                           NOT DESIGNATED FOR PUBLICATION

                                              No. 122,107

              IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                             Appellant,

                                                    v.

                                      JAYNIE MAXINE BRAZDA,
                                             Appellee.


                                   MEMORANDUM OPINION

        Appeal from Ellis District Court; BLAKE A. BITTEL, judge. Opinion filed July 10, 2020. Reversed
and remanded with directions.


        Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellant.


        J. Alex Herman, of Herman Law Office, P.A., of Hays, for appellee.


Before WARNER, P.J., MALONE and BRUNS, JJ.


        PER CURIAM: The State appeals from the district court's order suppressing
evidence and dismissing the charges against Jaynie Maxine Brazda. The evidence that the
district court suppressed was found in Brazda's purse following her arrest for theft from a
Walmart store. Based on our review of the record on appeal, we conclude that the district
court erred by applying the wrong legal standard in suppressing the evidence. As a result,
we reverse the district court's order suppressing the evidence and dismissing the charges
against Brazda. Moreover, we remand this action to the district court for further
proceedings in order to apply the appropriate legal standard for a search incident to arrest.

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                                           FACTS

       On August 22, 2018, Officer Stephen Ligon of the Hays Police Department was
dispatched to a theft in progress at a Walmart store. Once he arrived at the scene, Officer
Ligon was told—presumedly by a Walmart employee—that two individuals stole items
from the store and fled in a vehicle identified as a tan Buick. Shortly thereafter, Officer
Ligon observed a tan Buick on the south side of the store with two occupants.


       After stopping the vehicle, Officer Ligon determined that Timothy Zeman was the
driver and that Brazda was sitting in the front passenger seat. The occupants were asked
to step out of the vehicle and were patted down for weapons. An asset protection officer
for Walmart approached and told Officer Ligon that three bottles of perfume and a
Bluetooth keyboard had been taken.


       With the door of the vehicle still open, Officer Ligon saw three perfume bottles
lying on the passenger side floorboard where Brazda had been sitting. At that point, the
officer placed Brazda in handcuffs and arrested her for theft. Corporal Phillip Gage—
who was also at the scene—searched the Buick and found the Bluetooth keyboard under
the seat where Brazda had been sitting.


       After placing Brazda in his patrol vehicle, Officer Ligon returned to the Buick and
searched the area where she had been seated. In doing so, he found a purse sitting on the
passenger-side floorboard. In the purse, Officer Ligon found a small plastic baggie of
crystal substance which he believed to be methamphetamine. The baggie was located
inside an empty, clear Tic Tac container. Officer Ligon seized the Tic Tac container
containing the baggie as evidence. Subsequently, he performed a field test and it revealed
a presumptive positive for methamphetamine.




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       After Officer Ligon read Brazda her Miranda rights, he questioned her about the
methamphetamine. She admitted that the purse was hers, and the officers took it into their
possession as part of her personal belongings. Nevertheless, Brazda said the drugs
belonged to Zeman. Specifically, she told Officer Ligon that Zeman threw the Tic Tac
container to her and told her to hide it after they were stopped.


       The State charged Brazda with possession of methamphetamine and possession of
drug paraphernalia. Prior to trial, she filed a motion to suppress. In her motion, Brazda
alleged that the officer's search of her purse was unreasonable, and she asked the district
court to suppress any evidence seized as a result of the search.


       On October 7, 2019, the district court held a hearing on the motion to suppress.
Officer Ligon—who was the only witness at the hearing—testified that he searched the
purse following Brazda's arrest "to check it for any stolen items, and that's when I located
the small baggie." The prosecutor asked Officer Ligon if he was searching for stolen
perfume bottles, and Officer Ligon responded, "Yes."


       On cross-examination, Officer Ligon agreed that Brazda did not have the ability to
access a weapon or to destroy evidence after she was arrested and placed in his patrol
vehicle. He also acknowledged that all of the items that had been reported stolen had
been found by the time he searched Brazda's purse. On redirect examination, Officer
Ligon clarified that this was a "search incident to arrest" and "there was . . . a possibility
there could have been things [in the purse] that they didn't see that could have been
stolen." Moreover, the officer expressly testified that when he searched the purse, he was
looking for stolen items.


       Defense counsel argued that it was not reasonable for Officer Ligon to look inside
the purse after all of the items reported to be stolen from Walmart had been recovered. In
response, the State argued that this was a reasonable search of a vehicle incident to arrest

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and that Officer Ligon could look for "evidence of the crime for which the defendant was
arrested." In addition, the State briefly mentioned that the methamphetamine would have
been inevitably discovered during an inventory search of the purse at the jail. Defense
counsel objected to this argument on the basis that the State had not presented any
evidence supporting this exception to the warrant requirement.


       At the end of the hearing, the district court referred to the case of State v. Ritchey,
56 Kan. App. 2d 530, 432 P.3d 99 (2018), which it suggested may be "on point." Also,
before taking the issue under advisement, the district court noted:


               "Obviously, the search of the car itself and what was found in the car was within
       the exceptions and proper. It's just extending that to a purse after the theft items were
       found that makes it tricky, and I want to make sure that I've—I want to look at that a little
       more closely so we can make—have the right result here."


       The next day, the State filed a closing memorandum, asserting that Ritchey is
distinguishable from this case. The State requested that the district court deny the motion
to suppress, noting that "[t]his appears to be a classic case of an officer, who has probable
cause of a crime having been committed, arresting the defendant for said crime, that
finding evidence of said crime in the vehicle, continued to search the vehicle for
additional evidence." In her response, Brazda argued that the officer did not have legal
justification to search her purse after she had been secured in the patrol vehicle and all
items reported stolen had been recovered from the vehicle.


       On October 11, 2019, the district court issued a memorandum decision. Not only
did the district court suppress the evidence, it also dismissed the case. In doing so, the
district court found that because the items reported stolen had been found, "there was no
probable cause to keep searching for other things." The district court also rejected the
State's argument under the "inevitable discovery" doctrine because "[t]here was no


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testimony about jail procedures or inventory searches . . . ." Thereafter, the State timely
appealed.


                                          ANALYSIS

       Although the State divides its argument into two parts, the sole issue on appeal is
whether the district court erred in granting the motion to suppress and dismissing the
complaint. In support of its position, the State argues that the district court improperly
applied a probable cause standard to a search incident to arrest. Moreover, the State
argues that the district court erred in finding that Officer Ligon "clearly testified on direct
that he had no reason to believe there were any other stolen items in the purse before he
searched it." In response, Brazda contends that the district court properly granted her
motion. Specifically, she argues that the State has failed to show that the officer was
allowed to search her purse following her arrest.


       The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. State v. Doelz, 309 Kan. 133, 140, 432 P.3d 669 (2019).
Warrantless searches are per se unreasonable unless they fall within an exception to the
warrant requirement. State v. Hubbard, 309 Kan. 22, 33, 430 P.3d 956 (2018). The State
bears the burden to show that a challenged search or seizure was lawful. State v. Parker,
309 Kan. 1, 4, 430 P.3d 975 (2018). Here, the State relies on the search incident to arrest
exception to the warrant requirement. See Doelz, 309 Kan. at 140. Although the State
argued inevitable discovery below, it has not preserved this exception on appeal.
Accordingly, we will address only the search incident to arrest exception in this opinion.
See State v. James, 301 Kan. 898, 909, 349 P.3d 457 (2015).


       In Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), the
United States Supreme Court addressed the search incident to arrest exception in the
context of the search of a vehicle. In Gant, the Supreme Court recognized that law

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enforcement officers have the authority to conduct a warrantless search of an automobile
incident to arrest in two specific circumstances: (1) when the arrestee is not secured and
is within reaching distance of the passenger compartment of the vehicle at the time of the
search; and (2) when it is reasonable to believe the evidence relevant to the crime of
arrest might be found in the vehicle. 556 U.S. at 343 (quoting Thornton v. United States,
541 U.S. 615, 632, 124 S. Ct. 2127, 158 L. Ed. 2d 905 [2004]). Similarly, the Kansas
Supreme Court has found that a search incident to a lawful arrest is justified when it is
reasonable to believe evidence of the crime of arrest may be found in the vehicle. State v.
Torres, 308 Kan. 476, 484, 421 P.3d 733 (2018) (citing Gant, 556 U.S. at 343-44).


       Since Brazda was secured in the patrol vehicle at the time Officer Ligon found and
searched her purse, only the second circumstance identified in Gant is relevant in this
case. Here, the State maintains that it was reasonable for the officer to believe that
evidence tied to the crime of arrest might be found in the vehicle. See 556 U.S. at 343. Of
significance here, Gant requires only a reasonable suspicion—not probable cause—that
evidence of the crime would be found in the vehicle following an arrest. 556 U.S. at 343-
44. With probable cause already established for the arrest, the officer need only establish
a reasonable suspicion that evidence of the crime will be found in the vehicle. Torres,
308 Kan. at 484.


       The standard of review for a district court's decision on a motion to suppress has
two components. First, we review the district court's factual findings to determine
whether they are supported by substantial competent evidence. Second, we review the
district court's ultimate legal conclusion under a de novo standard. In reviewing the
factual findings, we do not reweigh the evidence or assess the credibility of witnesses.
State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015). However, when the material
facts supporting a district court's decision on a motion to suppress evidence are not in
dispute, the ultimate question of whether to suppress is a question of law over which an


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appellate court has unlimited review. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966
(2018).


       The testimony offered by Officer Ligon at the suppression hearing is not in
dispute. He testified that he found a purse on the floorboard near where Brazda had been
sitting. He also testified that he did not believe the items reported stolen were in the
purse. Rather, Officer Ligon testified that he searched Brazda's purse because he believed
"there was also . . . a possibility there could have been things else that [the Walmart
employees] didn't see that could have been stolen."


       The State contends that the district court erred when it applied a probable cause
standard rather than a reasonable suspicion standard in suppressing the evidence found in
Brazda's purse. Based on our review of the record on appeal, we agree. After taking the
issue under advisement and allowing the parties to brief the issue following the hearing,
the district court issued a memorandum decision suppressing the evidence and dismissing
the case. In doing so, the district court explicitly ruled that "there was no probable cause
to keep searching for other things." (Emphasis added). Thus, we conclude that the district
court applied the wrong legal standard. See Gant, 556 U.S. at 343-44, 347; see also
Torres, 308 Kan. at 485-86.


       We recognize that the district court did not have the benefit of seeing the United
States Supreme Court's decision in Kansas v. Glover, ___ U. S.___, 140 S. Ct. 1183, 206
L. Ed. 2d 412 (2020), because it was not decided until several months after the
suppression hearing. Nevertheless, we find that Glover provides guidance to courts in
applying the reasonable suspicion standard in cases such as this one. Recognizing that
sometimes the distinction between probable cause and reasonable suspicion is blurred,
the Supreme Court clarified that "[t]he reasonable suspicion inquiry 'falls considerably
short' of 51% accuracy, see United States v. Arvisu, 534 U.S. 266, 274, 122 S. Ct. 744,
151 L. Ed. 2d 740 (2002), for, as we have explained, '[t]o be reasonable is not to be

                                              7
perfect,' Heien v. North Carolina, 574 U.S. 54, 60, 135 S. Ct. 530, 190 L. Ed. 2d 475
(2014)." Glover, 140 S. Ct. at 1188.


       In explaining the test for reasonable suspicion, the Glover court held:


               "Because it is a 'less demanding' standard, 'reasonble suspicion can be established
       with information that is different in quantity or content than that required to establish
       probable cause.' Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d
       301 (1990). The standard 'depends on the factual and practical considerations of everyday
       life on which reasonable and prudent men, not legal technicians, act.' Navarette[, 572
       U.S.], at 402, 134 S. Ct. 1683 (quoting Ornelas v. United States, 517 U.S. 690, 695, 116
       S. Ct. 1657, 134 L. Ed. 2d 911 [1996]). Courts 'cannot reasonably demand scientific
       certainty . . . where none exists.' Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673,
       145 L. Ed. 2d 570 (2000). Rather, they must permit officers to make 'commonsense
       judgments and inferences about human behavior.'; see also Navarrette[, 572 U. S.] at
       403, 134 S. Ct. 1683 (noting that an officer '"need not rule out the possibility of innocent
       conduct'")." Glover, 140 S. Ct. at 1188.


       We also note that the facts in Ritchey—which the district court relied upon in
suppressing the evidence in this case—are distinguishable from the facts of this case. In
Ritchey, the defendant was arrested for an outstanding warrant, and a search of her purse
incident to arrest led to the discovery of methamphetamine. Unlike the present case, the
officer in Ritchey did not express any belief that the purse contained evidence of the
crime of arrest. 56 Kan. App. 2d at 537. Instead, the search was more akin to an
inappropriate general "rummaging through" of personal belongings. 56 Kan. App. 2d at
541. Thus, in Ritchey, neither of the circumstances identified in Gant applied, and the
evidence found in the purse was appropriately suppressed.


       Finally, we conclude that the district court's finding in its memorandum decision
that "the officer clearly testified on direct that he had no reason to believe there were any
other stolen items in the purse before he searched it" is not supported by substantial

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competent evidence in the record. Unlike the district court, we have the benefit of
reviewing a transcript of the testimony of Officer Ligon at the hearing. A review of the
transcript from the suppression hearing reveals that although Officer Ligon
acknowledged that the three perfume bottles and the Bluetooth keyboard that had been
reported stolen had already been recovered, he testified on direct that the reason he
searched the purse was "to check it for any stolen items . . . ." Then, he clarified on
redirect that this was "search incident to arrest" and he believed "there was . . . a
possibility there could have been things [in the purse] that they didn't see that could have
been stolen." In other words, the officer testified that he believed that there might be
other items stolen that the Walmart employees did not see taken. Accordingly, we find
nothing in the transcript that could be construed as a clear statement that the officer did
not believe there might be stolen items in the purse.


       In conclusion, we find that the district court applied the wrong legal standard in
suppressing the evidence found in Brazda's purse after her arrest. Moreover, we find that
the district court's finding "that the officer clearly testified on direct that he had no reason
to believe there were any other stolen items in the purse before he searched it" was not
supported by substantial competent evidence in the record. As a result, we reverse the
order suppressing the evidence and dismissing the charges against Brazda. Furthermore,
we remand this case to the district court to reconsider its previous ruling under a
reasonable suspicion standard.


       Reversed and remanded for further proceedings.




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