State v. Pettay

296 P.3d 1141

STATE of Kansas, Appellee,

v.Erik PETTAY, Appellant.

No. 107,673.

Court of Appeals of Kansas.

March 15, 2013.

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

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

Daniel D. Gilligan, assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.

MEMORANDUM OPINION

PER CURIAM.

Erik Pettay appeals his conviction of felony possession of marijuana. The sole issue is whether the district court erred in denying Pettay's motion to suppress the evidence. On April 19, 2009, Pettay was arrested and placed in the backseat of a patrol car while his vehicle was searched and the marijuana was discovered. Based upon the good-faith exception to the exclusionary rule pronounced by the Kansas Supreme Court in State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (2010), cert. denied––– U.S. ––––, 131 S.Ct. 2114, 179 L.Ed.2d 908 (2011), we conclude the district court did not err in denying the motion to suppress the evidence.

Factual and Procedural Background

On April 19, 2009, Deputy Matt Tatro was following a Lincoln Town Car while on routine patrol. Tatro ran the car's tag number through his computer; it identified the car's registered owner as Pettay. Tatro asked dispatch to find Pettay's driver's license information and provide him with a physical description. Dispatch informed Tatro that Pettay's driver's license was suspended. Dispatch also provided Pettay's physical description, which matched the person he saw driving the car.

Tatro activated this emergency lights to initiate a traffic stop. Tatro approached Pettay, who acknowledged that his driver's license was suspended because of a problem with his insurance. Tatro arrested Pettay for driving with a suspended license and failure to provide proof of liability insurance. At this point, Tatro handcuffed Pettay and placed him in the backseat of his patrol vehicle.

About this time, another officer arrived on the scene. The other officer stayed with Pettay while Tatro went to the Town Car and conducted a search incident to arrest. During the search, Tatro found a multicolored glass pipe on the passenger floorboard with residue that Tatro identified as marijuana. Tatro then arrested Pettay for possession of marijuana and possession of drug paraphernalia. After being advised of his Miranda rights, Pettay acknowledged that the pipe belonged to him and that he had smoked marijuana the previous night.

On April 21, 2009, the State charged Pettay with felony possession of marijuana after a prior conviction, failure to provide proof of liability insurance, and driving with a suspended license. Pettay filed a motion to suppress the evidence Tatro found when he searched the car and Pettay's subsequent statement. Pettay argued that Tatro's search of his car violated 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). The Gant Court held:

“Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of the arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” 556 U.S. at 351.

Pettay further argued that the search of his car violated the Kansas Supreme Court's decision in State v. Henning, 289 Kan. 136, 209 P.3d 711 (2009). The Henning court found that based upon the decision in Gant,K.S.A. 22–2501(c) was facially unconstitutional under the Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights. 289 Kan. at 148–49, 209 P.3d 711. That statute had allowed a law enforcement officer conducting a lawful arrest to execute a warrantless search of the area within the subject's immediate presence for the purpose of discovering evidence of “a” crime, as opposed to discovering evidence of the offense of arrest. 289 Kan. at 138, 209 P.3d 711.

In his motion, Pettay acknowledged that both Gant and Henning were released after his arrest and search. Tatro arrested Pettay and searched his car on April 19, 2009. The Gant decision was released 2 days later, on April 21, 2009. Gant, 556 U.S. at 332. The Kansas Supreme Court released its decision in Henning about 2 months later, on June 26, 2009. Henning, 289 Kan. at 136, 209 P.3d 711. Pettay maintained that although it appeared Tatro followed the law in place at the time of the search, the State should not be allowed to admit the evidence based on the fact that Tatro acted in good faith. Pettay pointed out that neither the United States Supreme Court in Gant nor the Kansas Supreme Court in Henning had discussed the possibility of an exception to their holdings when an officer had acted in good faith.

The State filed a response to Pettay's motion. The State conceded that the search of Pettay's car violated Gant but contended that the fruits of the search should be admitted under the good-faith exception to the Fourth Amendment created in United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The State argued that Tatro's search was in good faith because he was following the law in place at the time of the search.

On April 12, 2010, the district court held a hearing on the motion to suppress. At the hearing, Tatro testified that Pettay's pipe was not in plain view until Tatro opened the car door. Tatro further acknowledged that Pettay was under arrest and in the patrol car when Tatro searched the Town Car, so there was no concern for officer safety. Finally, Tatro acknowledged that he did not intend to find evidence regarding the crimes of driving with a suspended license or no proof of insurance when searching the Town Car.

After hearing the evidence, the district court granted the motion to suppress. The district court noted that when the United States Supreme Court and the Kansas Supreme Court make a constitutional ruling, the ruling generally applies to every case that is pending at that time, including cases on appeal. The district court determined that a good-faith exception did not apply because neither the United States Supreme Court nor the Kansas States Supreme Court had discussed the possibility of such an exception.

The State filed an interlocutory appeal. On November 19, 2010, the Kansas Supreme Court released its decision in Daniel, in which the court held that the exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance upon K.S.A. 22–2501(c) prior to the United States Supreme Court's ruling in Gant. 291 Kan. at 493, 242 P.3d 1186. On June 21, 2011, this court reversed the district court's order on Pettay's motion to suppress and remanded the case for further proceedings. This court acted pursuant to Supreme Court Rule 7.041 (2012 Kan. Ct. R. Annot. 61), issuing a summary order and noting that the court was relying on our Supreme Court's decision in Daniel.

On September 15, 2011, Pettay filed a motion to reconsider. The motion was based on this court's decision in State v. Dennis, No. 101,052, 2011 WL 425987 (Kan.App.2011) (unpublished opinion), rev. granted May 31, 2011. The facts in Dennis centered on the search of a car incident to the occupant's arrest and after his removal from the vicinity of the vehicle. The search occurred on November 16, 2007, well before Gant was decided. A majority of the Dennis panel held that Daniel did not mandate application of the good-faith exception to the exclusionary rule because the officer in Dennis did not claim to have relied on K.S.A. 22–2501(c). 2011 WL 425987, at *3.

On October 20, 2011, the district court issued an opinion denying Pettay's motion to reconsider. The district court found that it was bound to follow our Supreme Court's ruling in Daniel. On November 17, 2011, the district court held a bench trial on stipulated facts and found Pettay guilty on all charges. The district court imposed sentence on February 3, 2012. Pettay timely appealed the district court's judgment.

Analysis

Pettay argues the district court incorrectly found that our Supreme Court's ruling in Daniel controls the outcome of the case. To the contrary, Pettay argues that the analysis by this court in Dennis is applicable to his case because Tatro never expressly stated that he relied on K.S.A. 22–2501. Pettay also argues that Tatro acted outside the scope of K.S.A. 22–2501 by searching outside of Pettay's immediate presence. Pettay's arguments affect only his conviction of felony possession of marijuana; Pettay makes no arguments on appeal challenging his convictions of failure to provide proof of liability insurance and driving with a suspended license. The State maintains that the outcome of this case is controlled by Daniel and the district court did not err in denying the motion to suppress.

In reviewing the district court's ruling on a motion to suppress evidence, an appellate court adopts the factual findings of the district court if the findings are supported by substantial competent evidence. The appellate court, however, possesses unlimited review of the ultimate legal conclusion drawn from the factual findings. In the present case, the facts are not substantially in dispute; therefore, this court exercises de novo review of the suppression question. See Daniel, 291 Kan. at 495, 242 P.3d 1186.

The Fourth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, prohibits unreasonable searches and seizures. This protection is also guaranteed by § 15 of the Kansas Constitution Bill of Rights. State v. Ramirez, 278 Kan. 402, 404–05, 100 P.3d 94 (2004)....