BY THE COURT
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
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.
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.
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
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.
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.
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.
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.
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
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.
from Sedgwick District Court; Warren M. Wilbert, judge.
F.A. Maughan, of Maughan Law Group LC, of Wichita, for
J. Maloney, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, for
Buser, P.J., Pierron and Standridge, JJ.
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.
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
and Procedural Background
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
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.
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.
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."
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
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.
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
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.
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
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.
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