State v. Nelson

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NOT DESIGNATED FOR PUBLICATION

No. 114,754

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JEREME L. NELSON,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed January 27,
2017. Affirmed.

Philip White, of Ariagno, Kerns, Mank & White, LLC, of Wichita, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., MCANANY and BUSER, JJ.

Per Curiam: Jereme L. Nelson appeals his conviction for distribution of
methamphetamine after the police found illegal drugs in his truck. Nelson claims the
district court erred in denying his motion to suppress the evidence obtained during the
search of his truck. We find no error in the district court's ruling and affirm.

The Wichita police had been watching Nelson for about 2 months after receiving
reports that he was involved in drug dealing. The officers saw cars registered to persons
known to be involved in illegal drugs make short stops at Nelson's house on a number of
occasions. On one such occasion, Nelson left his house to meet with a person at an
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apartment complex, got into another vehicle for less than a minute and appeared to
exchange something with the other person, and then got back into his vehicle and drove
back to his house.

On the day of Nelson's arrest, Sergeant Ben Blick and Detective Jon Gill saw
Nelson leave his home and get into his truck. The officers knew that Nelson's driver's
license was suspended. They followed Nelson to a restaurant where Sergeant Conrad
Jansson joined them.

Nelson went into the restaurant for a short time but then returned to his truck
where he opened the passenger side door for a minute. He then walked to a nearby black
Volkswagen with darkened windows and attempted to open the driver's side door, but the
Volkswagen apparently was locked. At that point Nelson looked back towards the
restaurant as he walked around to the passenger side of the Volkswagen. The tail lights
on the Volkswagen then flashed as if someone watching Nelson had unlocked the vehicle
with a remote key. Nelson opened the Volkswagen's passenger side door and entered,
remaining inside for 30 to 60 seconds. No one else was inside the vehicle with Nelson,
but someone sitting inside the restaurant would have an unobstructed view of the
Volkswagen through the window. Nelson then got out of the Volkswagen, stood outside
the vehicle and peered inside, and then closed the door. He returned to his truck and
drove away. Blick and Gill followed Nelson in separate vehicles as Nelson drove home.

Jansson remained in the restaurant parking lot. A few minutes after Nelson left,
Jansson saw a Hispanic man come out of the restaurant, get into the passenger seat of the
Volkswagen, sit for a couple of minutes, and then walk back into the restaurant carrying a
large amount of cash in his hand. A few minutes later, Jansson saw the same man and
another man come out of the restaurant together. The men were not acting normally; they
were looking around, as if they were looking for something out of place or for someone
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who might be watching them. One man knelt down by the license plate before both men
got into the Volkswagen and drove away.

Blick and Gill decided to stop Nelson when he returned home and arrest him for
driving with a suspended driver's license. They knew from prior experience with Nelson
that when stopped by the police, he may attempt to flee. Thus, they decided to stop him at
home to minimize the risk of a car chase.

Nelson backed his truck into the driveway at home. Gill pulled in front of the
truck. Nelson then turned his tires to the left, causing the officers to believe he was
attempting to go around Gill's vehicle and flee. In response, Blick moved his vehicle so
as to block Nelson from fleeing.

The officers identified themselves as police officers, ordered Nelson to get out of
the truck, and told him that he was under arrest. Nelson did not immediately comply, but
was seen frantically moving around in the truck for 5 to 10 seconds as if trying to put
something under or retrieve something from under the seat.

The officers drew their weapons because they were unsure whether Nelson was
trying to retrieve a firearm. As Nelson got out of the truck, he locked the doors, tossed the
keys inside the truck, and closed the door. The officers immediately arrested Nelson, put
him in a patrol car, and transported him away.

They then contacted the sheriff's department and summoned a canine unit for a
drug sniff. When the canine unit arrived, the dog, trained to react to methamphetamine,
promptly alerted on the truck. Gill obtained assistance to unlock the truck. The search
that followed yielded two packages of methamphetamine along with $493 in cash, a
receipt for a $2,000 or $2,500 bank deposit, and a cell phone.

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The State charged Nelson with distribution of methamphetamine and possession of
methamphetamine. Nelson moved to suppress the evidence found in his truck. After an
evidentiary hearing, the district court denied the motion. The case was then tried to the
court on stipulated facts. Nelson was convicted of distribution of methamphetamine and
sentenced to 72 months' imprisonment but granted probation. This appeal followed.

On appeal, Nelson claims the district court erred in denying his motion to suppress
because the truck search violated § 15 of the Kansas Constitution Bill of Rights and the
Fourth Amendment to the United States Constitution. We typically consider this type of
claim using a bifurcated review standard. First, we review the factual underpinnings for
the district court's decision for substantial competent evidence. Then we review de novo
the district court's ultimate legal conclusion drawn from those facts. But here, because the
facts apparently are undisputed, we concern ourselves only with whether the facts require
that the evidence be suppressed. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d 754
(2014). The State bears the burden to prove the lawfulness of the search and the seizure
of evidence. State v. Overman, 301 Kan. 704, 710, 348 P.3d 516 (2015).

Nelson does not contend that the stop and his subsequent arrest for driving with a
suspended license was unreasonable or that the officers exceeded the scope and purpose
of the arrest. Rather, he argues that the officers did not have probable cause to believe
that evidence of a drug-related crime would be found in the truck. He also argues that the
officers did not have the authority to conduct a warrantless drug-sniff search of his truck.
He contends, in the alternative, that the automobile exception to the requirement of a
search warrant does not apply when a vehicle is parked at the owner's home because no
exigent circumstances exist in that situation.

The Fourth Amendment to the United States Constitution protects against
unreasonable governmental searches and seizures. Here, the State relies on the
automobile exception to the requirement of a search warrant. This exception arises when
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there is probable cause plus exigent circumstances which threaten the loss of evidence of
a crime because of the mobility of the vehicle. Stevenson, 299 Kan. at 58; see State v.
Sanchez-Loredo, 294 Kan. 50, 58, 272 P.3d 34 (2012) (mobility of vehicle fulfills the
requirement of exigent circumstances; therefore, a warrantless search of a vehicle is
permitted based solely on probable cause).

Probable cause to conduct a search was defined as follows in State v. Fitzgerald,
286 Kan. 1124, 1128, 192 P.3d 171 (2008), abrogated on other grounds by Sanchez-
Loredo, 294 Kan. 50:

"Probable cause is the reasonable belief that a specific crime has been committed
and that a specific person committed it. Probable cause exists when the facts and the
circumstances within a law enforcement officer's knowledge and about which the officer
has reasonably trustworthy information are sufficient in themselves to warrant a person of
reasonable caution in the belief that an offense has been or is being committed. When
determining whether probable cause exists, an appellate court considers the totality of the
circumstances, including all of the information in the officer's possession, fair inferences
therefrom, and any other relevant facts, even if they may not be admissible on the issue of
guilt. State v. Abbott, 277 Kan. 161, Syl. ¶¶ 2, 3, 83 P.3d 794 (2004). Evidence of
probable cause need not reach the level necessary to prove guilt beyond a reasonable
doubt, but it must constitute more than mere suspicion. [Citation omitted.]"

A review of the undisputed facts surrounding this search as detailed above
establishes that Nelson's suspicious activities just prior to his arrest provided the probable
cause necessary to search the vehicle. The police had information about Nelson's
involvement in the drug trade, and they observed his suspicious activities during the 2
months prior to his arrest. On the day of his arrest, his conduct at the restaurant was
consistent with the distribution of illegal drugs. When he reached home, acting as if he
might flee, failing to comply immediately with the officers' commands, making furtive
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movements in his truck, and locking the keys in the truck all support a conclusion of
probable cause to search the truck even before arrival of the drug dog.

The drug dog sniffing the exterior of the truck did not in itself constitute a search
for Fourth Amendment purposes. State v. Barker, 252 Kan. 949, 957-58, 850 P.2d 885
(1993); see United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L. Ed. 2d 110
(1983). But the dog's alerting on the truck to the presence of drugs inside confirmed the
existence of probable cause to search the truck. State v. Brewer, 49 Kan. App. 2d 102,
113, 305 P.3d 676 (2013), rev. denied 298 Kan. 1204 (2014); see Florida v. Harris, 568
U.S. ___, 133 S. Ct. 1050, 1057, 185 L. Ed. 2d 61 (2013); State v. Anderson, 281 Kan.
896, 907-08, 136 P.3d 406 (2006).

As an alternative argument, Nelson claims that the automobile exception does not
apply to an automobile parked at a residence. Nelson's reliance on Florida v. Jardines,
569 U.S. ___, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013), to support this proposition is
unfounded. Jardines involved a drug dog sniffing and alerting to the front door of a
residence, not a readily mobile vehicle. In our present case, the officers did not enter the
curtilage of a residence with the intent of investigating the home and its immediate
surroundings. Nelson was arrested immediately upon parking in his driveway.

Nelson also relies on dicta found in United States v. Fields, 456 F.3d 519, 524-25
(5th Cir. 2006), and State v. Hobbs, 933 N.E.2d 1281, 1285-86 (Ind. 2010). In fact, the
courts in those cases upheld the challenged searches as constitutional. Nelson provides no
plausible explanation why evidence of a crime located in a vehicle is less likely to be lost
if the vehicle is parked at home rather than at some other location. An operable vehicle is
considered readily mobile, and a readily mobile vehicle provides the exigent
circumstances justifying a warrantless search. Sanchez-Laredo, 294 Kan. 50, Syl. ¶ 4; see
California v. Carney, 471 U.S. 386, 392-93, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1984). A
holding contrary to Nelson's alternative argument is found in United States v. Brookins,
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345 F.3d 231, 237-38 (4th Cir. 2003), wherein the court held that the search of a vehicle
on private property based on probable cause alone was sufficient to legitimize the search.
Here, exigent circumstances justified the warrantless search of Nelson's truck. The
district court did not err in denying Nelson's suppression motion.

Affirmed.