At this time, Loughman saw that the passenger had reclined her seat since he had first seen the vehicle. Loughman called in Howard's identification to dispatch, which informed him that there was a warrant for Howard's arrest from Leawood Municipal Court. After learning of the warrant, Loughman called for backup, and Sergeant James Carney came to the scene.

         After Carney arrived, Loughman had Howard step out of the car and stand at the rear passenger's door with Carney. Loughman then scanned the car, looking underneath Howard's seat for a weapon. Loughman found no weapons but discovered a plastic baggie with a ripped out corner in the center console. Loughman then secured Howard in the back of Carney's police car and told Howard he was being put under arrest pursuant to the Leawood warrant.

         Loughman then took the passenger's identification and learned from dispatch that there was a warrant for her arrest from Prairie Village Municipal Court. Loughman had the passenger step out of the car and, because she was pregnant, had her sit on the curb about 6 to 8 feet away from the car.

         After removing the passenger, Loughman moved the passenger seat forward and found a firearm, subsequently classified in the record as an AK-47 pistol, that was concealed under a floor mat. It is unclear exactly where the weapon was located in the car because the officer testified that the firearm was concealed by "[t]he driver's side rear floormat" and the "front passenger seat, that floormat."

         After finding the firearm, Loughman Mirandized Howard. Loughman then asked Howard about the plastic baggie. Howard responded that the baggie had previously held marijuana.

         Howard was subsequently charged with criminal possession of a firearm by a convicted felon under K.S.A. 2011 Supp. 21-6304(a)(2) for possession of a firearm within 5 years after having been convicted of a felony under the laws of another state. The charge was based on the AK-47 found in Howard's car on the day of the traffic stop and on the prior Missouri burglary charge.

         Before Howard's trial, both he and the State filed a number of motions. Howard filed a motion to dismiss, arguing that the Missouri judgment was not a conviction and thus he could not be convicted under K.S.A. 2011 Supp. 21-6304. Howard also filed a motion to suppress any evidence related to his possession of the firearm because the evidence was obtained through a warrantless search of his car. Finally, the State filed a motion in limine requesting that the court preclude Howard from "introducing evidence that ...

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