Petition — Van Pelt v. Kansas

Supreme Court brief1978

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| = JUL «26 j978

IN THE | MICHAEL RoDA

on erteeeneemeeiene:

aK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

78-146

PERL G. VAN PELT,

LARRY WAYNE SODERLUND and

RONNIE TORKELSON

Petitioners,

against

STATE OF KANSAS

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF KANSAS

Charles S. Scott

Counsel for Petitioners

724% Kansas Avenue

Topeka, Kansas 66603

(913) 233-0514

Scott, Scott, Scott and Scott

July 24, 1978

FEEFELEPEEEEEEEERE

INDEX

GusSCiGRS BOW. cccccccceccceses beneesce &

BE EE ee ae ie ss) ae

Question Presented......ccccece seeGeeae 3

Statutory Authority...... Se eeeecoccceces 4

Statement of the Case: FactS.......e--+- 8

The Stage of the Proceedings Herein

When Federal Question was Raised..... 16

Argument......ecececes Coc ccccececsccccccces 16

Certiorari Should be Granted

Because this Case Turns On

An Issue of Wrongful Search

and Seizure Proscribed Under

the Fourth Amendment to the

United States Constitution

And the Fourteenth Amendment

to the United States

DEC PERL GS geeeseeccecocecce hs

This Was an Exploratory

BOBEEMeccccccccccccccccccccccccccecs 25

The Search Was Conducted

Without The Consent of

Van Pelt, The Owner of

Dt ch cb eb ebebeccscccccccecca®

The Stopping of Van Pelt's

Vehicle Was Pretextual,

Hence Without Probable

Cause to Pursue a War-

Dt Sec cca sees seccococce de

Summary. and ConclusSion......ceeeeeeee ee 40

Appendix 1, The opinion of the Kansas

Court of Appeals........ eoebeeesceces

Appendix 2, Decision dated March 8,

1978, denying petitioners

Application to Modify or to

ROCORSLGOR s cscccccesecseese TeTeTTTe Tr

Appendix 3, Decision dated April

28, 1978, denying Petition for

Review to the Supreme Court of

the State of Kansas..... eccecccccces

Appendix 4, Memorandum Decision of

District Court of Pottawatomie

County, Kansas Denying Petitioners

Respective Motions to Suppress

dated January 25, 1977....... ecccecce

Appendix 5, Journal Entry of Final

Judgement of Conviction rendered

in the District Court of Pot-

tawatomie County, Kansas, dated

Pebruary 21, 1977.ccccccece coeccceoss

Appendix 6, K.S.A. 65-4105(d) and

K.S.A. 65-4127b (b) (3) cccececcs oeee

Appendix 7, K.S.A. 8-1570(3)..ccccccces

Appendix 8, Petitioners Motion to

Suppress Illegally Seized

PCT TT TTT COC ETT CTC

PAGE

12a

15a

l6a

17a

iii

CASE CITATIONS

Amos V U.Se, 255 U.S. ZEB cocsecsece

Brinegar v U.S., 338 U.S. 160......

Bumper v North Carolina, 391 U.S.

Nicnnddebenne 6 66660606 666006666

Cady v Dombrowski, 413 U.S. 433....

Chambers v Maroney, 399 U.S. 42....

Cooper v California, 386 U.S. 58...

Johnson v U.S., 333 U.S. 1lO..ceeee.

Preston v U.S., 376 U.S. 364.......

Schneckloth v Bustamonte, 412

U.S. Ditties asssn ba Cea weceeesekK ener

State v Boster, 217 Kan. 539

~ P.2d 29

State v Dean, 2 K. app. 2d 64,

P.2d (197B) wcccccccccccces

66066066 66000 66466600 e808

State v Van Pelt, No. 49,213, 223

Kan. 2a P.2d e*eeeeee#e#e#ee#ee#e#e*

Taglavore v U.S., 291 F.2d 262.....

Terry V Ohio, 392 U.S. Leecccccccce

U.S. v Brignoni-Ponce, 422 U.S.

us i a a ada ood 6h oe e4beehe Gee

24,

17,

37,

23,

U.S. v Chadwick, U.S.

otshe 247 e*eeeeee#s#s#eeeee

U.S. v Escamilla, 560 F.2d 1229

(StH Cir. L977) wcccccccccccccces

U.S. v McCaleb, 552 F.2d 717

(SG Cav. 3977) ccccescesessseues

U.S. v Short, D. of C. 78

i FF

K.S.A.

- * F

K.S.A.

K. S.A.

STATUTES AND AUTHORITIES

B—-1570 (3) -cccccccccccccccee

22-2402. eee7#we#seee#er#e# eeeeeeeteee

22-2501. eeeee e*eeeeneteeeeeeneteee

yy Lyt) iy Porerrrr eee re eee een

~ ok >) | eseeeee eevee

65-4105 Ca sees eeeeeee eeeeee

65-4127b (b) (3)...

28 U.S.C. 1257 Pore eeeeveee eee

Fourteenth Amendment.......eee-. sae

IN THE ¢

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

PERL G. VAN PELT,

LARRY WAYNE SODERLUND and

RONNIE TORKELSON

Petitioners,

against

STATE OF KANSAS

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF KANSAS

Opinions Below

The opinion of the Kansas Court of

Appeals is reported unpublished under

the name and style, State v Van Pelt,

No. 49,213, reported in 223 Kan. 2d,

Pp.2d , and is annexed hereto

as Appendix No. l.

No opinion was rendered by the Kansas

Court of Appeals on petitioners' ap-

plication to modify or to reconsider,

but the decision dated March 8, 1978,

denying said application is annexed

hereto as Appendix No. 2.

No opinion was rendered on petitioners'

petition for review to the Supreme Court

of the State of Kansas but its decision

dated April 28, 1978, denying said

petition is annexed hereto as Appendix

No. 3.

A memorandum decision of the District

Court of Pottawatomie County, Kansas

(John W. Brookens, District Judge),

dated January 25, 1977, denying

petitioners' respective motions to

suppress was not reported; a copy is

annexed hereto as Appendix No. 4.

Journal Entry of Final Judgment of con-

viction rendered in the District Court

of Pottawatomie County, Kansas, dated

February 21, 1977; a copy is annexed

hereto as Appendix No. 5.

Jurisdiction

The decision of the Kansas Court of

Appeals sought to be reviewed was

dated and entered in the Office of the

Clerk of the Court of Appeals on

February 24, 1978 (Appendix No. l).

Petitioners' application to modify or

reconsider was denied by order of the

Kansas Court of Appeals dated March 8,

1978 (Appendix No. 2).

Petitioners' petition for review was

denied by order of the Kansas Court of

Appeals dated April 28, 1978 (Appendix

No. 3).

The jurisdiction of the United States

Supreme Court to review the final

decision of the Kansas Court of Appeals

and the Supreme Court of the State of

Kansas is conferred by 28 U.S.C. 1257

(3), in that the decision of the Kansas

Court of Appeals affirming the con-

viction of the petitioners' by the

District Court of Pottawatomie County,

Kansas, and the denial of the District

Court of Pottawatomie County, Kansas,

of petitioners’ respective motions to

suppress: illegally seized evidence and

the refusal of the Supreme Court of the

State of Kansas to review the same con-

stituted a denial of these petitioners'

rights and privileges protected under

the Fourth Amendment to the United

States Constitution and those rights,

privileges and immunities protected

under the Fourteenth Amendment to the

United States Constitution.

That said decision of the Kansas Court

of Appeals is contrary and inconsistent

with precedents established by this

Court to the effect that personal

property and effects cannot be seized

under the circumstances of this case

without a lawfully issued search warrant

under proper authority as provided by

law.

Question Presented

Whether it was unlawful for law en-

forcement officers without a search warrant

and without the consent of the owner of a

vehicle to pry open the trunk of said vehicle

and seize therefrom several sacks of freshly

cut green vegetation appearing to be mari-

huana, after said vehicle was randomly

stopped by one of the officers on the pre-

text that it may have knocked down and

damaged a highway sign either on the pre-

vious day or several days previously thereto

which sign appeared to have traces of blue

paint which were of the same color of the

vehicle.

The courts below answered "no".

Statutory Authority

Re Provisions from the United States

Constitution - Fourth Amendment:

"The right of the people

to be secure in their

persons, houses, papers

and effects, against un-

reasonable searches and

seizures, shall not be

violated, and no Warrants

shall issue, but upon

probable cause, supported

by Oath or affirmation,

and particularly describ-

ing the place to be searched,

and the persons or things

to be seized."

ae Provisions from the United States

Constitution - Fourteenth Amendment

in pertinent part reads:

"All persons born or nat-

uralized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United

States and of the State

wherein they reside. No

State shall make or enforce

any law which shall abridge

the privileges or immunities

of citizens of the United

States; nor shall any State

deprive any person of life,

law enforcement officer

finds a firearm or weapon,

or other thing, the pos-

session of which may be

a crime or evidence of

crime, he may take and

keep it until the com-

pletion of the questioning,

at which time he shall

either return it, if law-

fully possessed, or arrest

such person."

liberty, or property, with-

out due process of law; nor

deny to any person within

its jurisdiction the equal

protection of the law."

Provisions from the Kansas Statutes b. K.S.A. 22-2501:

Annotated pertinent to this petition

as follows: "Search without search war-

rant. When a lawful arrest

is effected a law enforce-

ment officer may reasonably

search the person arrested

and the area within such

person's immediate presence

for the purpose of (a) Pro-

tecting the officer from

attack; (b) Preventing the

person from escaping; or

instrumentelities, or evi-

dence of the crime.

a. K.S.A. 22-2402:

"Stopping of suspect. (1)

Without making an arrest,

a law enforcement officer

may stop any person in a

public place whom he rea-

sonably suspects is com-

mitting, has committed or

is about to commit a crime

and may demand of him his

name, address and an ex-

planation of his actions.

(2) When a law enforcement

officer has stopped a per-

son for questioning pur-

suant to this section and

reasonably suspects that

his personal safety requires

it, he may search such per-

son for firearms or other

dangerous weapons. If the

Cc. 7 & 22-2502:

"Search warrants; issuance;

proceedings authorized. (a)

A search warrant shall be

issued only upon the writ-

ten statement of any person

underoath or affirmation

which states sufficient to

show probable cause that a

crime has been or is being

committed and which par-

ticularly describes a per-

son, place or means of

conveyance to be searched

and things to be seized,

and if the magistrate is

satisfied that grounds for

theapplication exist or

that there is probable

cause to believe that they

exist, the magistrate

may issue a search warrant

for the seizure of the

following:

(1) Any things which have

been used in the commission

of a crime, or any contra-

band or any property which

constitutes or may be con-

sidered a part of the evi-

dence, fruits or instrumen-

talities of a crime under the

laws of this state, any other

state or of the United States.

The term "fruits" as used in

this act shall be interpre-

ted to include any property

into which the thing or things

unlawfully taken or possessed

may have been converted.

(2) Any person who has been

kidnapped in violation of the

laws of this state, or who has

been kidnapped in another in

another jurisdiction and is

now concealed within this state,

or any human fetus or human corpse.

(b) Before ruling on a request

for a search warrant, the mag-

istrate may require the affiant

to appear personally and may

examine under oath the

affiant and any witnes-

ses he may produce: Pro-

vided, That such proceed-

ing shall be taken down by

a court reporter or record-

ing equipment and made part

of the application for a

search warrant."

d. K.S.A. 22-3216 in pertinent

part reads:

"Motion to suppress illegally

seized evidence. (1) Prior

to the trial a defendant ag-

grieved by an unlawful search

and seizure may move for the

return of property and to

Suppress as evidence anything

so obtained.

e. K.S.A. 8-1570 (3) - See Appendix 7.

£. K.S.A. 65-4105(d) and K.S.A. 65-

4127 b (b) (3) - See Appendix 6.

Statement of the Case: Facts

Since each of the petitioners were

charged in separate informations initially

in the trial court charging the same

identical offense with the possession and

intent to seel marihuana, alli pleadings

and documents contain the same identical

information and for the convenience of the

Court we are therefore reproducing only

those documents and pleadings with refer-

ence to Perl Van Pelt.

This is a criminal case wherein each

of the petitione.s herein were convicted of

the offense of possession of marihuana with

intent to sell, contrary to K.S.A. 1975

Supp. 65-4105 (d) and K.S.A. 65-4127b (b)

(3). The pertinent statutory sections

under which the petitioners are charged,

K.S.A. 65-4105 (d) and K.S.A. 65-4127b (b)

(3) are set forth in Appendix No. 6.

These appeals are from the sentences

imposed on each of these petitioners on April

4, 1977, to serve a term for a period of

one (1) year and a maximum of ten (10) years.

The appeal is also from the trial court's

order rendered on March 10, 1977, denying

these petitioners motion to set aside the

decision of guilty and for a new trial,

the trial court's order on January 25, 1977,

denying their motion to suppress evidence

and various other trial errors.

When special reference is made to any

one of the petitioners, he will be identified

by his last name. The patrolman, James W.

Owens, will be referred to herein as Owens.

Don Beseau, Chief of Police, hereinafter

will be referred to as the Chief of Police.

Harold Etienne, the deputy sheriff, herein-

after will be referred to as the Deputy.

When referring to page references of the

transcript of the proceedings of the hearing

on the motion to suppress, it will be

abbreviated as follows: Mtn Hearing follow-

ed by the abbreviation TR for transcript

and the page number. When making reference

to the transcript of the trial proceedings

herein, it will be identified with the letter

T referring to trial followed by the abbre-

viation TR for transcript and the page number.

Each of the petitioners, in addition

to one Kenneth Browning, were charged, in

separate informations, with the offense of

possession with the intent to sell marihuana

contrary to the provisions of K.S.A. 1975

Supp. 65-4105 (d) and K.S.A. 65-4127b (b) (3).

Pursuant to an agreement of all pe-

titioners and the prosecution with the ap-

proval of the trial court, all cases were

consolidated for the purpose of trial before

the trial court, thereby waiving trial by

jury (See Journal Entry (Appendix No. 5) and

T TR 4). Accordingly, the matters proceeded

to trial on the 2lst day of February, 1977

(Journal Entry (Appendix No. 5) and T TR 4

and 5).

Upon the completion of the State's

case in chief, each of the petitioners moved

for a judgment of acquittal, with the trial

court sustaining as to Kenneth Browning and

overruling as to the petitioners herein

(T TR 141-146).

Prior to the date of trial herein, each

petitioner filed his separate motion to sup-

press evidence pursuant to K.S.A. 22-3216

(See Appendix No. 4). The motions were

consolidated for the purpose of hearing,

with the approval of the trial court, which

was held on January 13, 1977. Thereafter

on the 25th day of January, 1977, the trial

court rendered his Memorandum Decision Deny-

ing each motion (Appendix No. 4). The same

motions on behalf of the petitioners were

renewed at the trial, which were once again

denied by the trial court (T TR 5 and 146).

Following the trial herein and within the

statutory period, the petitioners filed

their joint motion to set aside the trial

court's decision of guilty and for a new

trial. Thereafter, on the 10th day of March,

1977, pursuant to a hearing thereon, the

trial court denied the petitioners' motion

(Mtn Hearing TR 66 and Appendix 5). Then

on the 4th day of April, 1977, the petitioners

were thereupon sentenced, as aforesaid

(Mtn Hearing TR 74, 79 and 82).

The facts and circumstances leading up

to the filing of the charges herein can be

described as follows:

It was in the wee hours of the morning,

at or about 5:20 or 5:30 a.m., on September

21, 1976, when Owens, an Officer of the St.

Marys, Kansas, Police Department, was patrol-

ing the main street of St. Marys, when he

observed a blue vehicle going west, drag-

ging what appeared to be corn or milo stalks

hanging underneath the vehicle (Mtn Hearing

TR 4-5 and T TR 10). According to a portion

of the testimony of Owens:

"We had had, a few days before

this we had several signs knock-

ed down along the highway by a

blue vehicle. There was a blue

paint left on the signs and I had

took a chance to stop this vehicle

to check and see if there was any

damage to it to see if it might

have been the one involved in this

vandalism deal." (Mtn Hearing TR

5, T TR 10)

The vehicle was a 1962 or 1963 blue Thunder-

bird Ford operated and owned by Van Pelt, one

of the petitioners herein, occupied by the

three (3) other petitioners as passangers

(Mtn Hearing TR 6 and T TR 13)

Owens proceeded to stop the vehicle by

first turning on his flashing red light from

his patrol car (Mtn Hearing TR 6 and T TR ll).

After stopping the petitioners’ vehicle,

Owens ran a check on the license plate.

Van Pelt identified himself by showing his

driver's license and informed Owens that

the tag did not belong to the car, but on

another car owned by him, because he had

recently purchased the car and the title

had not been transferred (Mtn Hearing TR 6

and T TR 12). Owens then asked Van Pelt if

he had in his possession a bill of sale or

some document as evidence to show ownership.

This conversation took place with Van Pelt

and Owens outside of the car. In the mean-

time, Van Pelt returned to his car and sat

down with the door open and commenced

searching through his billfold (Mtn Hearing

TR 6 and T TR 12). During the time Van Pelt

was searching through his billfold, Owens

who was standing outside of the car with the

door open, stated he detected an odor of

green marihuana (Mtn Hearing TR 7 and T

TR 13). Immediately thereafter:

"I radioed the sheriff's office

to ask for a back-up unit. Then

I asked the driver if he would back

his vehicle over into a parking

lot." (Mtn Hearing TR 8 and T TR 15)

Soon thereafter, Etienne, a deputy sheriff

of Pottawatomie County arrived and then

shortly thereafter the Chief of Police of

the St. Mary's Police Department arrived

(Mtn Hearing TR 8 and T TR 17-18). While

waiting for the Deputy and the Chief of

Police to arrive, Owens at the trial

testified with reference to seeking permis-

sion to search the trunk of Van Pelt's car:

Q Did you have any conversation with

the driver, or the passengers in

the —— at this time?

A Yes, I believe I did with the driver.

Q Could you relate this conversation

to the Court .. .?

A I asked him if I could look in the

trunk of his vehicle.

Q What did he say?

A He says, ‘I don't have any way of

opening it.' (T TR 16)

At the hearing on the motion to suppress,

with respect to seeking permission to search

the trunk, Owens gave the following testimony:

Q Okay, what happened next after you

did that?

A We asked the driver of the vehicle

about opening the trunk of his

vehicle.

Who was the driver?

Mr. Van Pelt.

Okay

r Oo FY OD

And he said he had no key for the

trunk; the lock was gone, which

indeed it was. (Mtn Hearing TR 9)

Apparently, after the arrival of the

Deputy and the Chief of Police, Van Pelt

was once again asked for permission to open

the trunk. Owens at the hearing on the

motion to suppress gave this account:

Q Who asked the driver to look in

the trunk?

A I believe I had asked him myself,

if I could look in the trunk, and

he informed me he didn't have a

key to it.

Q What did he say exactly, if you can

remember?

A That he had no way of opening it.

(Mtn Hearing TR 9-10)

At the hearing on the motion to suppress,

the Chief of Police asked for permission to

search the trunk.

"He didn't give permission but he

just stated he had no way of open-

ing it .. ." (Mtn Hearing TR 36)

At the trial, the Chief of Police gave

this account with respect to seeking per-

mission to open the trunk after he arrived:

", . .I asked Mr. Van Pelt about

searching the trunk of the car

and he stated that he didn't have

any key to it." (T TR 47)

When the Deputy and the Chief of Police

arrived, Van Pelt's car had been driven to

the parking lot adjacent to the main street

(T TR 18). The petitioners were directed

to get out of the car and the Deputy frisked

them. As a result of the search no weapons

were found on any of the petitioners. Nor

was there any apprehension that any of the

petitioners would make any threats upon the

officers or any attempt to escape custody

(T TR 19). In the meantime, the Deputy and

the Chief of Police made a search of the

interior of the car and observed corn knives,

a lantern, water jug and other items (Mtn

Hearing TR 36 and T TR 45). The Chief of

Police stated he observed the odor of what

he thought to be marihuana (T TR 45).

Following the frisking of the petitioners,

the search of the interior of the car and the

refusal of Van Pelt to give permission to

search the trunk, the Chief of Police ob-

tained a screwdriver from his car and there-

after, upon his return to the Van Pelt car,

proceeded to insert the screwdriver in a

hole in the trunk and succeeded in opening

it (Mtn Hearing TR 37 and T TR 48). After

opening the trunk, the Chief of Police

stated he observed six (6) gunnysacks and

he opened up one which contained green

vegetation which, in his opinion, was

marihuana. Thereupon he placed all four

(4) petitioners under arrest for posses-

sion (Mtn Hearing TR 37-38 and T TR 48).

The Deputy was directed to administer the

Miranda warning which he did by reading it

from a card (T TR 48-49). The reading of the

warning was presented to the petitioners as

a group and not individually (T TR 92).

Van Pelt drove his car, accompanied by

the Chief of Police following his arrest,

to the police station and then to the sher-

iff's office in Westmoreland, Kansas.

From the very inception of stopping

the Van Pelt car throughout to the moment

that these petitioners were incarcerated

in the county jail at Westmoreland, or at

any time, were they advised that they were

being stopped under any suspicion of being

involved in any vandalism of highway signs,

or otherwise involved in the commission of

any crime whatsoever (Mtn Hearing TR 16-24

and T TR 27). Nor were the petitioners

placed under arrest after Owens detected the

odor of marihuana emanating from Van Pelt's

car (T TR 27).

The Stage of the Proceedings Herein

When the Federal Question was Raised

The constitutional issue of a wrongful

search and seizure of the vehicle in question

was raised by these petitioners when they

filed their respective motions to suppress

illegally obtained evidence (Appendix No.8 )

on or about November 11, 1976.

Again, their motions to suppress were renewed

immediately preceeding the trial on February

21, 1977 (T TR 8). On both occasions the

trial court denied said motions (T TR 8,

Appendix 4).

Argument

1. Certiorari should be granted because

this case turns on an issue of wrongful

search and seizure proscribed under

the Fourth Amendment to the United

States Constitution and the Fourteenth

Amendment to the United States

Constitution.

as The decision herein rendered is in

conflict and inconsistent with

precedents established by this Court.

Be This case raises a substantial Federal

issue.

CERTIORARI SHOULD BE GRANTED BECAUSE

THIS CASE TURNS ON AN ISSUE OF WRONG-.

FUL SEARCH AND SEIZURE PROSCRIBED

UNDER THE FOURTH AMENDMENT TO THE

UNITED STATES CONSTITUTION AND THE

FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION.

The decision of the Kansas Court of

Appeals (Appendixl) indicated that the

initial stop of the petitioners car was

proper under the "stop and frisk" statute,

K.S.A. 22-2402 (1) authorizing an officer

to stop a person whom he reasonably suspects

has committed a crime. In reading the

decision, it is difficult to determine

whether that decision rested upon that ra-

tionale. Assuming that the stop and frisk

theory was utilized, the facts and circumstances

herein removes this case from the orbit of Terry

v Ohio, 392 U.S. 1. There this Court set forth

the criteria (and incidently codified in K.S.A.

22-2402 (1)) to be observed when an officer

seeks to stop and frisk a person. It appears

the first consideration is that the officer

is deserving of the right to search for

weapons in situations where probable cause

to arrest for a crime is lacking. Secondly,

that there is probable cause to believe that

the person has committed or is committing a

crime. Even. then he must be apprised of facts

sufficient to warrant a belief that the per-

son has committed or is committing a crime

and in the absence of that kind of evidence

he is unjustified in making an intrusion

short of an arrest.

The criteria for conducting a warrant-

less search is set forth in K.S.A. 22-2501:

"When a lawful arrest is effected

a law enforcement officer may

reasonably search the person ar-

rested and the area within such

person's immediate presence for

the purpose of (a) protecting the

officer from attack; (b) prevent-

ing the person from escaping; or

strumentalities, or evidence of

the crime."

A proper analysis of the evidentiary

record herein clearly illustrates that the

search of the Van Pelt car was not in com-

pliance with the statutory criteria pre-

scribed in K.S.A. 22-2501, supra.

In the first place, there was no law-

ful arrest. But assuming for the purpose of

argument that a lawful arrest was effected,

there is nothing in this record to show

that the abortive search was for the purpose

of protecting Owens from attack. Moreover,

the evidence is to the contrary. This is

borne out by Owens and the Deputy's own

testimony in their answers illicited on

their cross examinations respectively,

both at the hearing on the motions to suppress

and at the trial. Owens, at the hearing on

the motion to suppress:

Q . - « Now, officer, when you went up,

when you stopped the car and the car

just stopped after he observed your

dome light or flashing light?

A Yes.

Q . » »- And obviously you got out of your

car and walked over to the driver's

side.

A As I got out the driver got out also and

walked back toward me.

Q Toward you. Did he walk normal?

A Yes.

Q Didn't appear to be suspicious or

anything?

A No.

Q . . » Did he have a weapon on his person?

A Not to my knowledge, no.

A cheoie

Q - « - SO at the time you didn't suspect

anything, did you?

A No. (Mtn Hearing TR 18-19)

Q - « e Now, did either one of these

defendants attempt to escape?

A No.

Q - « « Did you have any suspicion that

they were armed or wanted to do you

any harm?

A. No. (Emphasis added) (Mtn Hearing TR 28)

The Deputy at the trial:

Q Now, you didn't have any difficulty

with either of these subjects after

you got over there, did you?

A No, sir.

Q When I say “over there", I'm referring

to the place where the car was stopped.

A No, sir.

Q They all cooperated, didn't they?

A They did. (T TR 110)

Moreover, Owens was even unarmed at the time

Van Pelt got out of his car after being

stopped (Mtn Hearing TR 18). Nor did the

Chief of Police or the Deputy feel the need

to draw weapons when conducting the search

of the petitioners, or at any time during

their participation of the search of the car

or when transporting the petitioners to the

police headquarters and to the county jail.

Moreover, the trial) court, in His Memorandum

Decision (Appendix 4) denying the motion to

suppress made this finding: "All defendants

were polite and docile at all times; none

carried a weapon."

Accordingly, none of the officers were

apprehensive of being attacked, nor pos-

sessed with any fear of the petitioners

escaping.

With respect to the criteria requirement

of discovering the fruits or instrumentalities

Or evidence of the crime, there was none to

be found because of the circumstances.

_ _ It should be borne in mind, that the

initial stopping was based upon the pretext

that the car may have been involved in acts

of vandalism of damaging highway signs.

According to Owens, one of such damaged signs

appeared to have on it blue paint

which was located on the east edge

of St. Marys adjacent to a corn field (Mtn

Hearing TR 5 and 13; T TR 10 and 24). There-

upon, Owens took the risk of stopping the

Van Pelt car because it was blue in color

and was dragging several corn stalks. As

he put it:

". «+ »« I had took a chance to

stop this vehicle to check and

see if there was any damage to

it to see if it might have been

the one involved in this-.vandal-

ism deal." (Mtn Hearing TR 5; T TR 10)

From Owens' own admission, his examination

of the car revealed no damage (Mtn Hearing

TR 16). Notwithstanding, Owens' failure to

discover any damage to the Van Pelt car, —

his justification for stopping the car was

his purported suspicion of the car being

involved in a crime of vandalism. Hence the

fruits or evidence of this particular crime

would be the corn stalks and the car itself.

Ironically enough, however, nothing was done

about seizing the corn stalks, nor was any

inspection made thereof or at the location

of the sign to determine if the stalks, in

fact, were missing from that location.

In a most recent case of the United

States Supreme Court, U.S. v Chadwick,

U.S. (1977), 97 S.Ct. 2476, the

Court said:

"When a custodial arrest is made,

there is always some danger that

the person arrested may seek to

use a weapon, or that evidence may

be concealed or destroyed. To

safeguard himself and others and

to prevent the loss of evidence, it

has been held reasonable for the

arresting officer to conduct a

prompt warrantless ‘search of

the arrestee's person and the

area within his immediate con-

trol' --construing that purpose

to mean the area from within which

he might gain possession of a wea-

pon or destructible evidence."

Albeit, the criteria prescribed in K.S.A. 22-

2501, supra, refers to situations involving

the effecting of a lawful arrest, which is

absent here, but since the initial detention

carried with it all indicia of an arrest,

whether lawful or unlawful, Owens and the

other two (2) officers were thereby required

to comply with the mandate of K.S.A. 22-2501

and K.S.A. 22-2402 (1), supra.

With respect to Owens probable cause

to stop petitioners vehicle initially,

there is a lot to be said of the remoteness

and the vagueness of the relationship of the

stopping and the search. There is no nexus

of the color of the alleged blue paint being

on the damaged highway sign and the color of

petitioners car.

The situation herein is the same as was

held in the most recent case of U.S. v Short,

(D. of C. 78 . F.2d). There a general

description of a burglary suspected broadcasted

over the police radio did not give probable

cause for an officer to search a suspect which

heroin was discovered in the process. The

Court went on to say that the description was

insufficient to narrow the number of suspects

to a level tolerable under the Fourth Amendment.

As here the description of the petitioners car

as being blue would likewise be insufficient

to narrow this vehicle as being suspected

of knocking down highway signs when you con-

sider the large number of blue vehicles that

travel daily upon the highways of these

United States.

This was a random stopping of petitioners

vehicle. It is abundantly clear that this

was a pure and unequivocal random stopping

of petitioners vehicle notwithstanding the

pretext that Owens claimed that he took a

chance to stop this vehicle to check and

see if there was any damage to it to see

if it might have been the one involved in

a vandalism deal.

The instant case is controlled by the

principles announced in U.S. v Brignoni-Ponce,

422 U.S. 873, which involved clearly sus-

picious circumstances for stopping vehicles

coming across the border from Mexico into

the United States bringing into this country

illegal aliens. One of the vital elements

of the Brignoni-Ponce test is whether the

agents had reason to believe the vehicle in

question had come from the border.

The Brignoni-Ponce case was relied on

in U.S. v Escamilla, 560 F.2d 1229 (5th Cir.

1977). There the court condemned the stopping

of a vehicle and a subsequent search suspect-

ed of coming across the Mexican border into

the United States on the suspicion it was

transporting illegal aliens into the country.

After the stopping of the vehicle, the agent

detected a strong odor of marihuana emanating

from the vehicie. Based on these observations

the agent searched the truck and discovered

2,844 pounds of marihuana underneath the bale

of hay. Upon making this discovery, the

defendant there was placed under arrest.

The conviction of the defendant was struck

down based upon the facts and circumstances

presented.

Then again, in a most recent case of

this Court, U.S. v Chadwick, supra, the

Court struck down a seizure of marihuana as

constituting an unlawful invasion by seizing

a foot locker without a search warrant.

The Chadwick case was principally relied

upon in State v Dean, 2 K-app.2d 64, P.2d

(1978). There the defendant when oper-

ating his vehicle was apprehended farspeeding

after being pursued for a considerable dis-

tance by the officer. During the chase the

defendant lost control of his vehicle which

jumbed a curb and crashed into the back of

a parked pickup truck. When the officer

approached the vehicle, he observed the

defendant putting something under the seat.

The defendant was ordered out of his car, he

was searched for weapons, handcuffed and de-

tained until another officer arrived

whereby the defendant was taken into custody.

One of the officers returned to the defendant's

car where he observed an overnite case dir-

ectly under the open door. He thereupon

opened the locked case and discovered four

(4) bags of marihuana. The trial court

overruled defendant's motion to suppress

and on appeal the decision denying the motion

was reversed.

; The Dean case and other similar cases

adjudicated by the Kansas appellants courts

illustratesa more obvious situation provid-

ing probable cause for warrantless searches

than the instant case.

This Was An Exploratory Search

Owens, having satisfied himself that

the car was not involved in any vandalism

activity, he, the Chief of Police and the

Deputy were without any legal authority to

conduct any exploratory search of the car

without a search warrant. The question then

emerges, with respect to the practicality of

procuring a search warrant. It should be

remembered that Owens stated that in the first

instance, when he detected what he believed

to be an odor of freshly cut marihuana

emanating from the car, coupled with his

observance of the paraphernalia within the

interior of the car, was sufficient cause

for him to have placed the petitioners under

arrest (T TR 27). Had he effected an arrest,

the petitioners thereupon would have been

placed under the legal custody of the officer

aamnemmatinntint

which would have authorized him to have

seized the car, permitting it to be removed

to a place for the purpose of protecting the

car and preserving the contents therein.

Under the circumstances herein, the of-

ficer was authorized to impound the vehicle

under K.S.A. 8-1570 (3) which provides:

"When the person driving or in

control of such vehicle is arrested

for an alleged offense for which

the officer is required by law to

take the person arrested before a

proper magistrate without unneces-

sary delay."

It is true that the initial stopping

of the Van Pelt car occurred at or about

5:20 or 5:30 a.m. If the circumstances were

such that the Chief of Police and the Deputy

were called in as was done here, then by the

same token, the District Judge or the Associate

District Judge perhaps could have been ap-

proached with a request, as provided under

K.S.A. 22-2502, to issue a search warrant.

If either officer was to conceive that such

approach, at this ungodly hour of the morn-

ing would have unnecessarily constituted

encroachment upon the private sanctity of the

home of either of the judges, then there was

nothing about the exigencies of the situation,

presented here, to have prevented the im-

pounding of the car as aforestated, incar-

cerating the petitioners, then at some con-

venient time during regular business hours

make application for a search warrant.

The situation, here, is very much akin

to the logic and well reasoned decision reach-

ed in State v Boster, 217 Kan, 539 P.2d 294.

There the principal issue before the Court

concerned the constitutional validity of an

inventory search of a vehicle drived by the

defendant and impounded by the police pur-

suant to defendant's arrest on a traffic

violation. It appeared that a burglary had

occurred where numerous items were stolen.

The following day a patrolman received a

dispatch over the police radio notifying

that two (2) suspicious vehicles were parked

at a certain location. It was reported

that a large amount of coins had been seen

lying on the front of the car. A short time

later the patrolman observed the defendant

driving away with the other car. The patrol-

man proceeded to stop both cars a block away.

The defendant and his passager were ordered

out of the car and frisked. When the de-

fendant could not produce a driver's license

upon request, he was handcuffed and taken to

the police station in the patrol car. At the

police station defendant was unable to post

bond or pay a fine, so he was booked and

jailed. A warrantless inventory search was

made of the car as was customary procedure

prior to impoundment of a vehicle. Pursuant

to the inventory of the car, the police

searched the trunk and found a number of

items, which were later identified as the

property involved in the burglary. In sup-

port of defendant's motion to suppress,

among other grounds, he argued that said

search was conducted without a search war-

rant and without his consent, contrary to the

Fourth Amendment to the United States Con-

stitution and the Bill of Rights of the

Constitution of the State of Kansas, and

to K.S.A. 22-2501.

In reversing the lower court's order

denying defendant's motion to suppress, the

Kansas Court said:

"We do not disapprove the im-

poundment of vehicles under

proper circumstances. We recognize

the necessity of the state to

protect by appropriate inventory

measures both the valuables

of the arrested person and its

possible liability to tort claims.

Nonetheless, the police must

first have legal custody of a

vehicle before making an inven-

tory of its contents.” (Emphasis

Added)

As here, Owens apparently did not feel com-

fortably certain that there was sufficient

evidence to support an arrest of the

petitioners when he first detected the odor

of what he thought was marihuana. Failing

to effect the arrest at that time or any

time prior to the inventory search of the

trunk, the officers did not have legal

custody or even the right to legal custody

of the car which would authorize the war-

rantless search.

In U.S. v Chadwick, supra, Chief Jus-

tice Burger speaking for the majority of

the United States Supreme Court stated:

"In our view, when no exigency

is shown to support the need for

an immediate search, the Warrant

Clause places the line at the

point where the property to be

searched comes under the ex-

clusive dominion of police

authority."

As here, there were no exigency circumstances

shown to the extent that the car and its

contents were about to be removed from this

jurisdiction or be destroyed, which war-

ranted an immediate search. Moreover, the

officers had complete control of the situ-

ation plus the cooperation of the petitioners,

making it most convenient for the officers

to utilize the processes of law to procure

a search warrant. See Chambers v Maroney, 399

U.S. 42; Cooper v California, 386 U.S. 58;

Cady v Dombrowski, 413 U.S. 433.

The sad truth is that there was no re-

lationship between the purpose for stopping

the vehicle and the subsequent search. This

was the basis for the holding in Preston v

U.S., 376 U.S. 364, where this Court gave

its approval to the suppressicn of an ap-

plication to suppress where it appeared

there was no relationship between the arrest

for vagrancy, the reason for seizing and

the reason for searching it.

The S€arch Was Conducted Without The Consent

Of Van Pelt, The Owner of the Vehicle

There can be no doubt that where a per-

son freely gives his consent to a search,

such consent will validate the search with-

out a warrant.

Here, Van Pelt was first. asked by Owens

if he, Owens, could open the trunk. Van

Pelt's reply was he did not have a key to

the trunk (Mtn Hearing TR 9-10). When the

Chief of Police and the Deputy arrived at

the scene, a second request was made, either

by Owens, and perhaps a third request was

made by the Chief of Police. Here the evi-

dence is not clear. But at any rate, Van

Pelt's reply was the same, that he did not

have a key to the trunk. It is interesting

to note that at no time did Van Pelt give

his permission to the Chief of Police, or to

anyone, to use a screwdriver or any other

instrument to gain entrance into the trunk.

Neither did the Chief of Police seek per-

mission to use a screwdriver to gain entrance

into the trunk.

It has been held that mere submission

to authority is not consent. See Johnson

v U.S., 333 U.S. 10; Amos v U.S., 255 U.S.

313.

In Schneckloth v Bustamonte, 412 U.S.

218, the defendant was stopped for a traffic

violation. The officer asked the defendant

whether he could search the trunk. The de-

fendant gave a reply, "Go Head". The Court

was called on to consider the voluntariness

of the consent. Holding that the consent

was not voluntary the Court said:

"When the subject of a search

is not in custody and the State

would justify a search on the

basis of his consent, the Fourth

and Fourteenth Amendments re-

quire that it demonstrate the

consent was in fact coluntary;

voluntariness is to be determined

from the totality of the sur-

rounding circumstances."

The Court further held that the consent must

not be given as the result of duress or

coercion, expressed or implied. Moreover,

the burden is upon the procution to show in

conducting warrantless searches that the

owner or the person in possession of a

vehicle gave a valid consent. This burden

cannot be discharged by showing no more than

acquiescense to a claim of lawful authority.

Bumper v North Carolina, 391 U.S. 543.

The Stopping of Van Pelt's Vehicle Was

Pretextual, Hence Without Probable Cause

To Pursue a Warrantless Search

Here, the threshhold question is whether

Owens had sufficient information when he

stopped the petitioners’ car to reasonably

suspect they had committed a crime. Or,

putting it another way, is whether the dam-

age to highway signs was legally sufficient,

under the circumstances herein reflected,

to support Owens' purpose in stopping the

vehicle, or was the stopping a mere pretext,

later formulated, to serve as a justification

for the warrantless search.

The trial court's memorandum decision

reflects most vividly that he struggled

relentlessly to find the proper rationale

to support his decision denying the motions

to suppress. Accordingly, at one point he

alludes to the "stop and frisk" statute,

K.S.A. 22-2402, supra.

Pursuant thereto, the trial court pro-

ceeded to hold that Owens knew, prior to

stopping the Van Pelt car, that a crime had

been committed; that a highway sign had been

knocked down by a blue colored car, and this

was close by a cornfield. Owens was jus-

tified and acted accordingly, based upon

his suspicion that the vehicle was involved

in such crime (T TR 16). To assess the

correctness or incorrectness of the trial

court's ruling, as well as the good faith

of Owens' suspicion prompting him to stop

the Van Pelt car, we should make a brief

analysis of the facts relating thereto.

Owens, On cross examination at the

trial, testified that he prepared a written

report dated September 21, 1976, reflecting

facts and circumstances relative to the

stopping of the car and all transactions

relating thereto. He was asked to read into

the record the content of his report, with

respect to the damaged highway signs, which

disclosed the following:

Q Would you read it.

A On the 9/21/76, at approximately 5:20 hours,

while on patrol to St. MArys, a Ford T.B.,

bearing Kansas tag, blue in color, was

observed by myself westbound on Bertrand.

I further observed several corn stalks

dragging from the underside of the vehicle.

I was aware several road signs had been

knocked arounty (sic) lately, two of

them being in the St. Marys area; one

of the signs hit and knocked down near

St. Marys had blue paint on the pole.

(Mtn Hearing TR 12-13)

In addition theretu, the Chief of Police pre-

pared a complaint and Report of Investigation

dated September 21, 1976. Pertinent excerpts

therefrom were read into the record:

"Owens stated he had observed the

blue or green-blue Ford westbound

on U.S. 24 (Bertrand Avenue) with

several corn stalks handing from

the undercarriage and dragging the

pavement. Owens made a routine

stop of the vehicle reference high-

way signs that been hit and knocked

down or broken in the area during

the past several weeks. One of

these signs had traces of blue paint

on the broken pole, and the last sign

noted hit and broken was at the east

edge of St. Marys near the end of a

corn field’ (Mtn Hearing TR 1l).

It is clearly noticeable and most sig-

nificant that the statement of Owens reveals

that he was aware of several signs had been

knocked down around the county lately, two

of them being in the St. Mary's area.

One of such signs near St. Marys had traces

of blue paint on the pole. Of equal sig-

nificance, in the report of the Chief of

Police he quotes Owens as saying that high-

way signs had been hit and knocked down or

broken in the area during the past several

weeks. Moreover, there is nothing in either

of these statements to indicate that these

highway signs were damaged as a result of any

criminal activity, be it described as van-

dalism or malicious destruction of public

property. Nor is there any evidence appear-

ing in the record, either at the hearing on

the motion to suppress or at the trial, in-

dicating that the damage to the highway signs

was the result of any criminal activity.

Owens for the first time in his testimony

would mention the word "vandalism" as being

the contributing factor to the sign damage.

Nevertheless, his first and only attempt

was made in his testimony to attribute the

sign damage to acts of vandalism, notwith-

standing that his report, which was prepared

shortly after the occurrence in question,

when all the facts were fresh in his mind,

and he only refers to the sign damage re-

sulting from being knocked down or hit.

Even in the trial court's findings, it is

mentioned:

"His purpose in stopping the

vehicle was to determine whether

this vehicle might be involved

in roadsign damage; he suspected

that it might be."

Here, the trial court is somewhat re-

luctant to label the sign damage as a cri-

minal activity, notwithstanding that his con-

clusion was to the effect that Owens knew,

prior to stopping the vehicle, that a crime

had been committed.

The mere fact that the signs were dam-

aged, and in view of the evidentiary record

herein, it cannot be assumed nor can we

speculate that the damage was the result of

any criminal activity. Logically, the dam-

age could have resulted from an unavoidable

automobile accident or from many causes. It

is therefore unfair and unjust to rest on

the mere assumption, for the purpose of pro-

viding probable cause for the stopping of a

vehicle, that criminal activity was the con-

tributing factor to the damage of the signs.

Other factors of significance are the time

frame in which Owens claims he became aware

of the damaged signs. In his own statement

he vaguely fixes the time "lately" when he

became aware. His statement to the Police

Chief was within several weeks. His testi-

mony at the hearing on the motion to suppress:

"We had had, a few days before

this we had several signs knocked

down. . ." (Mtn Hearing TR 5)

On Cross examination:

Q Officer Owens did I understand you to

testify that it was a matter of a few

days prior to September 21, 1976 that

certain highway signs had been knocked

down by a vehicle resembling the vehicle

in which these subjects were found,

these defendants?

A This had been going on for some time

around the county. It was probably a

couple days before this that these

had been knocked over. (Mtn Hearing

TR 10)

At the trial on cross examination:

Q When did you observe that sign was

knocked down?

A I believe the first time I had seen it

was the evening before (T TR 25).

The inconsistencies herein noted, help

to clearly demonstrate that Owens and per-

haps others concocted this whole story of

the damaged sign theory for the purpose,

and the only purpose, of attempting to for-

mulate a probable cause base upon which to

justify the stopping of the Van Pelt vehicle.

If the facts were such, as Owens would have

us believe, as to when he first became aware

of the damaged signs, there would be no var-

iances of the time frame, if he were stating

the truth, from lately to several weeks --

2 days to day before the date of incident.

Another factor of importance going to

Owens' lack of good faith in his suspicion

of a crime having been committed prior to the

stopping of the Van Pelt vehicle, is that he

did not apprise Van Pelt or any of the other

petitioners of the purpose for which they

were being stopped (T TR 27; Mtn Hearing

TR 16). Normal police procedure and the man-

date of the Fourth and Fourteenth Amendments

and of the "stop and frisk" statute, K.S.A.

22-2402, supra, dictates that the officer

apprise the subject of the purpose for which

he or she is being stopped. Without this

requirement citizens would fall victim, con-

stantly, to law enforcement officers of

being stopped without any legal justification

whatsoever.

Moreover, the search must be either an

incident to the arrest or based on probable

cause and if an incident to an arrest, but

not visa versa. The violation of a con-

stitutional right by subterfuge cannot be

justified. Taglavore v U.S., 291 F.2d 262.

It must be remembered that probable cause

means more than a bear suspicion. Brinegar

v U.S., 338 U.S. 160.

The gist of Terry, supra, was to the

effect that the Fourth Amendment applies to

"stop and frisk" procedures. In arriving at

a determination whether the Fourth Amendment

was violated by police officers’ seizure of

person by way of stopping him for interroga-

tion, the notions which underlie both the

warrant procedure and requirement of probable

cause remain definitively relevant. It goes

on to say that a police officer's conduct

for the purpose of making proper assessment

thereof, it is necessary first to focus upon

the governmental interest which allegedly

justified official intrusion upon the con-

stitutionally protected interests of a citizen

and to justify that intrusion, the police of-

ficer must be able to point to specific

articularable facts which is to be consid-

ered with rational inferences from those

facts which would reasonably warrant an

intrusion.

As here, Owens was not able to articulate

any good faith facts of reasoning to justify

the stopping of the Van Pelt vehicle as we

have discussed in some detail throughout this

brief. We have emphasized that the damaged

sign theory was a mere pretext, or was con-

cocted after the fact, i.e., discovery of the

marihuana and other items in the Van Pelt

vehicle, and after these petitioners were

arrested and incarcerated. These facts and

circumstances obviously goes against the grain

of Terry, supra.

As was said in Chadwick, supra:

"In our view, when no exigency

is shown to support the need

for an immediate search, the

Warrant Clause places the line at

the point where the property to

be searched comes under the ex-

clusive dominion of police authority."

As we have previously discussed herein,

had Owens effected arrest of Van Pelt for

illegal car tags this would have permitted

the car to be impounded, affording ample op-

portunity to procure the proper search war-

rant to conduct a legal search of the con-

tents of the car.

As here, we have Owens telling us about

damaged highway signs which he may have be-

come aware of either late, however, this is

to be interpreted, before September 21, 1976,

or perhaps he became aware three weeks prior

thereto, two days, or the evening before

September 21, 1976. The fact that he, or

someone, had observed traces of blue paint

on one of the broken signs on the east edge

of St. Marys, he began to rationalize that

the blue car he stopped may have been in-

volved in damaging this particular sign.

Also as we have already indicated herein,

there is nothing in Owens' testimony or any-

place in this record, that would indicate

that a crime had been committed with respect

to the damage of the signs, unless you

speculate that these signs were damaged

pursuant to acts of vandalism. We respect-

fully submit that the sign damage theory is

totally speculative and remote to constitute

a probable cause stopping and arrest of

these petitioners.

This Court and many of the United States

Courts of Appeal have struck down convictions

that were predicated upon illegally obtained

evidence pursuant to warrantless searches

based upon the pretext of what is commonly.

referred to as "drug courier profile". In’

a very recent case coming from the 6th Cir-

cuit, U.S. v McCaleb, 552 F.2d 717 (6th Cir.

1977), there the Court held:

"A drug courier profile by it-

self, provides no probable cause

to arrest a person."

Once again in the instant case, Owens

sitting in his patrol car in the wee hours

of the morning of September 21, 1976, per-

haps with nothing to do and had done nothing

throughout the evening, when observing the

Van Pelt vehicle with the corn stalks being

dragged from underneath felt the need to

stop, primarily for the purpose of making

an inquiry about the corn stalks. His con-

duct can be reasonably construed as con-

stituting a random stop. It should be re-

membered that the Van Pelt vehicle was the

only car that was stopped under the suspicion

of being involved with the damage of the

highway signs. It is strange indeed that

Owens would be thinking about minor offenses

of damage of a highway sign at this ungodly

hour of the morning. Moreover, Petitioners'

Exhibit No. 1, which purports to be a report

of damage to highway signs that was reported

to the State Highway Department reflects no

mention of any highway signs being damaged

within the close proximity of September 21,

1976.

We respectfully submit that the Owens

probable cause of damaged stop signs for stop-

ping the petitioners initially was wholly

unwarranted. Furthermore, the search that

followed and the discovery made thereto is

totally unretated to the suspected offense

which formed the basis of stopping the vehicle.

Summary and Conclusion

This case presents a classicai situation

of obvious violations of Fourth Amendment

rights to be secure in one's property and

personal affects without an intrusion of

governmental authorities. The facts clearly

discloses in this record that the officers

forceably upened the trunk of Van Pelt's

vehicle. This constituted a flagerant

violation of these petitioners rights pro-

tected underthe Fourth Amendment and the

approval of this conduct by the courts below

is contrary and inconsistent to the many

decisions of this Court in condemning this

type of activity. The criteria so clearly

set out in Terry v Ohio, 392 U.S. 1, and the

other decisions of like nature prohibits the

type of conduct of the officers herein

described.

A writ of certiorari should issue to

review the decision of the Kansas Court of

Appeals.

Respectfully Submitted

7 aye

(ae £ Oo. t#4 ~~

Charles S. Scott,

Counsel for Petitioners

724% Kansas Avenue

Topeka, Kansas 66603

(913) 233-0514

Scott, Scott, Scott & Scott

Dated: July 24, 1978

For the sake of efficiency, the case

captions have been removed from Appendix

Numbers 1, 2, 3, 4, 5 and 8.

APPENDIX 1, THE OPINION OF THE KANSAS COURT

OF APPEALS IN THE NAME AND STYLE OF STATE

v VAN PELT

Appeal from Pottawatomie district court;

JOHN W. BROOKENS, judge. Opinion filed

February 24, 1978. Affirmed.

Charles S. Scott, of Scott, Scott,

Scott and Scott, of Topeka, for the

appellants.

Edward W. Pugh, county attorney, and

Curt T. Schneider, attorney general, for

the appellee.

P Before FOTH, C.J., ABBOTT AND PARKS,

FOTH, C.dJ.:3

By consent the three defendants and an

alleged companion were jointly tried to the

court on charges of possession of marijuana

with intent to sell. They appeal from

their conviction and sentence raising four

points:

i. The initial stop of the defendants' car

was proper under our "stop and frisk"

statute, K.S.A. 22-2402 (1), authorizing

an officer to stop a person whom he "rea-

sonably suspects" has committed a crime.

The officer who made the stop and other

local law enforcement officers had been

alerted to recent vandalism of some 54 high-

way signs in the St. Marys area. Just before

72 : Ta “Tor - —Y~ eee oe = 7 . - - —— —-—

z - , a 7 y = - a a a .

going on duty the night before, he had per-

sonally inspected a knocked-over sign lo-

cated near a corn field and bearing blue

paint. The fact that defendants' car was

blue, trailed corn stalks, and was abroad

at 5:20 to 5:30 a.m., in our view gave the

officer a reasonable suspicion that it was

involved in the vandalism. There is nothing

in the record to warrant an inference that

the stop was a mere pretext to search the

car.

Upon finding the car bore a tag regis-

tered to a different vehicle, the officer

was justified in checking the driver's story

about recently purchasing it. His resulting

approach to the car put him in a position

to observe the car's interior and its

occupants without making a search.

While standing near the car the officer

observed a corn knife, a wager jug, a lantern,

and several gloves. In addition, he smelled

a strong odor which he recognized as that of

green marijuana heating. At this point he

had probable cause to believe the car con-

tained contraband. That was sufficient to

justify the subsequent search, without a

warrant, without its being incident to an

arrest, and without first impounding the car.

State v Atkinson, 215 Kan. 139, 523 P.2d

737; State v Undorf, 210 Kan. 1, 499 P.2d

1105; Chambers v Maroney, 399 U.S. 42, 26

L.Ed. 2d 419, 90 S.Ct. 1875 (1970).

2. Immediately upon arresting defendants

and their companion an officer read the

Miranda warning to the foursome. Asked if

they understood their rights three said

yes, one nodded his head in the affirmative.

Assuming the defendant Van Pelt was the

head nodder, we think there was sufficient

evidence to support the trial court's con-

clusion that he thereafter knowingly waived

his right to silence. The nodding of the

head in a universally recognized signal;

immediately after the rights were read he

said he would talk to the officers; and the

incriminating statements were made within

five minutes or so. There is no suggestion

of coercion or intimidation, and no evidence

to cast doubt on the trial court's finding

that Van Pelt understood his rights as he

had indicated he did. Under these circum-

stances we cannot reverse the finding.

State v Wilson, 215 Kan. 28, 523 P.2d 337,

Syl. 2

Se The evidence was sufficient to convict

not only the driver, Van Pelt, but the two

passengers as well. The fact that the

fourth defendant was acquitted by the trial

court is irrelevant; no one was able to

identify him as an occupant of the car, while

the three who were convicted were positively

identified in court.

As to the passengers, the court had

before it: over 100 pounds of green mari-

juana in four gunny sacks found in the trunk,

giving off a strong odor permeating the car

which was easily identified by all officers;

three pairs of pruning shears; five corn

knives (at least one of which carried mari-

juana residue); a number of pairs of gloves;

more empty gunny sacks; a tarpaulin with _

marijuana on it; and the lantern and wager

jug previously mentioned. The clothes of

the two convicted passengers bore particles

of green vegetation; although the amounts

were too small to identify they did demon-

strate their wearer's recent encounter with

4a e

nature. On this evidence -- particularly the

ample supply of harvesting paraphernalia --

combined with the early morning hour of the

arrest, the trial court drew the inference

that all occupants of the car were engaged

in a joint enterprise to harvest and sell

marijuana. Since we cannot say the infer-

ence was unreasonable, under established

rules of appellate review we cannot disturb

the finding. See, e.g., State v Howell, 223

Kan. 282, 286-7, P.2d ; State v

Gobin, 216 Kan. 278, 279-80, 531 P.2d 16,

and cases cited therein.

4. Defendants' motions for acquittal and

for a new trial were based on the arguments

discussed above. For the reasons stated it

was not error to deny them.

Affirmed.

APPENDIX 2, DECISION DATED MARCH 8, 1978,

DENYING PETITIONERS APPLICATION TO MODIFY

OR TO RECONSIDER BY THE KANSAS COURT OF

APPEALS.

You are hereby notified of the fol-

lowing action taken in the above entitled

case:

Motion by Appellants for Rehearing.

DENIED.

. a +t

APPENDIX 3, DECISION DATED April 28, 1978,

DENYING PETITION FOR REVIEW TO THE SUPREME

COURT OF THE STATE OF KANSAS

You are hereby notified of the follow-~

ing action taken in the above entitled

case:

Petition for Review.

Considered and DENIED.

APPENDIX 4, MEMORANDUM DECISION OF DISTRICT

COURT OF POTTAWATOMIE COUNTY, KANSAS, DENY-

ING PETITIONERS RESPECTIVE MOTIONS TO

SUPPRESS DATED JANUARY 25, 1977.

MEMORANDUM DECISION

The above four cases were consolidated

for the purpose of hearing and determination

of defendants' motions to suppress evidence

which the officers found in the inside and

in the trunk of the vehicle involved herein.

All motions to suppress are identical and

all factual determinations apply to all

defendants.

Prior to September 21, 1976, several

(numbering up to some 54) highway road signs

had been knocked down, in the Pottawatomie

County area, apparently by vehicles. Police

officers and Sheriff's officers within Pot-

tawatomie County, Kansas, had been alerted

to be on the lookout for vehicles that

might have been involved in this sort of

activity.

On the evening of September 20, 1976,

St. Marys City Police Officer Owens and

Pottawatomie County Deputy Sheriff Etienne

had inspected a road sign in the St. Marys,

Kansas area that had been knocked down; this

Sign had blue car paint on it and was close

to a corn field.

In the early morning hours of September

21, 1976, approximately 5:15 or 5:30 a.m.,

officer Owens was sitting in his police car

on Bertrand Street (the main street) of St.

Marys, Kansas; he noticed a 1962 or 1963

Blue T-Bird Ford proceeding West; there were

four occupants of the vehicle; the rear of

the vehicle had corn stalks handing down

from the bumper and frame of the vehicle.

Officer Owens stopped the vehicle on

Bertrand Street at the West edge of the

City of St. Marys, Kansas. His purpose in

stopping the vehicle was to determine whether

this vehicle might be involved in road sign

damage; he suspected that it might be.

The vehicle was driven by Van Pelt,

other defendants were passengers. Officer

Owens asked Van Pelt for identification;

Officer Owens then radioed for a license

tag check of the car, and Van Pelt stated

the license tag did not belong on this car,

the blue Ford T-Bird. As Officer Owens stood

near the car door, he noticed a corn knife

(a machete type knife) on the floor of the

rear seat area, and one of the defendants

attempted to cover the corn knife with his

foot; the officer also noticed a lantern, a

water jug, and several gloves on the floor.

Officer Owens smelled a strong odor of

green marijuana.

Officer Owens then radioed Pottawatomie

County Sheriff's Office for a back up,

meaning assistance.

Soon after radioing for a back up,

Deputy Etienne arrived at the scene, imme-

diately followed by the arrival of St. Marys

Chief of Police Beseau.

When Deputy Etienne arrived, the first

thing Officer Owens stated, in substance,

was that he had stopped the car, originally,

because he thought it might be involved in

the damage to the highway sign. Deputy Etienne

and Chief Beseau both smelled an odor of green

marijuana emanating from the vehicle.

The four occupants of the vehicle, the

defendants, were searched for weapons, none

being found.

The items in evidence as State Exhibits

1 through 12 were removed from the interior

of the vehicle; these consisted of some 3

corn knives, 1 pair of vegetation clippers,

4 gloves, the lantern, the wager jug. In

order to see these items inside the vehicle,

the officer used a flashlight.

Chief Beseau looked at the trunk of

the vehicle, and noticed a hole in the trunk

lid; he tried to see through this hole into

the trunk with his flashlight, but could see

nothing; however, he sensed a strong smell

of green marijuana emanating from the in-

terior of the trunk. Beseau asked Van Pelt

for keys for the trunk, and Van Pelt replied

he did not have keys to the trunk, and the

trunk lid could not be opened.* Van Pelt

said nothing more.

Chief Beseau used a screw driver to

open the trunk, and found therein six burlap

bags containing vegetation which he believed

to be marijuana. Defendants were then placed

under arrest for possession of marijuana.

All defendants were polite and docile

at all times; none carried a weapon. No

damage was found on teh vehicle.

All three officers knew what green mari-

juana smells like, and that it has a dis-

tinctive odor.

Defendants move to suppress evidence

obtained from the interior of the car, States

Exhibits 1 through 12, and the six burlap

10a

bags of green vegetation believed by the

officers to be marijuana. Defendants claim

Officer Owens had no right to stop the vehicle

initially, and that such stopping of the

vehicle was unlawful. Defendants further

claim the search of the vehicle was unlawful,

and the evidence should be suppressed.

The State, of course, contends otherwise.

The Court concludes:

A law enforcement officer may stop a

person in a public place, without making an

arrest, when he reasonably suspects that the

person has committed a crime. This principle

also applied to the stopping of vehicles.

Here Officer Owens knew, prior to stopping

the Van Pelt vehicle, that a crime had been

committed; that a highway sign had been

knocked down by a blue colored car, and this

was close by a corn field. Officer Owens

was justified and acting appropriately in

his suspicion that this vehicle was involved

in such crime, and his suspicion was reasonable.

A law enforcement officer may approach

and stop a person or a vehicle in an appro-

priate manner for purposes of investigating

possible criminal behavior even though there

is no probable cause to make an arrest. This

is the case here. Officer Owens, under the

facts known to him, stopped the vehicle,

appropriately, and thereafter found the

vehicle improperly registered, and found

the strong odor of green marijuana emanating

from the vehicle. Because there were four

occupants of the vehicle, he called for

backup.

lla

An officer may search a motor vehicle,

under these circumstances, without a warrant,

upon probable cause. Probable cause exists

when there are facts and circumstances to

warrant a reasonable person to believe that

the automobile contains contraband. If there

is probable cause to search the vehicle, such

search need not be incident to an arrest.

Here, the officers did have probable cause

to search the vehicle for marijuana.

Defendants' motion to suppress is

denied.

State v Boone, 220 Kan. 758.

State v Mall, 216 Kan. 287.

State v Tygart, 215 Kan. 409

State v Jackson, 213 Kan. 219.

This memorandum decision filed and

is effective this 25th day of January, 1977.

12a

APPENDIX 5, JOURNAL ENTRY OF FINAL JUDGE-

MENT OF CONVICTION RENDERED IN THE DISTRCT

COURT OF POTTAWATOMIE COUNTY, KANSAS,

DATED FEBRUARY 21, 1977

JOURNAL ENTRY

Now on this 2lst day of February, 1977,

the above entitled cause comes on for hearing

pursuant to the previous assignment thereof.

State of Kansas appears by Edward W. Pugh,

County Attorney for Pottawatomie County,

Kansas; the defendant appears in person and

by his attorney, Charles S. Scott of Topeka,

Kansas.

By agreement and with the consent of the

Court, this case is consolidated for trial

with Case #1,874, #1,875 and #1,876. The

defendant advised the Court that he wishes

to waive jury trial.

Thereupon, the Court inquires of the

parties if they are ready for trial and they

answer in the affirmative. Witnesses are

sworn and evidence presented on behalf of the

State. The State rests. Whereupon the de-

fendant moves the Court for an acquital and

after argument of the plaintiff and defendant,

said motion is overruled. Whereupon the

defendant announces to the Court that he

wishes to present no evidence and rests. The

attorney for plaintiff and defendant argue

the cause to the Court.

Thereafter, the Court reaches a verdict

and the Court's verdict is that the defendant

is guilty of the Possession of Marihuana with

Intent to Sell, contrary to K.S.A. 65-4127b

(b) (3).

l3a

IT IS ADJUDGED BY THE COURT, that the

defendant is guilty of Possession of Mari-

huana and Intent to Sell, contrary to K.S.A.

65-4127b (b) (3).

Whereupon the Court makes inquiry of

the defendant if he wishes to file post trial

motions and the Court grants ten (10) days

to the defendant in which to file post trial

motions, and sets the hearing on said motions,

if filed on the 10th day of March, 1977.

Now on this 10th day of March, 1977,

this matter comes on for hearing. The

State of Kansas appears by Edward W. Pugh,

County Attorney for Pottawatomie County,

Kansas; the defendant appears by his attorney,

Charles S. Scott of Topeka, Kansas.

The defendants present their post-

trial motions filed herein to the Court.

The attorney for the defendant makes his

argument in support of the motions and rests,

and the County Attorney makes his argument

and rests.

Thereupon, the Court overrules the post-

trial motions and sets this matter for sen-

tencing on the 4th day of April, 1977, at

10:00 o'clock a.m. or as soon thereafter as

the Court may hear the same.

Now on this 4th day of April, 1977, this

matter comes on for sentencing haveing been

continued for this purpose from the 10th day

of March, 1977. The State appears by Edward

W. Pugh, County Attorney, the defendant

appears in person and by his attorney

Charles Scott of Topeka, Kansas.

l4a

IT IS ADJUDGED that the defendant be

committed to the custody of the Secretary of

Corrections of the State of Kansas or his

authorized representative to be confined

until discharged according to law for a per-

iod of not less than one (1) year nor more

than ten (10) years for the crime of Pos-

session of Marihuana with Intent to Sell,

contrary to K.S.A. 65-4127b (b) (3).

IT IS ADJUDGED that the Clerk of the

District Court of Pottawatomie County,

Kansas, deliver a certified copy of this

judgment and commitment to the Sheriff of

Pottawatomie County or other qualified

officer and that the copy serve as the con-

mitment of the defendant.

IT IS SO ORDERED.

John W. Brookens, Judge

2nd Judicial District

District Court of

Pottawatomie County, Kansas

15a

APPENDIX 6, K.S.A. 65-4105 (d) and

K.S.A. 65-4127b (b) (3)

K.S.A. 65-4105 (d) reads as follows:

"(d) any material, compund, mix-

ture or preparation which contains

any quantity of the following

hallucinogenic substances, their

salts, isomers and salts of

isomers, unless specifically

excepted, whenever the exist-

ence of these salts, isomers

and salts of isomers is possible

within the specific chemical

designation:

(1) 3,4-methylenedinxy amphetamine;

(2) 5-methoxy-3,4-methylenedioxy

amphetamine;

(3) 3,4,5-trimethoxy amphetamine;

(4) Bufotenine;

(5) Diethyltryptamine;

(6) Dimethyltryptamine;

(7) 4-methyl-2,5-dimethoxyamphetamine;

(8) Ibogaine;

(9) Lysergic acid diethylamide;

(10) Marihuana;

(11) Mescaline;

(12) Peyote;

(13) N-ethyl 3-piperidyl benzilate;

(14) N-methyl-3-piperidyl benzilate;

(15) Psilocybin;

(16) Psilocyn;

(17) Tetahydrocannabinols."

K.S.A. 65-4127b (b) (3) reads as follows:

"(b) Except as authorized by the

uniform controlled substances act,

it shall be unlawful for an person

to sell, offer for sale or have in

his possession with the intent to

sell:

.--(3)° Any hallucinogenic drug de-

signated in subsection (d) of K.S.A.

65-4105; or..."

16a

APPENDIX 7, K.S.A. 8-1570 (3)

K.S.A. 8-1570 (3) reads as follows:

"(3) When the person driving or in

control of such vehicle is arrested

for an alleged offense for which

the officer is required by law to

take the person arrested before a

judge of the district court without

unnecessary delay."

17a

APPENDIX 8, PETITIONERS MOTION TO SUPPRESS

ILLEGALLY SEIZED EVIDENCE

MOTION TO SUPPRESS ILLEGALLY SEIZED EVIDENCE

Comes now the above named defendant

pursuant to K.S.A. 22-3216 and moves the Court

for an order suppressing those items that

were removed from the trunk and the interior

of a 1962 T-Bird Ford automobile on or about

September 21, 1976, for the following rea-

sons, to-wit:

That on said date at or about 4:30 a.m.,

defendant Perl G. Van Pelt was operating

his newly acquired T-Bird Ford in a lawful

manner within the city limits of St. Marys,

Kansas. Accompanying him as passengers

were Larry Wayne Soderlund, Ronnie Torkelson

and Kenneth Browning. An officer of the

St. Marys .Police Department signaled for

the car to stop. Pursuant to said signal

to stop, the car was stopped accordingly.

Thereafter the officer approached the car

and made inquiry as to who the owner was.

Thereupon the officer communicated either

to the Sheriff's Office of Pottawatomie

County and/or the Kansas Bureau of Investi-

gation, and soon thereafter a deputy sheriff

and an officer of Kansas Bureau of Investi-

gation arrived and immediately with the aid

of a tire iron pried open the trunk of said

car and removed therefrom three (3) sacks

of green vegetation. In addition thereto,

items within the interior of the car, i.e.

gloves, corn knives, three (3) mens coats

and trash bags were also removed by said

officers.

18a

Defendant further states that he nor

any other person in said vehicle were com-

mitting any unlawful act or doing anything

to give the police officer any probable cause

or justification for stopping said vehicle.

The said items listed above were seized by

the officers in addition to impounding said

vehicle, and are presently in possession and

control of said officers under the pretense

of being held to be used in evidence against

this defendant and the other defendants

charged with possession with intent to sell

marihuana, contrary to such statutes made

and provided.

The said items were illegally obtained

and such items should be suppressed as being

illegally obtained, on the basis of being

illegally seized without a proper search war-

rant and lacking the probable cause for

the said officers to have seized the same.

WHEREFORE defendant prays the Court

to suppress the said evidence for the rea-

sons hereinabove set forth.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.