State v. McComb

291 P.3d 1073

STATE of Kansas, Appellee,

v.Timothy McCOMB, Appellant.

No. 106,841.

Court of Appeals of Kansas.

Jan. 11, 2013.

Appeal from Reno District Court; Timothy J. Chambers, Judge.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Andrew R. Davidson, assistant district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., BUSER, J., and KNUDSON, S.J.

MEMORANDUM OPINION

PER CURIAM.

Timothy McComb contends that the district court erred at his trial when it admitted contraband evidence found in a cigarette pack recovered from his car during an inventory search. In his view, the police had no good reason to stop him. We hold it was reasonable for the police officer to stop McComb for driving with his car's headlights off after dark. McComb also contends the police had no reason to impound his car. Because McComb failed to argue to the district court that the police had no reason to impound his car, we deem that claim abandoned and do not address that issue. Finally, McComb claims the inventory search was too extensive and, thus, illegal. We hold that the resulting inventory search was reasonable and the police officer had good reason to search the cigarette pack found during the search of the car. The district court did not err when it admitted the contraband discovered during the search. Accordingly, we affirm.

An officer follows McComb's car down an alley.

Hutchinson Police Officer Robert W. Rowe, III, noticed a car make an abrupt right turn, jump a curb, and drive across private property. Officer Rowe followed the car down an alley. Rowe noticed that the car did not have its headlights on. The car finally parked in a lot at the side of a pawn shop.

Officer Rowe talked with the driver of the car, Timothy McComb. Officer Rowe's reason for stopping McComb was that the car's headlights were off. McComb told Officer Rowe he was having car problems. Neither McComb nor the passenger were wearing proper restraints. Officer Rowe also discovered the car tag was expired. The officer ultimately cited McComb for driving with expired tags, having no proof of insurance, and a seatbelt violation. The officer did not issue a citation for driving without headlights.

Officer Rowe testified it is the policy of the Hutchinson Police Department to impound cars that are improperly registered and not covered by insurance. Following this policy, Officer Rowe decided to impound McComb's car because it was not insured and had an expired tag. Before doing so, Officer Rowe advised McComb that he was going to impound the car and asked if there was anything valuable McComb wanted removed. McComb told Officer Rowe the specific items he wanted, and Officer Rowe retrieved those items.

While he was removing those items, Officer Rowe found a cigarette box between the front driver's seat and the front passenger seat. Inside the cigarette box, Rowe found two bags containing methamphetamine. When asked why he looked inside the cigarette box, Officer Rowe explained that when he conducts an inventory search, he looks through everything. He maintained that an officer is responsible for any valuables inside the car, and he knows people keep cash and small jump drives inside cigarette boxes. McComb had not specifically asked Officer Rowe to retrieve the cigarette box.

After McComb's arrest, a search of McComb's person yielded coin baggies containing white residue, a spoon, and a butterfly knife. After McComb was advised of his Miranda rights, he admitted to Officer Rowe that the cigarette box contained methamphetamine, but he claimed it did not belong to him. With regard to the initial stop of his car, McComb told Officer Rowe he saw the officer behind him and got scared, so he turned and jumped the curb. McComb said he drove down the alley and “blacked out” his lights after the passenger in his car started “acting funny.”

Based on these events, the State charged McComb with possession of methamphetamine, a drug tax stamp violation, possession of drug paraphernalia, criminal use of a weapon, no car insurance, and driving with expired tags.

McComb asks to suppress the fruits of the search.

Prior to trial, McComb moved to suppress all the evidence obtained as a result of the stop and subsequent searches. McComb claimed the stop of his car was illegal, there was no legal basis for the inventory search of his car, and the search of the cigarette box exceeded the permissible scope of an inventory search.

At the hearing on McComb's motion, McComb first argued it was questionable whether the stop was valid, noting the video evidence of the stop had not been introduced in support of Officer Rowe's testimony that McComb's headlights were off. McComb also noted Officer Rowe did not issue him a citation for driving without headlights. McComb next argued that “the extent of that search” was at issue. McComb claimed Officer Rowe lacked reasonable grounds for believing the cigarette box would contain items of value, noting Officer Rowe asked McComb and his passenger what specific items they wanted from the car and neither requested the cigarette box.

McComb never contested the Hutchinson police policy of impounding all cars that are improperly registered and not insured.

After hearing testimony from Officer Rowe, the district court denied McComb's motion, holding the impoundment of McComb's car was reasonable and the search of the cigarette box was lawful. Following the suppression hearing, the State provided McComb with the video evidence of the stop. McComb asked the district court to review this evidence and reconsider the denial of his motion, noting the video showed that his headlights were on prior to the stop.

After reviewing the video evidence, the district court again denied McComb's motion. The court found that when the video was viewed “frame by frame,” it showed McComb's headlights were off for a “split second” or a “nanosecond.”

At this point, McComb waived his right to a jury trial and stipulated to certain facts. Based on that stipulation, the district court found McComb guilty of the crimes charged (the possession of methamphetamine without tax stamps charge was dismissed by the State). The court sentenced McComb to a term of imprisonment. McComb appeals the denial of his motion to suppress the contraband.

In this appeal, McComb attacks the ruling of the district court on three fronts. McComb says the district court erred in determining (1) there was reasonable suspicion for the stop; (2) Officer Rowe had the authority to conduct an inventory search; and (3) the search of the cigarette box was lawful. We will deal with McComb's claims in that order.

The district court's ruling on the stop is supported by substantial competent evidence.

At this point, it is helpful to review our standards. An appellate court reviews the district court's decision on a motion to suppress looking at the evidence and the law. Without reweighing the evidence, this court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. The district court's ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Johnson, 293 Kan. 1, 4, 259 P.3d 719 (2011). The State bears the burden of proving a search or seizure is constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008).

McComb first claims the district court erred in determining Officer Rowe had reasonable suspicion to stop him. McComb says the video evidence does not support a finding that he was driving without headlights.

In upholding the stop, the district court determined McComb's headlights were not working while he was driving down the alley, and the car “went darkened” [ sic ] before parking in a business parking lot. After viewing the video evidence, the district court confirmed that McComb's headlights were off for a “split second” or “nanosecond” while McComb was driving down the alley.

The district court's findings are supported by the record. Officer Rowe testified that McComb's headlights were off while he was driving down the alley. If one reviews the video frame by frame, it shows that McComb's headlights indeed appear to be switched off briefly, just as Officer Rowe turns down the alleyway. Also, Officer Rowe testified that after McComb was advised of his Miranda rights, he admitted that he “blacked out” the lights while driving down the alley.

It appears that McComb asks us to reweigh the evidence, something the court is prohibited from doing. See State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006), where the court held that when reviewing a district court's decision regarding suppression, the appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. Further along this line, both the video evidence and Officer Rowe's testimony support a finding that McComb was driving without headlights.

On appeal, the State points out that McComb stipulated to driving with his headlights off We are not so persuaded. Although the stipulation of facts included two facts indicating McComb drove without headlights ( i.e., stipulation 4b states McComb's car entered an alley and “blacked out,” and stipulation 4g states McComb spoke with Officer Rowe and admitted to blacking his lights out), prior to the stipulation McComb made it clear that he was not stipulating that he did, in fact, black his lights out; he was only stipulating that Officer Rowe would testify to this effect. Thus, the stipulation cannot be used to support the district court's finding that McComb was driving without headlights.

We therefore affirm the district court's determination that the stop was lawful, as it is reasonable for an officer to stop a car driving at night with its headlights extinguished.

McComb failed to argue to the district court that the impoundment was...