State v. McCammon

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No. 102,713

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

AARON MCCAMMON,
Appellant.

SYLLABUS BY THE COURT

1.
One who seeks to challenge the legality of a search as a basis for suppressing
relevant evidence must claim either to have a proprietary or possessory interest in the
premises searched, or to have owned or possessed the seized property.

2.
The mere observation of anything that comes into view during an otherwise lawful
search is not an independent search implicating the Fourth Amendment to the United
States Constitution because it produces no additional invasion of privacy interests beyond
those already jeopardized.

3.
The recordation of a vehicle identification number (VIN) does not meaningfully
interfere with any possessory interest in the vehicle and therefore does not constitute a
seizure implicating the Fourth Amendment.




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4.
Because of the important role played by the VIN in the pervasive governmental
regulation of the automobile and the efforts by the federal government to ensure that the
VIN is placed in plain view, there is no reasonable expectation of privacy in the VIN.

5.
If the Fourth Amendment is not implicated by a search or a seizure, or an invasion
of one's reasonable expectation of privacy, that ends the inquiry on review; it does not
matter if the governmental action is reasonable or not.

6.
Where a party's strategic choices at trial have adverse consequences, we must
refuse to grant relief on appeal from those same choices.

7.
When a criminal defendant agrees to stipulated facts without objection, he or she
is precluded from arguing on appeal that the evidence was not sufficient to support the
conviction if it was conceded in the stipulation or otherwise that the conviction was
supported by sufficient evidence.

8.
Possession by an accused of recently stolen property is sufficient to sustain a
conviction of theft where a satisfactory explanation is not given, particularly where the
nature of the items and their condition support an inference that they have been stolen.

Appeal from Sedgwick District Court; JOSEPH BRIBIESCA, judge. Opinion filed March 4, 2011.
Affirmed.

Randall L. Hodgkinson and Alice L. Walker, legal intern, of Kansas Appellate Defender Office,
for appellant.
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Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve
Six, attorney general, for appellee.

Before GREENE, C.J., BUSER and ATCHESON, JJ.

GREENE, C.J.: Aaron E. McCammon appeals his convictions for four counts of
theft in violation of K.S.A. 21-3701(a)(4), (b)(3), arguing the district court erred in the
denial of his motion to suppress evidence and challenging the sufficiency of the evidence
to support his convictions. Concluding there was no error in denying the suppression
motion and that the evidence was sufficient to support the convictions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 17, 2007, the Sedgwick County Fire Department obtained an
administrative search warrant pursuant to the Sedgwick County Fire Code. On December
18, the officers searched private property owned by Guadalupe Rubalcaba, part of which
consisted of former airplane hangars, one of which was leased to Aaron McCammon as a
storage unit.

Catherine Michaelson, a Sergeant with the Maize Police Department, attended the
search to "view and protect any officials on the scene while they conduct their search."
Michaelson testified that she stayed in the area where the fire department was executing
the administrative search warrant at all times. She testified that because three vehicles
"did not seem like they fit to the property and they just didn't seem to—they just didn't
feel right," she recorded the vehicle identification numbers (VINs) numbers of two
vehicles. She did not record the VIN of the third vehicle, because it was obstructed, so
she only took the license plate number of that vehicle. The VINs were visible from the
outside of the vehicles and could be observed without moving anything. She then
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checked the VIN and license plate numbers later that day and found that two of the three
vehicles were reported stolen.

The State charged McCammon with four counts of theft in violation of K.S.A. 21-
3701(a)(4), (b)(3). McCammon filed a motion to suppress evidence and for dismissal,
which was denied by the district court. The case proceeded to a bench trial on the
stipulated facts contained in an affidavit. McCammon was found guilty as charged on all
counts.

DID THE DISTRICT COURT ERR IN DENYING MCCAMMON'S SUPPRESSION MOTION?

Before we address the merits of McCammon's challenge to the district court's
ruling on his suppression motion, the State suggests that we determine whether he has
standing to assert rights under the Fourth Amendment to the United States Constitution
because he did not have a legitimate possessory interest in the stolen vehicles, citing State
v. Wickliffe, 16 Kan. App. 2d 424, Syl. ¶ 3, 826 P.2d 522 (1992).

McCammon argues that because the State did not raise the standing issue at the
district court, it cannot be raised for the first time on appeal. Contrary to McCammon's
argument, the State raised the standing issue to the district court; our review of the
transcript of the suppression hearing reveals that the prosecutor argued that "somebody
who has a stolen car [doesn't] have standing to challenge the search of that car" and that
"even if the court were to determine that [the officer's actions were] a search of the car,
he doesn't have standing to challenge that," citing Wickliffe, 16 Kan. App. 2d 424.
Clearly, the State challenged standing in district court and there is no bar to such a
challenge on appeal.

"[A] defendant cannot object to the seizure of evidence without proper standing to
challenge the validity of the search." State v. Gonzalez, 32 Kan. App. 2d 590, 593, 85
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P.3d 711 (2004). One who seeks to challenge the legality of a search as a basis for
suppressing relevant evidence must claim either to have a proprietary or possessory
interest in the premises searched, or to have owned or possessed the property seized.
State v. Jakeway, 221 Kan. 142, 144-45, 558 P.2d 113 (1976); see State v. Sumner, 210
Kan. 802, 804, 504 P.2d 239 (1972).

Here, McCammon was the lessee of the storage unit in question. Our Supreme
Court has likened a storage locker to a hotel room in the context of abandoned property,
and, in its analysis found that "'[g]enerally, when the search of the room occurs during the
rental period, the appellant has standing to object to an unauthorized search of the
premises.'" See State v. Grissom, 251 Kan. 851, 911, 840 P.2d 1142 (1992). Because
McCammon had a possessory interest in the storage unit, the premises searched, he has
standing to challenge the search. See Horton v. California, 496 U.S. 128, 137 n.7, 110 L.
Ed. 2d 112, 110 S. Ct. 2301 (1990) ("But even where the object is contraband, this Court
has repeatedly stated and enforced the basic rule that the police may not enter and make a
warrantless seizure.").

Turning to the merits of his argument, McCammon argues that the scope of the
administrative search warrant was exceeded because the warrant was obtained in order to
inspect the building for fire code violations and did not give the officer the right to
conduct a criminal search, inspect the vehicles, or record the VINs because the vehicles
were not clear evidence of Sedgwick County Fire Code violations.

In reviewing a decision on the suppression of evidence, this court reviews the
factual findings underlying the trial court's suppression decision by a substantial
competent evidence standard and the ultimate legal conclusion drawn from those factual
findings by a de novo standard. The court does not reweigh the evidence. State v.
Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). When the material facts to a trial
court's decision on a motion to suppress evidence are not in dispute, the question of
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whether to suppress is a question of law over which an appellate court has unlimited
review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). The State bears the
burden of proving the lawfulness of a search and seizure. State v. Groshong, 281 Kan.
1050, 1052, 135 P.3d 1186 (2006) (citing State v. Boyd, 275 Kan. 271, 64 P.3d 419
[2003]).

On appeal, McCammon does not challenge the administrative search warrant or
the participation of the police officer in the ensuing search of the property. Thus, for
purposes of this appeal, the officer was lawfully on the private property where
McCammon's personal items were located, and the lawful scope of the search pursuant to
the warrant was to inspect the buildings or premises to determine whether "there are
conditions or violations of the Fire Code that may make [those] buildings unsafe,
dangerous or hazardous."

First, we must determine whether the officer's observation of the VINs through the
windshields of two vehicles was a search implicating the Fourth Amendment. We hold
that it was not. The mere observation of anything that comes into view during an
otherwise lawful search is not an independent search implicating the Fourth Amendment
because it produces no additional invasion of privacy interests beyond those already
jeopardized. See Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149, 94 L. Ed. 2d 347
(1987); Illinois v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983).
As noted by the Court in Hicks, if the officer had taken any action beyond mere
observation—even a trivial movement of an item by only a few inches—we would be
compelled to conclude that an independent search occurred implicating the Fourth
Amendment. 480 U.S. at 325.

Next, we must determine whether the officer's recordation of the VINs was a
seizure within the meaning of the Fourth Amendment. Again, we hold it was not. The
recordation of the VINs did not meaningfully interfere with any possessory interest in the
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vehicles and therefore did not amount to a seizure implicating the Fourth Amendment.
See Hicks, 480 U.S. at 324; Maryland v. Macon, 472 U.S. 463, 469, 105 S. Ct. 2778, 86
L. Ed. 2d 370 (1985). The officer was able to record these numbers without any intrusion
whatsoever; in fact, she was unable to record a VIN from a third vehicle because it was
obstructed, so she opted against further action to observe and record that VIN. We
cannot conclude that the recordation of the VINs was a seizure implicating the Fourth
Amendment. See also State v. Harder, 8 Kan. App. 2d 98, 100, 650 P.2d 724 (1982) ("'A
search implies prying into hidden places for that which is concealed and it is not a search
to observe that which is in open view. Looking into a parked car through the windows
does not constitute a search, even though it is nighttime and the items can be seen only
with the aid of a flashlight.'"); State v. Wade, 206 Kan. 347, 348, 479 P.2d 811 (1971),
overruled on other grounds by State v. Mims, 220 Kan. 726, 556 P.2d 387 (1976)
("Looking into a parked car through the windows does not constitute a search, even
though it is nighttime and the items can be seen only with a flashlight."); State v.
McMillin, 206 Kan. 3, 8, 476 P.2d 612 (1970) (same).

Finally, we note as an alternative analysis that the United States Supreme Court
has made clear that there is no reasonable expectation of privacy in a VIN.

"[I]t is unreasonable to have an expectation of privacy in an object required by law to be
located in a place ordinarily in plain view from the exterior of the automobile. The VIN's
mandated visibility makes it more similar to the exterior of the car than to the trunk or
glove compartment. The exterior of a car, of course, is thrust into the public eye, and thus
to examine it does not constitute a 'search.' See Cardwell v. Lewis, [417 U.S. 583, 588-
589, 41 L. Ed. 2d 325, 94 S. Ct. 2464 (1974)]. In sum, because of the important role
played by the VIN in the pervasive governmental regulation of the automobile and the
efforts by the Federal Government to ensure that the VIN is placed in plain view, we hold
that there was no reasonable expectation of privacy in the VIN." New York v. Class, 475
U.S. 106, 114, 89 L. Ed. 2d 81, 106 S. Ct. 960 (1986).

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At oral argument, McCammon argued that we should focus on the purpose and
scope of the administrative search and conclude that the officer's actions exceeded the
boundaries of that purpose and scope. We reject this analysis, however, because its
application is appropriate to determine reasonableness of a search or seizure, but here we
have neither and have no need for a reasonableness determination. If the Fourth
Amendment does not apply, that ends the inquiry; it does not matter if the governmental
action is reasonable or not. See Moylan, The Fourth Amendment Inapplicable vs. The
Fourth Amendment Satisfied: The Neglected Threshold of "So What?" 1977 S. Ill. U.L.J.
75.

Thus, in summary, we conclude there was neither a search nor a seizure of the
VINs, and McCammon had no reasonable expectation of privacy in the VINs in any
event. The Fourth Amendment was not implicated, and we need not examine the
reasonableness of the officer's actions. For these reasons, the district court did not err in
denying McCammon's suppression motion.

WAS THERE SUFFICIENT EVIDENCE TO SUPPORT MCCAMMON'S CONVICTIONS?

In general, "[w]hen the sufficiency of the evidence is challenged in a criminal
case, this court reviews all the evidence in the light most favorable to the prosecution to
determine whether the court is convinced that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt." State v. Trautloff, 289 Kan. 793, 800, 217
P.3d 15 (2009). This case, however, was decided on stipulated facts, and when a case is
decided on stipulated facts, the appellate court has de novo review. In re Harris
Testamentary Trust, 275 Kan. 946, 951, 69 P.3d 1109 (2003); State v. Downey, 27 Kan.
App. 2d 350, 362, 2 P.3d 191, rev. denied 269 Kan. 936 (2000).

McCammon challenges the sufficiency of the evidence in counts 1, 2, and 3 of the
complaint. We note, however, that this argument is contrary to defense statements made
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at trial. At trial, defense counsel stated, "I do believe that other than that [objection to
introduction of evidence discussed in issue I] the affidavit of probable cause is sufficient,
once those items are admitted over our objection, in order to find Mr. McCammon guilty,
unfortunately."

Where a party's strategic choices at trial have adverse consequences, we have
refused to grant relief on appeal from those same choices. Lee v. Fischer, 41 Kan. App.
2d 236, Syl. ¶ 3, 202 P.3d 57 (2009); State v. Gray, 235 Kan. 632, 635-36, 681 P.2d 669
(1984). When criminal defendants agree to stipulated facts without objection, they are
precluded from arguing on appeal that the evidence was not sufficient to support the
convictions if they conceded in the stipulation that the convictions were supported by
sufficient evidence. State v. Downey, 27 Kan. App. 2d 350, Syl., 2 P.3d 191, rev. denied
269 Kan. 936 (2000); see State v. Dent, No. 100,690, unpublished opinion filed June 12,
2009, rev. denied 290 Kan. __ (February 10, 2010); State v. Link, No. 95,207,
unpublished opinion filed February 23, 2007, rev. denied 284 Kan. 949 (2007).

Here, defense counsel clearly informed the district court that the "affidavit of
probable cause is sufficient" and if the evidence subject to the suppression motion was
admitted, that evidence was sufficient "to find Mr. McCammon guilty, unfortunately."
Although short of a formal stipulation, this statement was nearly identical to that at issue
in Downey, where counsel informed the court he believed "'the facts from a legal
standpoint . . . cover all the bases as far as [the] elements of the offense.'" 27 Kan. App.
2d at 363. Even if there were no applicable rule barring this change of position on
appeal, we would be inclined to consider the statement of McCammon's counsel as
invited error. See State v. Angelo, 287 Kan. 262, 280, 197 P.3d 337 (2008) (litigant may
not invite and lead a trial court into error and then complain of the trial court's action on
appeal).

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Even if we were to consider the sufficiency challenge on its merits, we would
reject the challenge. McCammon suggests the evidence was insufficient on the value of
the Chevrolet Suburban, but the affidavit contains a reference to a low value of $4,875
from the National Automobile Dealers Association appraisal guide for this vehicle.
McCammon also suggests the evidence was insufficient on his knowledge that the items
were stolen, but the affidavit contains information showing that the items were reported
stolen within 4 to 6 months of their discovery in McCammon's possession. Possession by
an accused of recently stolen property is sufficient to sustain a conviction of theft where a
satisfactory explanation is not given. See State v. McFall, 219 Kan. 798, 799, 549 P.2d
559 (1976); Jenkins v. U.S., 361 F.2d 615, 618-19 (10th Cir. 1966) (possession of an item
6 months after reported stolen sufficient to frame a jury question on "recently stolen").
Here, there was evidence beyond "recently stolen," including McCammon's
unsatisfactory explanations for his possession, the condition of the items indicating likely
theft, and the implications of the cumulative possession of several items including one
that McCammon admitted was known to be stolen. Applying our standard of review, the
totality of this evidence, viewed in the light most favorable to the prosecution, was
legally sufficient.

Affirmed.