                                          No. 117,992

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      STATE OF KANSAS,
                                         Appellant,

                                               v.

                                    ERIC WAYNE KNIGHT,
                                          Appellee.


                                SYLLABUS BY THE COURT

1.
         As a general rule, appellate review of a district court's ruling on a motion to
suppress must be based solely on the evidence presented at the suppression hearing.


2.
         Warrantless searches by police are considered unreasonable unless a recognized
exception permits them.


3.
         The automobile exception to the warrant requirement authorizes the warrantless
search of a lawfully stopped vehicle where there is probable cause to believe the vehicle
contains contraband or evidence of a crime.


4.
         Probable cause to search a vehicle exists when the totality of the circumstances
indicates there is a fair probability that the vehicle contains contraband or evidence of a
crime.




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5.
        The scope of a warrantless search of an automobile is defined by the object of the
search and the places in which there is probable cause to believe that it may be found.



        Appeal from Barton District Court; RON SVATY, judge. Opinion filed May 18, 2018. Reversed
and remanded.


        Douglas A. Matthews, assistant county attorney, Amy J. Mellor, county attorney, and Derek
Schmidt, attorney general, for appellant.


        Lisa A. Beran, of Law Office of Lisa A. Beran, of Great Bend, for appellee.


Before STANDRIDGE, P.J., HILL and BUSER, JJ.


        STANDRIDGE, J.: This is an interlocutory appeal by the State from an order
suppressing evidence. For the reasons stated below, we reverse the district court's order
and remand for further proceedings.


                                                FACTS

        While on road patrol in the early afternoon of October 4, 2016, Barton County
Sheriff's Deputy Sierra Thorne observed a black Pontiac Firebird with a Colorado license
plate bearing a 2016 registration sticker. Uncertain as to whether the car registration had
expired, Thorne contacted her dispatcher and relayed the car's license plate number. After
the dispatcher told her the plate registration had expired, Thorne activated the emergency
lights on her patrol car and stopped the vehicle. Leaving her patrol car, Thorne
approached Eric Wayne Knight, the driver of the vehicle, and requested he produce his
driver's license and vehicle insurance information. Knight gave Thorne a Colorado




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driver's license, but he told her it was not valid. Knight also was unable to produce any
documentation to prove that his vehicle was insured.


       A woman later identified as Erica Arnold was a passenger in the front seat of the
car. The car was an older T-top model. The T-tops were not attached, and Deputy Thorne
had a view looking down into the interior of the car. While talking to Knight, Thorne
observed that Arnold, who was wearing a tight top and loose pants, had a 1-inch bowl
and part of the cylinder of a greenish-white glass pipe tucked in her waistband. Thorne
immediately recognized the bowl and cylinder as drug paraphernalia of the type used to
smoke methamphetamine. After advising Arnold that she could see the pipe, Thorne
directed Arnold not to touch it. Thorne then walked around to the passenger side of the
car. At this point, Thorne asked both Arnold and Knight to exit the car and sit down on
the ground. Thorne then removed the glass pipe from Arnold's waistband.


       After directing Knight and Arnold to exit the car, Deputy Thorne searched it.
Thorne's search of Knight's car brought additional contraband to light. Inside the middle
console between the front seats, Thorne found a plastic container with a green leafy
substance inside it. Thorne also found a white pill and a circular object that contained a
brown liquid; both of these items were found in the console. The only other contraband
found in the console was a small plastic cylinder filled with a crystal white substance.
When Thorne searched the glove box, she found a large blue cylindrical tube that
contained a green leafy substance.


       Knight was charged with possession of methamphetamine, possession of
marijuana, possession of drug paraphernalia, and various traffic violations. Knight was
bound over for trial after a preliminary hearing. Knight then filed a motion to suppress
the narcotics and paraphernalia seized from the car, asserting that this contraband was
seized as the result of an unlawful search. The district court held an evidentiary hearing
on the motion to suppress. Relevant to the issue presented on appeal, Knight argued at the


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hearing that Deputy Thorne did not have probable cause to search his car. The State
disagreed, asserting that Thorne's observation of paraphernalia on Arnold's person, in
combination with Thorne's training and experience, established the necessary probable
cause to search the car.


       After hearing the evidence and counsels' arguments, the district court found
Deputy Thorne's discovery, in plain view, of the glass bulb item tucked in Arnold's
waistband provided reasonable suspicion to believe that there may have been additional
drug paraphernalia or drugs in the car but that the law was "in flux" as to whether the
discovery in plain view of drug paraphernalia on the person of a passenger riding a
vehicle established probable cause to search the driver's vehicle. Based on the lack of
clear authority, the district court granted the motion to suppress. A brief journal entry was
filed three days later.


                                         ANALYSIS

       On appeal, the State claims the district court erred in suppressing the evidence
found in Knight's car. Specifically, the State argues that consideration of the totality of
the circumstances in this case establish that Deputy Thorne had the necessary probable
cause to search Knight's car.


       A district court's decision on a motion to suppress is subject to a bifurcated
standard of review. The appellate court reviews the district court's factual findings to
determine whether they are supported by substantial competent evidence. State v.
Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016). Substantial competent evidence is
evidence that is both factually and legally relevant and sufficient for a reasonable person
to rely upon it to support a conclusion. State v. Talkington, 301 Kan. 453, 461, 345 P.3d
258 (2015). In reviewing the factual findings, the appellate court does not reweigh the
evidence or assess the credibility of witnesses. Patterson, 304 Kan. at 274. If the


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appellate court affirms the district court's factual findings, the appellate court will then
review the district court's ultimate legal conclusion using a de novo standard. State v.
Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).


       In its first claim of error, the State argues the district court ignored or disregarded
key evidence in granting Knight's motion to suppress. The State is referring to evidence
presented during the preliminary hearing in this case, which was held four months before
the hearing on the motion to suppress. At the preliminary hearing, Deputy Thorne
testified that before she searched the car she asked Knight whether there were any drugs
in it. Knight reportedly told Thorne that there was marijuana in the glove box. The State
contends the district court erred in failing to consider this evidence as part of its analysis
in determining whether to suppress the evidence discovered by Thorne while searching
the car.


       But the State's argument fails to acknowledge that the judges presiding over the
preliminary hearing and the hearing on the motion to suppress were different. Judge
Richard Burgess presided over Knight's preliminary hearing. Judge Ron Svaty presided
over the evidentiary hearing on Knight's motion to suppress, which was held four months
after the preliminary hearing. Although Deputy Thorne testified at the preliminary
hearing that she asked Knight—before she started her search—whether there were any
drugs in the car and Knight said yes, evidence of the question asked and the answer given
was not presented at the hearing on the motion to suppress. And notably, the State did not
request a transcript of the preliminary hearing until after filing its notice of appeal; thus, it
is reasonable to infer that Judge Svaty did not have access to the earlier testimony. For
these reasons, we find no error by the district court and our review of the district court's
order suppressing the evidence discovered in the car is limited to the evidence presented
by the State at the suppression hearing. See State v. Jones, 300 Kan. 630, 645, 333 P.3d
886 (2014) (as a general rule, review of district court's ruling on motion to suppress must
be based solely on evidence presented at suppression hearing).


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       In its second claim of error, the State argues that even without evidence of
Knight's admission before the search, the search conducted by Deputy Thorne was
lawful.


       The Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights protect our right to be secure in our person and property from
unreasonable searches or seizures by the government, including law enforcement officers.
Accordingly, warrantless searches by police are considered unreasonable unless a
recognized exception permits them. Kansas has recognized several exceptions to the
Fourth Amendment search warrant requirement: consent, search incident to a lawful
arrest, stop and frisk, probable cause plus exigent circumstances, the emergency doctrine,
inventory searches, plain view or feel, and administrative searches of closely regulated
businesses. State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012). The State has
the burden of demonstrating that the search was lawful. State v. Keenan, 304 Kan. 986,
993, 377 P.3d 439 (2016).


       The probable cause plus exigent circumstances exception applies here. Under this
exception, the police may search without a warrant when they have probable cause to
search—meaning there is a fair probability that the police will find evidence of a crime—
and exigent circumstances. State v. Jefferson, 297 Kan. 1151, 1159, 310 P.3d 331 (2013).
Because the police searched Knight's car, this case falls under a subclass of the probable
cause plus exigent circumstances exception: the automobile exception. This exception
was first recognized in Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed.
543 (1925). Under the automobile exception, the mobility of the vehicle itself provides
the exigent circumstances. Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S. Ct. 2013,
144 L. Ed. 2d 442 (1999); Sanchez-Loredo, 294 Kan. at 51. The vehicle's "'ready
mobility'" is an exigency sufficient to excuse failure to obtain a warrant, so the fact that
the driver of the vehicle and any passengers are no longer in the vehicle at the time of the
search does not make the vehicle immobile so as to eliminate the application of the


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automobile exception. Pennsylvania v. Labron, 518 U.S. 938, 940-41, 116 S. Ct. 2485,
135 L. Ed. 2d 1031 (1996) (automobile exception applied to warrantless search of
defendants' vehicles, even though defendants had already been arrested at time of search).
With exigency established by the automobile exception, we need only to determine
whether the police had probable cause for the search.


       Probable cause to search a vehicle exists when the totality of the circumstances
indicates there is a fair probability that the vehicle contains contraband or evidence of a
crime. Jefferson, 297 Kan. at 1159. Probable cause is "'a fluid concept—turning on the
assessment of probabilities in particular factual contexts—not readily, or even usefully,
reduced to a neat set of legal rules.'" Florida v. Harris, 568 U.S. 237, 244, 133 S. Ct.
1050, 185 L. Ed. 2d 61 (2013). "The probable-cause standard is incapable of precise
definition or quantification into percentages because it deals with probabilities and
depends on the totality of the circumstances." Maryland v. Pringle, 540 U.S. 366, 371,
124 S. Ct. 795, 157 L. Ed. 2d 769 (2003).


       When analyzing the totality of the circumstances to determine whether probable
cause exists, we consider "'all of the information in the officer's possession, fair
inferences therefrom, and any other relevant facts, even if they may not be admissible on
the issue of guilt.'" State v. Ramirez, 278 Kan. 402, 406, 100 P.3d 94 (2004). The Fourth
Amendment permits the use of an officer's training and experience as a factor in the
probable-cause analysis. United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151
L. Ed. 2d 740 (2002) (totality of the circumstances process allows officers to draw on
their own experience and specialized training to make inferences from and deductions
about the cumulative information); Ornelas v. United States, 517 U.S. 690, 699, 116 S.
Ct. 1657, 134 L. Ed. 2d 911 (1996) (reviewing court must give "due weight" to factual
inferences drawn by police officers in making probable cause determinations); State v.
Jones, 300 Kan. 630, 647, 333 P.3d 886 (2014); State v. Fitzgerald, 286 Kan. 1124,



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1129-30, 192 P.3d 171 (2008), overruled in part on other grounds by Sanchez-Loredo,
294 Kan. 50, 272 P.3d 34 (2012).


          In United States v. Ross, 456 U.S. 798, 821-24, 102 S. Ct. 2157, 72 L. Ed. 2d 572
(1982), the United States Supreme Court refined the automobile exception created in
Carroll by holding that the officers did not need a warrant to open a closed container in a
vehicle when the officers had probable cause to search the entire vehicle. In so holding,
the Ross Court emphasized that the scope of a warrantless search of an automobile "is
defined by the object of the search and the places in which there is probable cause to
believe that it may be found." 456 U.S. at 824.


          Nine years after Ross, the Court was asked in California v. Acevedo, 500 U.S. 565,
573, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991), to decide whether officers needed a
warrant to search a closed container in a vehicle when the officers did not have probable
cause to search the entire vehicle. There, law enforcement tracked a package containing
marijuana to an address, after which they saw a man leave the address with a paper bag
that appeared full, place the bag in the trunk of a car, and drive away. Officers stopped
the vehicle, opened the trunk and bag, and found marijuana. The Court held the rule in
Ross controlled. Unlike Ross, however, the Court noted that the police in Acevedo only
had probable cause to believe a particular container, not the entire vehicle, contained
contraband. As a result, the Court held that the scope of the search in Acevedo extended
only to the container inside the trunk; the police lacked probable cause to believe
contraband was concealed in any other part of the vehicle. 500 U.S. at 579-80. In so
holding, the Court reiterated that the Carroll rule continued to govern all automobile
searches: "The police may search an automobile and the containers within it where they
have probable cause to believe contraband or evidence is contained." Acevedo, 500 U.S.
at 580.




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       Applying the legal principles set forth above to the facts presented here, we find
Deputy Thorne had probable cause to search in those places that ultimately yielded the
evidence subject to Knight's motion to suppress, specifically: (1) the middle console
between the front seats where Thorne found a plastic container with a green leafy
substance inside, the white pill, a circular object that contained a brown liquid, and the
small plastic cylinder filled with a crystal white substance; and (2) the glove box where
Thorne found a large blue cylindrical tube that contained a green leafy substance. Our
finding of probable cause is based on the undisputed fact that Thorne observed—in plain
view—a glass pipe tucked in Arnold's waistband, which Thorne testified she immediately
recognized based on her training and experience as drug paraphernalia of the type used to
smoke methamphetamine. Thorne's discovery in plain view of a glass pipe that Thorne
knew was used to smoke methamphetamine supports a reasonable belief that additional
drug paraphernalia, illegal drugs, or contraband might be found in that part of the
passenger area within reach of Arnold as she was sitting in the passenger seat. This
includes the middle console and the glove box, which is where Thorne discovered the
contraband at issue in Knight's motion to suppress.


       Both of the enclosed areas within which the contraband was found were within
Arnold's reach while she was sitting in the passenger seat. For this reason, it is not
necessary for us to determine whether the totality of the circumstances here would have
permitted Deputy Thorne to conduct a warrantless search of those areas in the car outside
of Arnold's reach. Thus, we intentionally limit our ruling today to the legal issue for
determination under the facts as presented: the totality of the circumstances establishes a
fair probability that additional drug paraphernalia and drugs might be discovered in that
part of the car within Arnold's reach while a passenger in Knight's car. See Jefferson, 297
Kan. at 1159. Because the middle console and the glove box were both places within
Arnold's reach while Arnold was riding in the car, Thorne had probable cause to conduct
a warrantless search in those places for additional drug paraphernalia and drugs. See
Acevedo, 500 U.S. at 579-80 (under automobile exception, scope of search extends only


                                              9
to those places and containers within automobile whether officer has probable cause to
believe contraband or evidence is contained) (citing Carroll, 267 U.S. 132).


      The district court erred in granting Knight's motion to suppress evidence, and the
order of suppression is reversed and the case remanded for further proceedings.


      Reversed and remanded.




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