State v. Cotton

353 P.3d 472 (Table)

STATE of Kansas, Appellee

v.Justin D. COTTON, Appellant.

111,610.

Court of Appeals of Kansas.

July 31, 2015.

James Bordonaro, of Emporia, for appellant.

Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., PIERRON and ATCHESON, JJ.

MEMORANDUM OPINION

PER CURIAM.

Defendant Justin D. Cotton appeals his convictions in Lyon County District Court for possession of methamphetamine and paraphernalia on the grounds the district court erred in denying his motion to suppress the drugs and a digital scale as the product of an unconstitutional search and seizure. Because the law enforcement officer who searched Cotton had ample probable cause to arrest him, the discovery and seizure of the contraband was constitutionally unobjectionable. We, therefore, affirm.

About noon on August 23, 2013, law enforcement officers from the Emporia Police Department and the Lyon County Sheriff's Department coordinated a controlled buy of methamphetamine from a mobile home. The officers promptly obtained a search warrant for the premises and executed the warrant shortly before 3 o'clock that afternoon. Cotton was in the mobile home along with three other people.

The officers immediately handcuffed Cotton. Emporia Police Detective Catherine Ohlemeier patted him down for weapons. Det. Ohlemeier later testified that in at least some circumstances when executing search warrants, she pats down individuals she encounters as a matter of course. And Det. Ohlemeier said that was her reason for searching Cotton.

At the hearing on Cotton's motion to suppress, there was considerable conflicting evidence about the discovery of the digital scale—the object giving rise to the paraphernalia charge. Det. Ohlemeier testified the scale was in Cotton's lap as the officers entered the mobile home and it fell to the floor when they ordered Cotton to stand up. Cotton testified that the scale was in his back pocket and Det. Ohlemeier found it during the patdown after he was handcuffed. Cotton said he had his smart phone out when the officers entered and that's what hit the floor. Some additional evidence at the suppression hearing tended to support Det. Ohlemeier's account. Other evidence tended to support Cotton's version. The district court did not resolve the conflict and assumed the scale had been in Cotton's pocket.

Upon entering the mobile home, Sheriff's Deputy Heath Samuels detained James Schneider. Schneider told Dep. Samuels that he and others in the mobile home had just finished smoking methamphetamine as the officers arrived. Dep. Samuels then spoke with Ronald Corbitt, the owner of the mobile home. Corbitt told Dep. Samuels that Cotton had just purchased a small bag of methamphetamine from Schneider and placed it in the pocket of his pants. According to the officers' testimony, Corbitt was old and apparently in poor health. The record indicates neither he nor Jessica McBride, the fourth person in the mobile home that day, was criminally charged.

After the officers discovered the digital scale, Cotton was arrested for possession of paraphernalia. Sheriff's Deputy Cory Doudican read Cotton the Miranda warnings. Dep. Doudican testified that Cotton invoked his right to speak with a lawyer before answering any questions. Dep. Doudican, nonetheless, told Cotton he needed to disclose any contraband he might have—ostensibly to avoid being charged with bringing contraband into a penal facility, since he would be booked into the county jail. Cotton then told Dep. Doudican he had a bag of methamphetamine in his pocket.

Aware that Cotton would be taken to jail and after talking to Corbitt, Dep. Samuels searched Cotton and found the methamphetamine. The record is unclear whether Dep. Samuels knew of Cotton's admission to Dep. Doudican about the methamphetamine being in his pocket.

The county attorney charged Cotton with possession of methamphetamine, a felony violation of K.S.A.2014 Supp. 21–5706, and possession of paraphernalia, a misdemeanor violation of K.S.A.2014 Supp. 21–5709. As we have indicated, Cotton filed a motion to suppress both the methamphetamine and the scale. After the district court denied the motion, Cotton had a bench trial on stipulated facts. The district court found Cotton guilty of both charges and later imposed a sentence of 24 months in prison and placed him on probation for 18 months. Cotton has timely appealed.

On appeal, Cotton challenges only the district court's ruling on the motion to suppress. Cotton argues Det. Ohlemeier's patdown of him amounted to an unreasonable government search contrary to the protections of the Fourth Amendment to the United States Constitution. On that, he is correct. But, as we explain, the violation makes no difference because Dep. Samuels had independent probable cause to arrest and then to constitutionally search Cotton. For his other argument, Cotton contends the statements Schneider and Corbitt made to Dep. Samuels, largely furnishing the probable cause to arrest, were inadmissible hearsay at the motion to suppress because the two men did not testify. On that, Cotton is incorrect. The statements were not hearsay when offered to show the officer's probable cause.

In reviewing a district court's ruling on a motion to suppress, we apply a well-settled and often-recited bifurcated standard. The appellate court accepts the factual findings of the district court if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007) ; accord State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008) (allocation of burden; quantum of evidence); Thompson, 284 Kan. at 772 (allocation of burden).

As an appellate court, this panel is in no position to resolve the conflicting evidence over how Det. Ohlemeier discovered the digital scale, especially given the divergent accounts from her and Cotton. See State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) (“One of the reasons appellate courts do not assess witness credibility from the cold record is that the ability to observe the declarant is an important factor in determining whether he or she is being truthful.”). We, therefore, proceed from the premise the district court has given us: Det. Ohlemeier found the digital scale during her pat-down search of Cotton.

Consistent with the Fourth Amendment, government agents executing a search warrant may detain persons found on the premises to be searched. Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (“[F]or Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.”); State v. Beltran, 48 Kan.App.2d 857, 862, 300 P.3d 92, rev. denied 298 Kan. 1204 (2013). A search warrant does not, however, permit a search of someone who has not been named in the warrant simply because he or she happens to be on the premises when the government agents arrive. See Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) ; State v. Vandiver, 257 Kan. 53, Syl. ¶ 2, 891 P.2d 350 (1995). Rather, as the Ybarra Court recognized: “a search or seizure of a person must be supported by probable cause particularized with respect to that person.” 444 U.S. at 91.

But the Court also indicated government agents can conduct a limited pat-down search for weapons if they have a reasonable suspicion a person on the premises may be armed and pose a threat. 444 U.S. at 92–93. The Kansas Supreme Court has embraced those principles. See Vandiver, 257 Kan. 53, Syl. ¶¶ 2 –3. And they have been codified in K.S.A. 22–2509. The standard replicates the one for a constitutionally acceptable frisk or pat-down for weapons articulated in Terry v. Ohio, 392 U.S. 1, 27, 29–30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). During a Terry stop, an officer may conduct a pat-down search for weapons if the particular circumstances suggest the individual may be armed and potentially dangerous. Arizona v. Johnson, 555 U.S. 323, 326–27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ; Terry, 392 U.S. at 27, 29–30 ; State v. White, 44 Kan.App.2d 960, 970–71, 241 P.3d 591 (2010). But a practice of conducting pat-down searches routinely without regard to any individualized suspicion violates the Fourth Amendment. White, 44 Kan.App.2d at 971–73 (officer's stated routine of patting down motorist during traffic stops violated Fourth Amendment prohibition on unreasonable searches); State v. Burks, 15 Kan.App.2d 87, 94, 803 P.2d 587 (1990), rev. denied 248 Kan. 997 (1991) (Highway Patrol trooper's “standard procedure” of patting down all hitchhikers he encountered violated Fourth Amendment).

Here, Det. Ohlemeier testified that she patted Cotton down pursuant to her personal practice of doing so when she encounters strangers during the execution of search warrants. The contours of Det. Ohlemeier's practice were not fully developed during the suppression hearing. We don't know if she does so with every search warrant or only those identifying illegal drugs among the items to be seized. Or she may have other criteria. But at the hearing, Det. Ohlemeier disclaimed any particularized reason to suspect Cotton might be armed or otherwise dangerous. Moreover, the officers immediately handcuffed Cotton before Det. Ohlemeier searched him. Had Det. Ohlemeier initially perceived Cotton as posing some threat to the officers' safety (though she said not), that threat would have been markedly reduced after he had been handcuffed.

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