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State v. Hadley

Court of Appeals of Kansas

December 22, 2017

State of Kansas, Appellee,
v.
Tiffany S. Hadley, Appellant.

         SYLLABUS BY THE COURT

         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 ultimate legal conclusions drawn from those factual findings are reviewed under a de novo standard. The appellate court does not reweigh the evidence or reassess the credibility of the witnesses.

         2. When analyzing the totality of circumstances within a law enforcement officer's knowledge to assess whether probable cause exists, 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.

         3. 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.

         4. A warrantless search is per se unreasonable, and the fruits of that search are 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.

         5. When probable cause and an exigent circumstance are present, a law enforcement officer may perform a warrantless search of a person without violating the Fourth Amendment to the Constitution of the United States. The State bears the burden to show that a warrantless search was lawful.

         6. Probable cause exists where the totality of the facts and circumstances within the acting law enforcement officer's knowledge and of which the officer 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.

         7. In the context of search and seizure law, probable cause is the reasonable belief that there is a fair probability that the place to be searched contains contraband or evidence of a crime. 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.

         8. When analyzing the totality of circumstances to determine if a law enforcement officer had probable cause to believe that a person possessed marijuana, the smell of burning or burnt marijuana by an experienced law enforcement officer is a significant circumstance to be considered.

         9. 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.

         10. Under the totality of circumstances present in this warrantless search based on probable cause with exigent circumstances-including the very strong odor of burning and burnt marijuana detected by experienced law enforcement officers emanating from the passenger compartment of the vehicle in which the defendant was driving; the smell of burnt marijuana coming from the defendant personally; the fact that prior to the search of the defendant all other places for the marijuana to be located had been searched without finding the drug; and the defendant's failure to dim her vehicle's headlights upon repeatedly being alerted by officers to her unsafe driving, which suggested inattentiveness due to the effects of smoking marijuana-the officers had knowledge, based on trustworthy information, to warrant a person of reasonable caution in the belief that the offense of possession of marijuana was being committed, and a reasonable belief in the fair probability that defendant personally possessed the marijuana.

         Appeal from Sedgwick District Court; Warren M. Wilbert, judge.

          Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

          Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Buser, P.J., Pierron and Standridge, JJ.

          BUSER, J.

         Tiffany S. Hadley appeals her felony conviction for possession of marijuana after a prior conviction. She contends this conviction should be reversed because the district court erred in denying her motion to suppress evidence of the marijuana. In particular, Hadley asserts that law enforcement officers violated her rights under the Fourth Amendment to the Constitution of the United States when, subsequent to a traffic stop, an officer searched her without a warrant and without probable cause which led to the discovery of the marijuana hidden in her undergarment.

         Applying the legal principles articulated by our Supreme Court in State v. Fewell, 286 Kan. 370, 379, 184 P.3d 903 (2008), to the unique facts of this case, we hold that under the totality of circumstances, the officers had probable cause to believe that Hadley personally possessed marijuana, which fulfilled an essential requirement of the probable cause with exigent circumstances exception to the Fourth Amendment. Finding no error in the district court's denial of Hadley's motion to suppress evidence, we affirm the conviction.

         Factual and Procedural Background

         On June 27, 2014, the State charged Hadley with possession of marijuana after a prior conviction in violation of K.S.A. 2013 Supp. 21-5706(b)(3) and (c)(2)(B), a severity level five, nonperson, drug grid felony. After a preliminary hearing and arraignment, Hadley filed a motion to suppress evidence of the marijuana found in her undergarment during the traffic stop. In particular, she alleged "there were no grounds to make the stop and it was unlawful." Alternatively, without identifying the constitutional basis upon which the search and seizure was illegal, Hadley claimed that "[t]he defendant's person was unlawfully searched. Anything found during the illegal search must be suppressed."

         On August 27, 2015, by agreement of the district court and the parties, an evidentiary hearing on Hadley's motion to suppress was conducted as part of the bench trial on the complaint. The State presented testimony from three Wichita Police Department officers: Officer Donald Moore, Officer Michael Russell, and Officer Alli Larison. The defense presented testimony from Hadley and her passenger, Carlos Love. The following is a summary of the evidence presented by the parties at the evidentiary hearing.

         About midnight on August 18, 2013, Officer Russell was driving his marked patrol vehicle in a southerly direction on North Minnesota Street in Wichita. At that time, Officer Moore was also on duty and seated in the front passenger seat. The officers observed a Pontiac convertible traveling northbound on North Minnesota Street approaching their patrol vehicle with its bright headlights illuminated. According to Officer Moore, the officers discussed that "the lights were really bright and [Officer Russell] had flashed the lights at them and they didn't take the lights down to dim." Officer Russell described the oncoming headlights as "extremely bright." He testified, "To get the bright lights to turn off, I was flashing my lights at them. That did not work. Then I used my spotlight, flashed it at them, turn it off, they still did not turn off the bright lights as they were approaching us." According to Officer Moore, the failure to dim the bright headlights was a violation of K.S.A. 8-1725.

         As the oncoming Pontiac passed the police vehicle, Officer Moore, who had his passenger-side window down, smelled the odor of marijuana. For his part, Officer Russell, who had his driver-side window down at the time, testified, "When the vehicle passed by, then I could smell the strong [odor] of burned marijuana. I advised my partner that the vehicle smelled like marijuana when it drove by."

         Officer Russell made a U-turn and began to pursue the Pontiac northbound on North Minnesota Street. At that time, it appeared the vehicle's tag light was not illuminated. While the officer pursued the Pontiac, Officer Russell noted that "you could still smell the marijuana coming from the vehicle." Similarly, Officer Russell's report memorialized that "when we were following the vehicle from 2400 North Minnesota to the location of the stop I could smell a strong odor of marijuana." The Pontiac was finally stopped at the intersection of 25th and Poplar Street. It was described as a convertible with its windows down.

         After the Pontiac stopped, Officer Moore left his patrol vehicle and as he approached the passenger's side of the Pontiac he noticed "a very strong odor of marijuana." The officer further described the odor as "pretty recent. The burned marijuana smell, it's recent, is very fresh." Officer Moore asked the passenger, Love, to step out of the Pontiac. Although the officer smelled an "overall odor" of marijuana about Love, he could not testify whether this odor came from the passenger. Officer Moore conducted a pat-down search of Love "[t]o determine if there was any marijuana on that person, and that is where the odor could have been coming from." No marijuana was found.

         While Officer Moore was interacting with Love, Officer Russell contacted the driver, Hadley. At this initial contact, the officer observed the driver-side window down and he "could smell the marijuana from inside the vehicle." Officer Russell obtained Hadley's driver's license and personal information and asked her to step out of the vehicle. "Because of the odor of marijuana coming from the vehicle, " the officer then searched the interior of the Pontiac looking for the marijuana. Asked to describe the odor, Officer Russell testified, "To me it smelled like a fresh smell. It smelled like someone was smoking marijuana when they drove past us, and as we were following the vehicle, it smelled like marijuana was coming from the vehicle, like they were smoking marijuana in the vehicle." The officer also clarified, "You could smell marijuana coming from [Hadley], both occupants from the car, and from the car."

         Prior to the vehicle search, Officer Russell requested that a female officer come to the scene because "[i]f I did not find any marijuana in the vehicle, I wanted a female officer to pat her down, see if the marijuana was on her." Despite his search of the Pontiac's passenger compartment, the officer did not find any marijuana.

         Officer Larison arrived at the scene to conduct a search of Hadley. The officer patted down the front of her dress and "felt a bulge in the front part of her underwear" which she thought was marijuana or some other drugs. The officer reached inside Hadley's underwear and recovered a baggy of marijuana.

         Officer Russell placed Hadley under arrest, handcuffed her, and placed her in the back seat of his patrol vehicle. After she waived her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Hadley provided the officer with an incriminating statement.

         For purposes of the motion to suppress hearing only, the defense presented testimony from Hadley and Love. Hadley testified that when she was driving on August 18, 2013, she did not have her bright lights illuminated, and her tag light was working properly. Hadley did not recall receiving any traffic citations as a result of the traffic stop. She testified the baggie of marijuana was found between her legs and partially inside her vagina. Hadley admitted she was under the ...


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