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State v. Torres

Supreme Court of Kansas

July 6, 2018

State of Kansas, Appellee,
v.
Seth Torres, Appellant.

         SYLLABUS

         1. The ultimate touchstone of the Fourth Amendment to the United States Constitution is reasonableness. A search undertaken by law enforcement officials to discover evidence of criminal wrongdoing generally requires the obtaining of a judicial warrant. If law enforcement officers do not have a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.

         2. The State carries the burden to justify a warrantless search.

         3. The Kansas Supreme Court generally does not consider issues not raised in a petition for review or cross-petition.

         4. Under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), law enforcement officers can conduct a warrantless search of an automobile incident to arrest in two specific circumstances: when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search (the officer-safety justification) or when it is reasonable to believe evidence relevant to the crime of arrest might be in the vehicle (the evidence-preservation justification). Gant also recognizes officers may rely on other exceptions to the warrant requirement to conduct an automobile search.

         5. Under Gant's officer-safety circumstance, law enforcement officers may search the passenger area and any containers in it after an arrest, but only when officers have not yet secured a passenger who remains within reaching distance of the passenger area at the time of the search.

         6. Under Gant's evidence-preservation justification, the circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be in the vehicle.

         7. When a criminal defendant challenges the sufficiency of evidence, appellate courts review the evidence in a light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. In making a sufficiency determination, the appellate court does not reweigh evidence, resolve evidentiary conflicts, or make determinations about witness credibility.

          8. K.S.A. 2017 Supp. 21-5707(a)(1) provides that the illegal use of a communication facility means knowingly or intentionally using a communication facility, such as a cell phone, to commit a drug crime.

         9. Use of a communication facility occurs at both ends of a communication-that is, whether an individual initiates or receives the communication.

         10. Venue to prosecute an alleged drug dealer for the crime of unlawful use of a communication facility is proper in the county where a potential drug purchaser initiates a telephone call to the dealer if the dealer knows the location of the caller and intentionally uses the communication to facilitate the sale of drugs.

          Review of the judgment of the Court of Appeals in 53 Kan.App.2d 258, 386 P.3d 532 (2016). Appeal from Lyon District Court; Merlin G. Wheeler, judge.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Susan E. Bandy, legal intern, was with him on the brief for appellant.

          Carissa E. Brinker, assistant county attorney, argued the cause, and Marc Goodman, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

          OPINION

          Luckert, J.

         Seth Torres sold methamphetamine to a confidential informant, Justin Barrett, while law enforcement officers observed them. Barrett paid for the methamphetamine with $220 cash provided by law enforcement officers who had recorded each bill's serial number. After the drug deal, Torres briefly entered a nearby apartment before he got into the passenger seat of a car and left. A law enforcement officer followed the car and pulled it over. Another officer formally arrested Torres and searched the car, finding $200 of the recorded money. The State charged Torres, who moved to suppress the evidence seized in the car search. He argued the officer conducted an illegal, warrantless search without probable cause or a reasonable basis to believe the money used in the drug buy would be in the car rather than the apartment he had entered. The district court denied his motion, and a jury convicted him of methamphetamine distribution and illegal use of a communication device to facilitate a drug transaction. Torres appealed, and the Court of Appeals affirmed his convictions. See State v. Torres, 53 Kan.App.2d 258, 271, 386 P.3d 532 (2016).

         Before the Court of Appeals, Torres first argued the district court erred in denying his motion to suppress evidence because the search occurred without a warrant and thus violated the Fourth Amendment to the United States Constitution. The Court of Appeals recognized that courts generally view an officer's warrantless search as unconstitutional unless it meets a warrant exception. But the Court of Appeals found the search fell within the automobile and search-incident-to-lawful-arrest exceptions to the warrant requirement. 53 Kan.App.2d at 263-66. The Court of Appeals rejected a third exception the district court had cited-the plain-view exception. 53 Kan.App.2d at 266.

         Based on our review, we conclude the law enforcement officer conducted a constitutional search under the United States Supreme Court's holding in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), relating to the search-incident-to-lawful-arrest exception in a vehicle context. Because we reach that conclusion, we need not determine whether other warrant exceptions apply.

         Torres also argued before the Court of Appeals that the State had failed to establish venue as required to convict him of illegal use of a communication device to facilitate a drug transaction. The Court of Appeals held sufficient evidence established Torres called Barrett knowing Barrett was in the City of Emporia, which is located in Lyon County, ...


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