State v. Fortner ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,202
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellant,
v.
SCOT C. FORTNER,
Appellee.
MEMORANDUM OPINION
Appeal from Shawnee District Court; DAVID B. DEBENHAM, judge. Opinion filed July 15, 2022.
Reversed.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellant.
No appearance by appellee.
Before CLINE, P.J., ISHERWOOD and HURST, JJ.
PER CURIAM: The State appeals the district court's decision to suppress evidence
discovered in a search of Scot C. Fortner's truck. After pulling Fortner over for a traffic
violation, officers discovered an open container of liquor on his passenger seat. A search
of his truck revealed methamphetamine and drug paraphernalia in a small black case
behind the driver's seat. The district court suppressed the evidence found in the case after
finding it unreasonable for the officers to have expected to find an open container in the
case.
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Because the district court found the case was large enough to contain a single-shot
bottle of liquor and the scope of the search extended to any container able to hold the
object of the search, we reverse the district court's order granting Fortner's motion to
suppress.
Motion to suppress hearing
The State charged Fortner with: (1) possession of methamphetamine with intent to
distribute; (2) possession of drug paraphernalia with intent to distribute; (3) failure to stop
when emerging from an alley, building, private road, or driveway; and (4) transporting an
open container. He moved to suppress all evidence obtained in the search of his truck. He
claimed the officers had no probable cause to search his truck since it was not
immediately apparent the seal on the liquor bottle was broken. He also objected to the
scope of the search, claiming the officers had no probable cause to search the small black
case since he contended the case was not a container in which an open container of
alcohol could be found.
The State responded by arguing the warrantless search was lawful under the plain-
view and automobile exceptions to the warrant requirement. The State also contended the
officers did not exceed the permissible scope of the search because a small bottle of
alcohol could have fit in the case.
At the hearing on the motion to suppress, Officer Scott Cowman testified he and
Officer Cody Lawson stopped Fortner after Fortner pulled out of a parking lot at a high
rate of speed, almost striking their patrol vehicle. While Officer Cowman was standing
outside the passenger side of the truck, he observed a brown paper bag containing a clear
bottle with the seal cracked in the passenger's seat, which appeared to be an open
container of alcohol. Inspection confirmed the container inside the bag was a bottle of 99
Bananas, a brand of alcohol. The officers then searched the truck to look for other open
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containers. They looked inside what Officer Cowman described as "a hard-shell zipped
container, commonly referred to as a drug-kit," behind the driver's seat. Inside the
container was a powdery substance Cowman believed to be methamphetamine, a small
digital scale, glass pipes, and a large amount of money.
Officer Cowman said he had experience with alcohol both as a consumer and as a
former employee of a liquor store. In his experience, alcohol containers come in a range
of sizes, "anywhere from what is commonly called a shooter, which would be . . . about
maybe four inches all the way up to what's called a handle, so a gallon." He searched the
case because he believed it was large enough to contain a shooter.
Ultimately, the district court granted Fortner's motion to suppress as it pertained to
the methamphetamine and other items found inside the case. The district court concluded
the officers' seizure of the bottle of 99 Bananas was lawful under the plain-view
exception. The court then discussed the officers' search of the rest of the truck:
"Going to the Automobile Exception, it then gives them the authority to search
the vehicle for other containers containing liquor—open containers, basically. But that's a
reasonable search. That doesn't mean they can search every container that's within the
car. And in this particular case, what they searched was, 'um— . . . It is a small, black,
zippered container. It is probably about six to seven inches long, probably about four
inches wide. Is that roughly it?
"[The Prosecutor]: I believe so, Your Honor.
"THE COURT: The depth on that is probably about two and a half inches.
"I think the officer, Cowman, testified that that was consistent with containers
that are known to contain drugs and paraphernalia. I think when he made his search on
that time—at that time on this particular container, it wasn't reasonable for that to be
expected to have an open container within it. There are open containers that small. They
are the airplane liquor containers we talk about, things of that nature that would certainly
fit in this. But it's not reasonable based on the size of the liquor container that was in the
defendant's front seat, which is—I don't know if that was—it's more than a pint, and I
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don't know if that was four-fifths of a pint or in between that, but it's a much larger bottle
than would be in this particular container here. So I find that the search of this container
was basically, because it was the same type of container that's known to the officers to
contain drugs and drug paraphernalia, and it wasn't reasonable to open it up to search for
open containers of liquor. Had they brought this to a neutral magistrate for a search
warrant, they would not have gotten a search warrant to open this container for drugs or
for liquor, because there would've been insufficient evidence of probable cause that this
container contained either on that basis without more. So I will sustain the Defendant's
Motion to Suppress this particular evidence, and that is the container that contained the
drugs and the scale."
The State filed an interlocutory appeal of the district court's suppression of the
evidence found in the case, under K.S.A. 2021 Supp. 22-3603.
The district court erred in granting Fortner's motion to suppress.
On appeal, the State argues that the district court erred in granting Fortner's motion
to suppress because the discovery of a pint-size open container of alcohol established
probable cause to search the case since it could have contained an open container of
alcohol such as a shooter. Fortner did not file a brief in response and makes no arguments
on appeal.
When the material facts are undisputed, as here, the district court's decision on
whether to suppress evidence is a question of law subject to unlimited review. State v.
Stevenson, 299 Kan. 53, 57, 321 P.3d 754 (2014).
Both our federal and state Constitutions protect against unreasonable searches and
seizures. The Fourth Amendment to the United States Constitution provides that "[t]he
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated." Section 15 of the Kansas
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Constitution Bill of Rights, in turn, provides that "[t]he right of the people to be secure in
their persons and property against unreasonable searches and seizures, shall be inviolate."
A warrantless search by a police officer is per se unreasonable under the Fourth
Amendment unless the State can fit the search within one of the recognized exceptions to
the warrant requirement. These exceptions are: 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. It is the State's burden to establish that one of these exceptions applies to
justify the search. State v. Doelz, 309 Kan. 133, 140, 432 P.3d 669 (2019).
A subclass of the probable-cause-plus-exigent-circumstances exception is the
automobile exception. The mobility of the vehicle provides the exigent circumstance: If
a vehicle is readily mobile and probable cause exists to believe the vehicle contains
contraband or evidence of a crime, the Fourth Amendment does not require a warrant for
police to search the vehicle. Stevenson, 299 Kan. at 58. The probable cause analysis
reviews the totality of the circumstances to determine whether there is a "'fair
probability'" that the place to be searched contains contraband or evidence. 299 Kan. at
64-65.
The landmark United States Supreme Court case for the automobile exception is
United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). In Ross,
law enforcement received a tip that Ross had completed a drug deal using drugs he kept
in the trunk of his car. Police stopped Ross and searched the interior of his car. They then
searched the trunk and found a brown paper bag containing drugs. The Court upheld the
search, stating: "If probable cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle and its contents that may conceal the
object of the search." 456 U.S. at 825. The Court explained:
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"The scope of a warrantless search of an automobile thus is not defined by the
nature of the container in which the contraband is secreted. Rather, it is defined by the
object of the search and the places in which there is probable cause to believe that it may
be found. Just as probable cause to believe that a stolen lawnmower may be found in a
garage will not support a warrant to search an upstairs bedroom, probable cause to
believe that undocumented aliens are being transported in a van will not justify a
warrantless search of a suitcase. Probable cause to believe that a container placed in the
trunk of a taxi contains contraband or evidence does not justify a search of the entire
cab." 456 U.S. at 824.
Likewise, the Kansas Supreme Court has held that "when police officers have
made a lawful stop of a vehicle and have probable cause to believe that contraband is in
the vehicle the officers may search every area of the vehicle and its contents which might
reasonably contain the contraband, without the necessity of first obtaining a warrant."
State v. Jaso, 231 Kan. 614, 622, 648 P.2d 1 (1982).
The United States Supreme Court and Kansas courts have explained that under the
Fourth Amendment, an officer's subjective belief is irrelevant in establishing probable
cause. Instead, it is the objective facts that govern the reasonableness of an officer's
actions. See, e.g., Brigham City, Utah v. Stuart, 547 U.S. 398, 404, 126 S. Ct. 1943, 164
L. Ed. 2d 650 (2006) ("An action is 'reasonable' under the Fourth Amendment, regardless
of the individual officer's state of mind, 'as long as the circumstances, viewed objectively,
justify [the] action.'"); State v. Beltran, 48 Kan. App. 2d 857, 879, 300 P.3d 92 (2013)
("'[T]he subjective intent of the law enforcement officer is irrelevant in determining
whether that officer's actions violate the Fourth Amendment.' What matters 'is not [the
officer's] state of mind, but the objective effect of his [or her] actions. [Citation
omitted.]'") (quoting Bond v. United States, 529 U.S. 334, 338 n.2, 120 S. Ct. 1462, 146
L. Ed. 2d 365 [2000]).
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Additionally, an officer's training and experience is properly considered as a factor
in a totality of the circumstances analysis of probable cause. State v. Fitzgerald, 286 Kan.
1124, 1130, 192 P.3d 171 (2008), abrogated on other grounds by State v. Sanchez-
Loredo, 294 Kan. 50, 272 P.3d 34 (2012).
In Wyoming v. Houghton, 526 U.S. 295, 302, 119 S. Ct. 1297, 1301, 143 L. Ed. 2d
408 (1999), the United States Supreme Court clarified that the rule laid down in Ross
applies broadly to all containers within a car that may conceal the object of the search,
without qualification as to ownership and without a showing of individualized probable
cause for each container. In that case, an officer conducting a traffic stop noticed a
hypodermic syringe in the driver's shirt pocket, which the driver admitted using to take
drugs. The officer then searched the car for contraband, removing and searching what
Houghton, a passenger in the car, claimed was her purse. He found drug paraphernalia
there and arrested her on drug charges.
As the Court explained: "'The critical element in a reasonable search is not that
the owner of the property is suspected of crime but that there is reasonable cause to
believe that the specific "things" to be searched for and seized are located on the property
to which entry is sought.'" 526 U.S. at 302.
"When there is probable cause to search for contraband in a car, it is reasonable for police
officers—like customs officials in the founding era—to examine packages and containers
without a showing of individualized probable cause for each one. A passenger's personal
belongings, just like the driver's belongings or containers attached to the car like a glove
compartment, are 'in' the car, and the officer has probable cause to search for contraband
in the car." 526 U.S. at 302.
Thus, under Houghton, there is no need to show evidence that a specific container
holds the object of the search, so long as it is in the car and able to contain the
contraband.
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Here, the district court determined the plain-view exception applied to the seizure
of the bottle. It also found the automobile exception authorized the officers to search the
truck for other open containers, since they had discovered an open container in the truck.
But it then concluded the search was limited to containers able to conceal an open
container of similar size to the open container the officers had found. Even though the
court found the case was large enough to contain a shooter, which would qualify as an
open container if open, it found it unreasonable for the officers to be searching for a
shooter based on the size of the open container already discovered.
The State argues the district court erred in suppressing the evidence because the
scope of this search properly extended to any alcoholic beverage in an opened package or
container—not just other bottles of 99 Bananas or similar sized containers. It contends
the officers were justified in searching any container able to contain an alcoholic
beverage of any size. Because the officers performing the search knew that alcohol came
in small containers (shooters), they were thus entitled to look in any container large
enough to contain a shooter, including the case.
The State relies on State v. Myers, 10 Kan. App. 2d 266, 697 P.2d 879 (1985). In
Myers, the defendant challenged the scope of a search conducted under a warrant. The
search warrant authorized a search of Myers' house for amphetamines. The issue in that
case was whether the officer's search of Tylenol bottles and other prescription bottles was
reasonable, given the object of the search. In rejecting Myers' claim that the search of the
bottles exceeded the scope of the warrant, the court noted that one officer who conducted
the search testified that amphetamines can be in powder, tablet, or capsule form. Thus,
under Ross, the search was reasonable, since the small size of the drugs justified looking
in small containers such as the bottles. "Further, it appear[ed] logical that a search for
amphetamines would include a search of pill bottles." 10 Kan. App. 2d at 273.
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The State argues that, just as amphetamines can be possessed in different forms, so
too can alcohol containers. And like in Myers, Officer Cowman testified that alcoholic
beverages can be bought in containers small enough to fit inside the case at issue.
The State also cites several cases from other jurisdictions dealing with the scope of
warrantless searches of containers in vehicles stemming from an officer's discovery of an
open container of alcohol in the vehicle.
In State v. Daily, 164 Idaho 366, 429 P.3d 1242 (Ct. App. 2018), an officer
stopped Daily after observing him commit several traffic offenses. During his initial
contact with Daily, the officer noticed an open can in the vehicle and suspected it was an
alcoholic beverage. A later records check revealed that Daily had an outstanding warrant,
and he was arrested. Officers then searched Daily's vehicle, retrieving the can. Another
empty can was found on the passenger-side floor and other unopened alcohol containers
were found in the back seat. The officers then searched the glove box and discovered
methamphetamine and other drug paraphernalia. Daily moved to suppress all evidence
seized from the vehicle, which the district court granted.
The district court concluded the search of the glove box was outside the scope of
the search allowed under the automobile exception, because the officer did not question
Daily to determine how many drinks he may have had while driving or if there may be
further open containers in the car and did not observe liquid or alcoholic odor emanating
from either the vehicle or glove box suggesting that another container may be present.
The district court also noted that, although the officer testified that he had discovered an
open container in a glove box, the officer clarified that this container could be resealed; it
was not a non-resealable can such as those found in Daily's vehicle. Thus, the district
court determined no reasonable person would conclude that an open container would be
present in the glove box and no magistrate, presented with these facts, would have found
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probable cause to support issuing a search warrant for the glove box, had one been
requested.
On appeal, Daily did not argue the officers lacked probable cause to search his car
for more open containers or that an open container could not fit in his glove box. Instead,
he argued the automobile exception did not permit the warrantless search of the glove
box because no reasonable person would conclude that an open container would be
present in a glove box. In rejecting this argument and reversing the district court's
decision, the Idaho Court of Appeals stated:
"While Daily did not provide any incriminating statements related to 'how many drinks
he may have had while driving' or whether there were 'further open containers in the car,'
such information was not required in order for the automobile exception to encompass
the glove box because specific probable cause vis-à-vis the glove box was not required
under Ross and Houghton. The sole inquiry was whether the glove box might hold an
open container. The district court did not find, and Daily does not identify, any evidence
demonstrating that the glove box could not hold an open container. Thus, there is no basis
from which this Court can conclude that the search of the glove box in this case was
constitutionally unreasonable." Daily, 164 Idaho at 369-70.
The State likewise argues that, under Houghton, no showing of individualized
probable cause was required for the officers to search any container found in Fortner's
car.
The State next cites to People v. McGhee, 162 N.E.3d 1080 (Ill. 2020). In
McGhee, the defendant was pulled over for a traffic violation with several passengers in
the car. Before approaching the car, the officer observed the front seat passenger moving
in a way that resembled putting something in the glove box. Upon approaching the
vehicle, the officer observed multiple open containers in the vehicle. After searching the
vehicle for more open containers, the officers located a six-pack on the floor with four
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sealed beers in it. Together with the open containers, the entire six-pack was accounted
for. The officers then continued the search, finding a firearm and other contraband in the
locked glove box. The district court denied McGhee's motion to suppress the evidence
found in the glove box.
On appeal, McGhee argued that the officers' search of the locked glove box for
open containers of alcohol was not justified because it was not reasonable to believe that
open containers of alcohol would be found in the glove box where the officers had
accounted for all six bottles from the package. The Illinois Court of Appeals rejected this
argument, finding that the district court properly denied the motion to suppress because
the officers had probable cause to search the glove box. 162 N.E.3d at 1088. Under the
automobile exception, the officers could search any part of the passenger compartment of
the vehicle where there was probable cause to believe that open containers of alcohol
could be found, including the locked glove box. The officer testified that an open bottle
of beer that had been resealed could fit in the glove box on its side and testified that he
observed the front seat passenger make movements consistent with placing something in
the glove box. The officers did not have to assume that no more open containers of
alcohol other than the six-pack of beer were present in the vehicle. There could have been
open containers of types of alcohol other than beer in the vehicle as well. Finally, the
officer testified that the bottles of beer he observed could have been resealed by having
the cap screwed back on and would have fit in the glove box on their sides. 162 N.E.3d at
1088.
The court in McGhee stated that the scope of the search did not terminate once the
entire six-pack had been accounted for; other types of alcohol could have been found in
the vehicle and probable cause existed to look for other containers. 162 N.E.3d at 1088.
Finally, the State cites State v. Rincon, 970 N.W.2d 275 (Iowa 2022). In that case,
police encountered a stolen car parked near an apartment complex with four passengers
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inside. An individual who appeared to be the driver was walking from the apartment
complex toward the car. The officers observed a half-empty bottle of liquor on the
driver's seat and another open container of liquor standing on the rear seat floorboard.
The officers ordered the passengers out of the car, one of whom tried to take her
backpack with her. While doing so, one of the officers saw what he believed to be a bag
of marijuana sticking out of the backpack. A subsequent search of the backpack
confirmed this. In the ensuing criminal proceeding, the passenger moved to suppress the
results of the search of her backpack. The district court denied the motion, concluding
that the automobile exception applied.
On appeal, the primary issue was whether the passenger's backpack remained
subject to the automobile exception when it was removed from the vehicle before the
search. The Iowa Supreme Court affirmed the district court, refusing to hold that the
removal of the bag from the car after probable cause arose removed it from the scope of
the automobile search. 970 N.W.2d at 285. In reaching this conclusion, the court also
concluded that the backpack was large enough to conceal an open container. While
Rincon did not contest that her backpack was large enough to be subject to the search, the
court opined on the permissible scope of containers that could have been searched. The
court noted that "[a]ny container in the vehicle that could hold an alcoholic beverage—
even a flask or a miniature bottle—would be fair game." 970 N.W.2d at 281. The court
then stated:
"A final, potential question is whether the pockets of Rincon's backpack were the
type of container that could have held contraband. Rincon does not contest this point
here, and she did not contest it below. Implicitly, she concedes here—and she implicitly
conceded below—that if the automobile exception applies, the search of the backpack
was valid. In granting the State's motion to reconsider its initial decision to suppress the
results of the search of the backpack, the district court simply relied on United States v.
Ross and [State v. ]Eubanks[, 355 N.W. 2d 57 (Iowa 1984),] to hold that 'Rincon had no
expectation of privacy that would have precluded law enforcement from searching the
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containers within the detained vehicle, which included her backpack.' Regardless, on our
de novo review, the front pocket of the backpack (where the bag of marijuana was
protruding) was large enough to hold at least a single-shot bottle of liquor. And, in any
event, the plastic bag of marijuana was spotted in plain view before the officers even
began searching the inside of the backpack." 970 N.W.2d at 285-86.
Thus, according to Daily and McGhee, the discovery of an open container justifies
a search of any container in the vehicle which could hold an open container, with no
differentiation as to the type. Rincon also extends this principle to its logical end by
saying this includes any container able to hold a shooter.
Here, the district court conceded that the case could contain a shooter and that an
unsealed shooter would qualify as an open container but concluded this was not enough
to justify the search. The court found that although the case could theoretically contain an
open container—a shooter—"at that time on this particular container, it wasn't reasonable
for that to be expected to have an open container within it." The district court appeared to
be impermissibly requiring a showing of individualized probable cause to search the case.
Because the district court found that probable cause existed to search the car for more
open containers and found that the case was large enough to hold an open container, the
officer's search of the case was lawful.
Based on the broad application of the automobile exception under Ross and
Houghton—as evidenced in Myers and the cases from other jurisdictions cited by the
State—we find the court erred in suppressing the methamphetamine and paraphernalia
found in the black case.
Reversed.
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