State v. Bierer

1
No. 109,330

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

DANIEL EVERARD BIERER,
Appellee.

SYLLABUS BY THE COURT

1.
A defendant must have standing to challenge a search or seizure. The burden is on
the defendant to demonstrate a legitimate expectation of privacy in the place searched or
the property seized. To meet this burden, the defendant must establish a subjective
expectation of privacy and the expectation is one that society recognizes as reasonable.

2.
Letters and other sealed packages are in the general class of effects in which the
public has a legitimate expectation of privacy. Typically, a person who is neither a sender
nor an addressee of a package cannot claim a reasonable expectation of privacy in such
package, but if that person exercises possession and control over the package, then such
person has standing to challenge a search of the package.

3.
The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and § 15 of the Kansas Constitution Bill of
Rights prohibit unreasonable searches and seizures, and a warrantless search is per se
unreasonable unless it falls within a recognized exception.
2

4.
Although the Kansas Supreme Court has recognized that it could extend state
constitutional protections of § 15 of the Kansas Constitution Bill of Rights beyond the
federal guarantees provided by the Fourth Amendment, it has declined to do so. The
wording and scope of the two sections are identical for all practical purposes. If conduct
is prohibited by one, it is prohibited by the other.

5.
Kansas has previously recognized several exceptions to the Fourth Amendment
search warrant requirement: consent; search incident to a lawful arrest; stop and frisk;
probable cause to search accompanied by exigent circumstances, of which hot pursuit is
one example; the emergency doctrine; inventory searches; plain view; and administrative
searches of closely regulated businesses.

6.
A commonly applied exigent circumstance is the automobile exception, which
allows the warrantless search of a vehicle when probable cause has been established to
justify a search.

7.
In California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619
(1991), the United States Supreme Court held that the specific container exception no
longer exists for automobile searches, stating that "[t]he police may search an automobile
and the containers within it where they have probable cause to believe contraband or
evidence is contained."

3
8.
Kansas courts are obligated to follow the United States Supreme Court's
interpretation and application of the Fourth Amendment.

9.
We hold that California v. Acevedo compels the result in this case—officers can
conduct a warrantless search of a package located in an automobile if they have probable
cause to believe contraband or evidence is contained therein.

Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Opinion filed September 6,
2013. Affirmed in part, reversed in part, and remanded.

Shawn E. Minihan and Peter R. Glasser, assistant district attorneys, Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general, for appellant.

Paul J. Morrison and John A. DeMarco, of Morrison Law Firm, LLC, of Olathe, for appellee.

Before HILL, P.J., POWELL, J., and HEBERT, S.J.

POWELL, J.: In this appeal, the State seeks interlocutory review of the district
court's suppression of evidence. The controversy surrounds a package mailed from Reno,
Nevada, deemed suspicious by a United States postal inspector and addressed to Shaun
Boehm of Johnson County. A drug dog used by the Johnson County Sheriff's Department
alerted to the package, and a warrant was prepared for the residence to which the package
was addressed. The package was placed on the front step of the residence. Daniel Bierer
arrived some time later, took the package from the front step, placed it in his vehicle, and
drove away. Sheriff's deputies followed Bierer and stopped him after several miles.
Bierer was arrested; the package was seized by law enforcement, opened without a
warrant, and found to contain several bundles of marijuana. Bierer was charged with one
count of distribution of marijuana and one count of drug tax stamp violation.
4

On appeal, the State contends Bierer did not have standing to challenge the search
and seizure and, even if he did have standing, the officers had probable cause to search
the package without a search warrant. Moreover, the State argues the good-faith
exception to the exclusionary rule applies. Bierer argues the search of the package was
unlawful without a warrant. Because we find that the sheriff's deputies had probable
cause to search the package located in Bierer's automobile, and therefore did not need a
warrant, we must reverse the district court and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

On June 21, 2012, United States Postal Inspector Justin Lewis inspected a
suspicious package addressed to "Shaun Boehm." Based on Lewis' prior experience as a
narcotics investigator, he believed the package contained drugs. The package was mailed
from Reno, Nevada, which is close to the California border where medical marijuana is
grown legally. The package was taped at all exposed seams, which Lewis believed was
done to mask the odor of drugs. The return address was valid, but the sender's name was
not associated with the return address. Further, the postage on the package was $94.50,
but the sender waived signature, meaning no one had to sign for the package.

Lewis contacted Detective Antonio Garcia of the Johnson County Sheriff's
Department to have his K-9, Franz, sniff the package for narcotics. Franz is a passive
alert K-9 and is trained to sit upon locating the odor of narcotics. The officers lined up
several packages for Franz to sniff, but Franz alerted only to the package addressed to
"Shaun Boehm." Lewis then contacted Deputy Mark Burns, also with the Johnson
County Sheriff's Department, who prepared a search warrant for the residence to which
the package was addressed and began preparations for a controlled delivery of the
package.

5
On June 22, 2012, Lewis knocked on the door of the residence, but no one
responded. Lewis left the package at the front door of the residence and left. Later, Bierer
arrived at the residence, took the package from the porch, placed the package in his
vehicle, and drove away.

Deputies in unmarked police cars began to follow Bierer. After several miles,
Deputy Joshua Theiss initiated a traffic stop of Bierer's vehicle. Theiss told Bierer that he
had a chip in his windshield and asked him to step out of the vehicle. When Bierer
stepped out of his vehicle, Theiss arrested him. Bierer was the only occupant in the
vehicle.

Theiss testified that he did not know if Bierer's windshield was actually
obstructed, but another officer told him that it was. Theiss said that he stopped the vehicle
and arrested Bierer solely because he had the package in his vehicle.

Burns looked inside the vehicle and saw the package in the back seat. Because
there was heavy traffic on the road, officers transported Bierer's vehicle to the New
Century Detention Center to conduct a warrantless search of the vehicle. Burns was
present when the package was opened. The package contained another box wrapped in
birthday wrapping paper. Inside the box were 10 food-saver bags wrapped inside 4 trash
bags, which contained bundles of marijuana.

On cross-examination, Burns stated that he preferred to get a search warrant for
the package, but the decision was made not to get one. The deputies believed someone
from the home was going to take the package from the front porch.

On June 23, 2012, the State filed a complaint charging Bierer with one count of
distribution of marijuana and one count of drug tax stamp violation. On September 18,
2012, Bierer filed a motion to suppress claiming the search and seizure of the sealed
6
package containing the marijuana was unlawful. The State filed a response alleging, inter
alia, Bierer did not have standing to challenge the search and the search was lawful.
Thereafter, Bierer filed a supplemental brief on the motion to suppress alleging, inter
alia, he did have standing to challenge the search and California v. Acevedo, 500 U.S.
565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991), had not been adopted in Kansas. On
November 27, 2012, the district court heard argument and testimony on the motion to
suppress then took the motion under advisement. On January 7, 2013, the district court
issued its order granting Bierer's motion to suppress.

The State timely filed an interlocutory appeal.

Standard of Review

In reviewing a district court's ruling on a motion to suppress, this court applies a
bifurcated standard of review. This court accepts the factual findings of the district court
if they are supported by substantial competent evidence. Then, this court reviews the
district court's legal conclusions based upon those findings of fact de novo. State v.
Sanchez-Loredo, 294 Kan. 50, 54, 272 P.3d 34 (2012).

DID THE DEFENDANT HAVE STANDING TO CHALLENGE
THE WARRANTLESS SEARCH OF THE PACKAGE?

The State argues that Bierer lacked standing to challenge the search because his
name was not on the package and he obtained the package from someone else's residence.
Bierer contends that he was in lawful possession of the vehicle searched and had a
possessory interest the package seized. We agree with the district court and Bierer that he
had standing to challenge the search of the package.

7
The district court, relying on State v. McCammon, 45 Kan. App. 2d 482, 484-85,
250 P.3d 838, rev. denied 292 Kan. 968 (2011), ruled that Bierer had "standing to
challenge the search because [he] went to a specific address, picked up the package, and
placed the package inside his vehicle. [Bierer] did not disavow possession of the package.
Therefore, [Bierer] had a possessory interest in the package."

A defendant must have standing to challenge a search or seizure. 45 Kan. App. 2d
at 484. The burden is on the defendant to demonstrate a legitimate expectation of privacy
in the place searched or the property seized. To meet this burden, the defendant must
establish a subjective expectation of privacy and the expectation is one that society
recognizes as reasonable. State v. Rupnick, 280 Kan. 720, 748, 125 P.3d 541 (2005).

"Letters and other sealed packages are in the general class of effects in which the
public has a legitimate expectation of privacy. [Citation omitted]." State v. Daly, 14 Kan.
App. 2d 310, 317, 789 P.2d 1203, rev. denied 246 Kan. 769 (1990). However, as the
State points out, Kansas has not addressed whether a suspect has a legitimate expectation
of privacy in a package sent through the mail that is addressed to a fictional or third party.

In United States v. Sheldon, 351 F. Supp. 2d 1040 (D. Hawaii 2004), employees
with Airborne Express became suspicion about a package when an individual requested
overnight shipping but did not purchase insurance. The individual did not have
identification and paid for the postage in cash. An Airborne Express employee contacted
the phone number of the sender, and the people who answered did not know anyone by
the name of the alleged sender. Pursuant to Airborne Express policy for suspicious
packages, an employee contacted law enforcement and opened the parcel, which
contained a rectangular object ("Blue Brick") tightly wrapped in plastic wrap, along with
several pots and lids. When the officer arrived, he slit open the Blue Brick and saw a
white powdery substance. The officer seized the package and contacted the federal Drug
Enforcement Agency (DEA). DEA agents obtained a warrant for the residence and a
8
warrant to place an electronic beeper in the package, which would indicate the location of
the parcel and alert when it was opened. Officers conducted a controlled delivery of the
package; the defendant signed for the parcel and took it inside the residence. Later, the
beeper went off, indicating that the package had been opened. DEA agents immediately
entered the house and located the package under the defendant's bed. The court found that
the defendant demonstrated ownership and control over the package upon delivery and
took measures to reinforce her privacy interest after taking delivery of it. 351 F. Supp. 2d
at 1044. The court found that this expectation of privacy was objectively reasonable
given the concealment of the Blue Brick inside a pot and in a sealed envelope. 351 F.
Supp. 2d at 1044-45; see also United States v. Pitts, 322 F.3d 449, 459 (7th Cir. 2003)
(person has a right to use false name in sending and receiving mail in order to maintain
privacy); United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992) (defendant has
standing where package addressed to fictitious name which is alter ego of defendant).

However, the State relies on other cases, including a case from the federal district
court here in Kansas, to assert that Bierer has no standing to challenge the search of the
package. In United States v. Wood, 6 F. Supp. 2d 1213, 1219 (D. Kan. 1998), a detective
who was observing outgoing packages at a Federal Express facility noticed a suspicious
package with a fictitious return address and the postage paid by cash. After obtaining a
search warrant, the detective found 2 pounds of methamphetamine in the package. The
addressee was an actual person who occasionally lived at the residence. The government
argued—and the court agreed—the defendant did not have standing because he was not
named as the sender or addressee of the package and the name used was not defendant's
fictitious name or his alter ego. 6 F. Supp. 2d at 1221-24. Further, the court reasoned that
the defendant did not admit an ownership interest in the package or otherwise exercise
control of the package once it was delivered. 6 F. Supp 2d at 1223-24.

We think Wood is distinguishable on its facts because Bierer exerted possession
over the package by taking it from the front porch of the residence and placing it in his
9
vehicle. There is no dispute that Bierer owned the vehicle. By placing the package in his
vehicle, Bierer exercised a possessory interest in the package and intended to exclude
others. Moreover, Bierer never denied ownership or possession of the package. And,
unlike Sheldon, Bierer did not attempt to conceal the package; he simply placed the
package in the back seat of his vehicle. When Burns approached Bierer's vehicle, the
package was visible on the back seat. We agree with the district court and hold that
Bierer had standing to challenge the search of the package.

DOES CALIFORNIA V. ACEVEDO CONTROL THE DISPOSITION OF THIS CASE?

Having agreed that Bierer had standing to challenge the search of the package, we
must now determine whether the search of the package was reasonable without a warrant.
In deciding this question, we are confronted with what appears to be conflicting
precedent.

"The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment, and § 15 of the Kansas Constitution Bill of
Rights prohibit unreasonable searches and seizures, and a warrantless search is per se
unreasonable unless it falls within a recognized exception." State v. Ramirez, 278 Kan.
402, 404-05, 100 P.3d 94 (2004). "[T]he wording and scope of the two sections are
identical for all practical purposes. If conduct is prohibited by one it is prohibited by the
other." State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993). Although the Kansas
Supreme Court has recognized that it could extend state constitutional protections of § 15
beyond the federal guarantees provided by the Fourth Amendment, it has declined to do
so. State v. Hoeck, 284 Kan. 441, 463, 163 P.3d 252 (2007).

"'Kansas has previously recognized several exceptions to the Fourth Amendment
search warrant requirement: consent; search incident to a lawful arrest; stop and frisk;
probable cause to search accompanied by exigent circumstances, of which hot pursuit is
10
one example; the emergency doctrine; inventory searches; plain view; and administrative
searches of closely regulated businesses.'" State v. Mendez, 275 Kan. 412, 421, 66 P.3d
811 (2003) (quoting State v. Baughman, 29 Kan. App. 2d 812, 814, 32 P.3d 199 [2001]).

"A commonly applied exigent circumstance is the 'automobile exception' which
allows the warrantless search of a vehicle when probable cause has been established to
justify a search." State v. Conn, 278 Kan. 387, 395, 99 P.3d 1108 (2004). The State bears
the burden of proving the lawfulness of the search and seizure. State v. Boyd, 275 Kan.
271, 273, 64 P.3d 419 (2003).

The State argues that California v. Acevedo, 500 U.S. 565, controls the disposition
of this case. In Acevedo, the United States Supreme Court considered "whether the Fourth
Amendment requires the police to obtain a warrant to open the sack in a movable vehicle
simply because they lack probable cause to search the entire car." 500 U.S. at 573. The
Court held that "[t]he police may search an automobile and the containers within it where
they have probable cause to believe contraband or evidence is contained." 500 U.S. at
580.

In Acevedo, the United States Supreme Court recognized "the dichotomy between
the rule in Chadwick and the rule in Ross." 500 U.S. at 568 (citing United States v. Ross,
456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 [1982]; United States v. Chadwick, 433
U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 [1977]). Under Chadwick, 433 U.S. at 13-16, if
officers have probable cause to search a container known to be in an automobile and
believed to contain contraband, the container cannot be searched until officers obtain a
search warrant for the container. However, under Ross, "'[i]f probable cause justifies the
search of a lawfully stopped vehicle, it justifies the search of every part the vehicle and
its contents that may conceal the object of the search.'" Acevedo, 500 U.S. at 570 (quoting
Ross, 456 U.S. at 825). The Supreme Court recognized that this discrepancy "has
confused courts and police officers and impeded effective law enforcement." Acevedo,
11
500 U.S. at 576. The Supreme Court held that "Ross now applies to all searches of
containers found in an automobile. In other words, the police may search without a
warrant if their search is supported by probable cause." 500 U.S. at 579. Acevedo
overruled the Chadwick specific container distinction. However, the Court reaffirmed the
principle that "[p]robable cause to believe that a container placed in the trunk of a
[vehicle] contains contraband or evidence does not justify a search of the entire
[vehicle]." Acevedo, 500 U.S. at 580 (quoting Ross, 456 U.S. at 824).

Bierer argues, and the district court agreed, that the Kansas Supreme Court has not
adopted the holding in Acevedo. Instead, the district court and Bierer rely on State v.
Jaso, 231 Kan. 614, 621, 648 P.2d 1 (1982), for the proposition that a search of the
container—in this case the package—required a warrant. In that case, our Supreme Court
recognized the holding in Ross: "'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.'" Jaso, 231 Kan. at 620 (quoting Ross, 456 U.S. at
825). The court also noted an exception to this rule established in Chadwick: "If the
officers have specific knowledge that they are seeking a specific container and that
container is discovered in the vehicle there appears to be no justification for a further
search of the vehicle or even the container itself until a warrant has been obtained." Jaso,
231 Kan. at 621; see also State ex rel. Love v. One 1967 Chevrolet, 247 Kan. 469, 477,
799 P.2d 1043 (1990) (citing favorably to Jaso for the requirement that the search of a
container requires a warrant).

We disagree that our Supreme Court's recitation of the specific container
exception in Jaso (and in Love for that matter) is binding precedent on our court as "we
are obligated to follow the United States Supreme Court's interpretation and application
of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 655-57, 81 S. Ct. 1684, 6 L. Ed.
2d 1081, reh. denied 368 U.S. 871 (1961)." State v. Thompson, 284 Kan. 763, 779, 166
P.3d 1015 (2007). Moreover, Acevedo has been cited favorably by our appellate courts
12
many times. See, e.g., State v. MacDonald, 253 Kan. 320, 325, 856 P.2d 116 (1993)
(relying on Acevedo, car search upheld as supported by probable cause); State v.
Lundquist, 48 Kan. App. 2d 180, 184, 286 P.3d 232 (2012) (probable cause to search
automobile); State v. Tonroy, 32 Kan. App. 2d 920, 926, 92 P.3d 1116 (2004) (citing
Acevedo for the proposition that automobile searches are different than other searches);
State v. Blair, 31 Kan. App. 2d 202, 207, 62 P.3d 661 (2002) (law enforcement lacked
probable cause to search home and garage); State v. Chapman, 23 Kan. App. 2d 999,
1005, 939 P.2d 950 (1997) (evidence suppressed as police lacked reasonable suspicion to
detain defendant and car); State v. Groshong, No. 93,419, 2005 WL 2665769, at *2 (Kan.
App. 2005) (unpublished opinion) (search and seizure of car passenger's purse upheld
where search of automobile supported by probable cause); State v. Darkis, No. 90,738,
2004 WL 1373302, at *3 (Kan. App. 2004) (unpublished opinion) (citing Acevedo for the
proposition that probable cause to search automobile includes any containers located
within); see also Rupnick, 280 Kan. at 744-45 (McFarland, C.J., concurring in part and
dissenting in part) (warrant required for search of computer hard drive unless exception
applies).

Because we are bound by United States Supreme Court decisions interpreting and
applying the Fourth Amendment, we hold that Acevedo compels the result in this case—
officers can conduct a warrantless search of a package located within an automobile if
they have probable cause to believe contraband or evidence is contained therein.

When applying Acevedo to the facts of this case, we hold that the deputies had
probable cause to believe the package contained narcotics and, thus, could conduct a
warrantless search of the package. The district court indicated "officers had probable
cause to search the package but did not obtain a search warrant to do so." Lewis testified
that the package was mailed from Reno, Nevada; the package was taped at all exposed
seams to mask the odor of drugs; the sender's name was not connected with the return
address; and the sender waived signature. A K-9 alerted to the smell of narcotics.
13
Deputies set up a controlled delivery at the address to which the package was addressed,
conducted surveillance on the residence, and watched Bierer take the package from the
residence and place it in his vehicle. Burns testified that he saw the package in plain view
on Bierer's back seat. Accordingly, the deputies had probable cause to stop and search the
vehicle for the package and could conduct a warrantless search of the vehicle to locate
the package and search it.

Because we find that law enforcement had probable cause to search the package
located within Bierer's automobile without a warrant, we need not address the State's
other allegation of error, namely, whether the Leon good-faith exception would apply to
this case. See generally United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed.
2d 677 (1984) (exclusionary rule not applied if law enforcement reasonably relied upon
search warrant).

The judgment of the district court is affirmed in part, reversed in part, and
remanded for further proceedings consistent with this opinion.