Description: Topeka, Kansas criminal defense lawyer represented Defendant charged with drug possession.


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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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:

"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]).

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.

Outcome: Reversed.

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