State v. Hall

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NOT DESIGNATED FOR PUBLICATION

No. 115,370

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

MICHAEL ADAM HALL,
Appellee.


MEMORANDUM OPINION

Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed August 19, 2016.
Affirmed.

Laura L. Miser, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt,
attorney general, for appellant.

Stephen J. Atherton, of Atherton & Huth, of Emporia, for appellee.

Before POWELL, P.J., ARNOLD-BURGER, J., and WALKER, S.J.

POWELL, J.: The State appeals the district court's grant of Michael Adam Hall's
motion to suppress evidence derived from an inventory search of his vehicle. The district
court found law enforcement's impoundment of Hall's vehicle was contrary to the Lyon
County Sheriff Department's (Sheriff's) impoundment policy, making the impoundment
and subsequent inventory search unreasonable. While we agree with the State that the
impoundment was not contrary to the Sheriff's impoundment policy, under the totality of
the circumstances, we still find the impoundment unreasonable, thus rendering the
inventory search improper. Accordingly, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 2015, Deputy Heath Samuels stopped Hall for driving on a
suspended license. Samuels, also a member of the narcotics task force, had been
investigating Hall since August 2014 and knew Hall's license was suspended. Samuels
turned on his lights to make the stop; Hall turned into a private parking lot, parked the
car, and climbed into the backseat of the vehicle while the passenger moved to the
driver's seat. The parking lot was private property and had a no parking sign posted, yet
local traffic used the space at times as an alleyway.

Samuels first made contact with Hall and arrested Hall for driving on a suspended
license. Samuels located a pistol on Hall, and Hall informed him there was another gun in
the vehicle. Hall was in legal possession of these firearms. Officer Dominick Vortherms
of the Emporia Police Department, who was also present at the time of the stop, then read
Hall his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966). Vortherms also made contact with the passenger and requested proof of
insurance for the vehicle from her. She was unable to produce proof of insurance and was
arrested for "possible warrants." Proof of insurance was later found during the inventory
search of the vehicle.

Samuels impounded the vehicle. He testified this decision was based on the
Sheriff's impound policy which indicated that if the person driving or in control of the
vehicle was taken into custody, the vehicle may be impounded. He also testified that
Hall's disclosure of an additional firearm in the vehicle and where the vehicle was parked
influenced his decision to impound Hall's vehicle. Samuels did not give Hall the
opportunity to grant another authority to remove the vehicle because Hall had invoked his
right to an attorney. Later in the encounter, however, Samuels elicited information about
contraband located at Hall's residence after Hall had invoked his right to an attorney but
before such representation arrived. This questioning occurred prior to Hall's transfer to
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the Lyon County Jail and before Hall's vehicle was towed from the scene. Samuels
conducted the vehicle's inventory search which produced the proof of insurance for the
vehicle, seven firearms, ammunition, a plastic bag filled with white crystal, white pills,
and digital scales.

Hall filed a motion to suppress all evidence derived from the inventory search,
arguing the search was illegal because the impoundment of his vehicle was unreasonable.
The district court stated that based on the testimony, law enforcement impounded the
vehicle pursuant to the Sheriff's impound policy but, after reviewing the factual scenarios
provided in the policy, found there was nothing in the policy to support the
impoundment. Because none of the factual circumstances from the Sheriff's impound
policy were present in Hall's case, the court ruled the impoundment of the vehicle was an
unreasonable seizure, thus rendering the subsequent inventory search also unreasonable.
The district court suppressed all of the evidence derived from the inventory search.

The State timely appeals.

DID THE DISTRICT COURT ERR IN GRANTING THE MOTION TO SUPPRESS?

We review a district court's granting of a motion to suppress using a bifurcated
standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007). We review the
district court's factual findings to determine whether they are supported by substantial
competent evidence while the ultimate legal conclusion is reviewed de novo. 284 Kan. at
70. In reviewing the district court's factual findings, we do not reweigh the evidence or
assess the credibility of witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367
(2014).

The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. A search and seizure of evidence conducted without a warrant is
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"per se unreasonable . . . subject only to a few specifically established and well-
delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed.
2d 576 (1967). One of these few exceptions is inventory searches of lawfully impounded
vehicles conducted pursuant to standardized policy procedures. State v. Teeter, 249 Kan.
548, Syl. ¶¶ 1, 2, 819 P.2d 651 (1991). Inventory searches serve three purposes: (1) the
protection of the owner's property while in police custody, (2) the protection of the police
against claims or disputes over lost or stolen property, and (3) the protection of the police
from potential danger. South Dakota v. Opperman, 428 U.S. 364, 369, 96 S. Ct. 3092, 49
L. Ed. 2d 1000 (1976).

An inventory search of a vehicle is valid only if the police first obtain lawful
possession of the vehicle as authorized by statute or ordinance. State v. Boster, 217 Kan.
618, 624, 539 P.2d 294 (1975), overruled on other grounds by State v. Fortune, 236 Kan.
248, 689 P.2d 1196 (1984). If express authority to impound the vehicle does not exist,
law enforcement may still take

"lawful custody of a vehicle when there are 'reasonable grounds' for impoundment.
[Citations omitted.] . . . [T]he following [are] examples of what might be considered
reasonable grounds for impoundment:

'. . . [T]he necessity for removing (1) an unattended-to car
illegally parked or otherwise illegally obstructing traffic; (2) an
unattended-to car from the scene of an accident when the driver is
physically or mentally incapable of deciding upon steps to be taken to
deal with his property, as in the case of the intoxicated, mentally
incapacitated or seriously injured driver; (3) a car that has been stolen or
used in the commission of a crime when its retention as evidence is
necessary; (4) an abandoned car; (5) a car so mechanically defective as to
be a menace to others using the public highway; (6) a car impoundable
pursuant to ordinance or statute which provides therefor as in the case of
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forfeiture. . . . [Citations omitted.]'" 217 Kan. at 624 (quoting State v
Singleton, 9 Wash. App. 327, 332-33, 511 P.2d 1396 [1973]).

The State has the burden to prove the reasonableness of the impoundment under
the totality of the circumstances. State v. Shelton, 278 Kan. 287, 293, 93 P.3d 1200
(2004).

While the State does not assert that the impoundment of Hall's vehicle was
expressly authorized by statute or local ordinance, the State does complain the district
court's finding that the impoundment was not consistent with the Sheriff's impoundment
policy, thus rendering the impoundment unreasonable, is unsupported by substantial
evidence. We agree.

The district court referred to sections 3 and 4 of the Sheriff's impoundment policy
and then reviewed the factual scenarios provided in those sections of the policy to
conclude that the facts in the present case did not match any of those scenarios, meaning
the impoundment was not pursuant to the policy and therefore was unreasonable. While
we acknowledge the Sheriff's impoundment policy is cumbersome, and even by the
State's admission not well drafted, section 8.d.ii. of the policy clearly allows for the
impoundment of a vehicle when the owner or operator has been arrested. That section of
the policy states in relevant part:

"8. Vehicle may be impounded for the following reasons:
. . . .
d. Other
i. When a vehicle, because of faulty equipment, is determined to be a
hazard
ii. If the owner/operator has been arrested. The arresting officer may
turn the vehicle over to a third person at the operator's request
iii. At the request of the owner/operator." (Emphasis added.)
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As it is uncontroverted in the record that the owner/operator—Hall—was arrested,
it was error for the district court to conclude that the impoundment of the vehicle was not
in accordance with the Sheriff's impoundment policy.

The district court's erroneous finding notwithstanding, compliance with the
Sheriff's impoundment policy is just one factor to consider in evaluating the
reasonableness of the impoundment. See State v. Branstetter, 40 Kan. App. 2d 1167,
1172, 199 P.3d 1272, rev. denied 289 Kan. 1281 (2009). The State argues the
impoundment was reasonable because of the vehicle's location, the lack of proof of
insurance, and the admission by Hall that there was a gun in the car. We will examine
each of these factors as they bear on the reasonableness of the impoundment.

First, regarding the location, the State argues that even though the vehicle was
parked on private property, there was a no parking sign posted and the area frequently
served as an alleyway for traffic. While the record supports those contentions, the record
contains no evidence that the vehicle would have hampered such traffic or would have
been a safety hazard of some kind.

Second, as to inability of the passenger to produce proof of insurance for the
vehicle, the State argues that the officers had no reason to believe the vehicle could be
lawfully operated on a public roadway and cites State v. Bennett, No. 108,616, 2013 WL
3970199 (Kan. App. 2013) (unpublished opinion), rev. denied 299 Kan. 1271 (2014), for
support.

In Bennett, after the defendant was pulled over for speeding, law enforcement
determined the vehicle lacked proper registration and Bennett's driver's license was
suspended. Without consulting the defendant, law enforcement ordered the vehicle to be
towed and impounded. The inventory search revealed cocaine in the center console of the
vehicle. Relying on United States v. Hannum, 55 Fed. Appx. 872 (10th Cir. 2003), the
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Bennett panel held that given the fact the vehicle had expired registration and the
defendant did not have a valid driver's license, the vehicle could not be lawfully operated
on the highway and, therefore, the impoundment was reasonable. 2013 WL 3970199, at
*2-3.

In Hannum, Detective Scott Higgins of the Labette County Sheriff's Department
spotted a vehicle without proper registration being driven by Hannum and activated his
patrol car's emergency lights. Hannum pulled into the parking lot of a convenience store
and parked. In response to Higgins' inquiries, Hannum replied that the car belonged to
Tina Tollette and that he had no registration documents or proof of insurance. The
sheriff's department had information that Hannum was living with a woman named Tina,
who Higgins assumed was the same person, and had received information a few days
earlier that Hannum's home contained a methamphetamine laboratory. Apparently
Higgins was unable to contact Tina as the owner of the vehicle. Based upon the lack of
proper registration and proof of insurance, Higgins decided to impound the vehicle and
conduct an inventory search. Higgins and another detective found a shotgun and drug
paraphernalia that tested positive for methamphetamine.

Hannum moved to suppress the evidence found in the car on the grounds that the
impoundment was improper, principally arguing that he should have been given the
opportunity to arrange for the proper disposition of the car. The Tenth Circuit Court of
Appeals rejected this argument, holding that "impoundment constitutes a proper exercise
of [law enforcement's community caretaking] function when a motorist cannot produce
proper registration or proof of insurance." 55 Fed. Appx. at 876.

While it is true that both Bennett and Hannum support the proposition that a
failure to be able to legally operate a vehicle on public roads constitutes reasonable
grounds for impoundment, the record does not support such a finding here because the
facts of the present case are different from the cases relied upon by the State as there is
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insufficient evidence in the record to show Hall's car was not properly registered or
insured at the time of the stop. Under Kansas law an owner of an uninsured vehicle is not
permitted to allow the operation of the vehicle upon a Kansas highway, a person is not
permitted to knowingly operate an uninsured vehicle upon a Kansas highway, and an
operator of a vehicle is required to produce evidence of financial security on demand.
K.S.A. 2015 Supp. 40-3104(b), (c), and (d)(1). However, the failure to provide proof of
insurance is not the same as failing to insure a vehicle, and a person who produces
evidence of financial security that was in effect at the time of the stop within 10 days of
the citation or arrest cannot be guilty of any of the provisions cited above. K.S.A. 2015
Supp. 40-3104(e).

Undermining law enforcement's actions here is the fact that neither officer asked
Hall whether his vehicle was insured or asked him to produce proof of insurance as
required by law. Had they done so, Hall likely could have easily produced proof of
insurance. The State defends the officers' decision to ask the passenger instead on the
grounds that Hall had invoked his Miranda rights. But demanding that a driver produce
proof of insurance is not asking that person for a statement; it is asking the person to
produce a document. See People v. Goodin, 257 Mich. App. 425, 430, 668 N.W.2d 392
(2003) (motorists have no Fifth Amendment privilege to refuse to produce their driver's
license, registration, and name and address). Given the fact that neither officer inquired of
the owner and operator of the vehicle (Hall) to produce proof of insurance, and as the
inventory search ultimately uncovered the required proof of insurance for the vehicle, we
are unwilling to agree that law enforcement's initial inability to obtain proof of insurance
from the passenger prior to the vehicle's impoundment supported its conclusion the
vehicle could not be operated on a public highway, thereby justifying the vehicle's
impoundment.

Third, the State also argues that the presence of a gun in the vehicle required
officers to secure the vehicle for safety reasons. The record shows that Hall voluntarily
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informed the officers that he had a gun on him and that there was a gun in the vehicle.
The officers took possession of the gun that was on Hall, and the inventory search found
several guns in the trunk. However, if the law enforcement officers were truly concerned
about their safety or the safety of others, they could have searched the passenger
compartment of the vehicle as a search incident to arrest and seized any weapons found
inside. State v. Julian, 300 Kan. 690, 694, 333 P.3d 172 (2014) ("officer 'as a
contemporaneous incident of that arrest' may search the passenger compartment of the
vehicle"), overruled on other grounds by State v. James, 301 Kan. 898, 349 P.3d 457
(2015). Any weapons in the trunk were secure inside. Given that K.S.A. 2015 Supp. 75-
7c01 et. seq., the Kansas Personal and Family Protection Act, allows citizens to freely
carry weapons unless they fall under a specific prohibition, and nothing in the record
shows Hall could not legally possess firearms, we agree with Hall that allowing the car to
remain with the weapons locked inside the trunk did not constitute a security problem
justifying the impoundment.

Finally, the State argues that the fruits of the search are admissible under the
doctrine of inevitable discovery. Specifically the State argues that if the vehicle had
remained on private property due to Hall's arrest, the property owner very likely could
have contacted the police department to have the vehicle removed, after which the
vehicle would have been subject to an inventory search. However, this issue was not
raised before the district court, and issues not raised before the trial court cannot be raised
on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Even if we could
address the merits of this argument, we would reject it as mere speculation. See Nix v.
Williams, 467 U.S. 431, 444 & n.5, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984) ("inevitable
discovery involves no speculative elements but focuses on demonstrated historical facts
capable of ready verification or impeachment").

Accordingly, we find the impoundment of Hall's vehicle to be unreasonable under
the totality of the circumstances presented and, therefore, affirm the district court's
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suppression of the evidence obtained by the inventory search of the vehicle. See State v.
Bryant, 272 Kan. 1204, 1210, 38 P.3d 661 (2002) ("[T]he trial court will not be reversed
if it is right, albeit for the wrong reason.").

Affirmed.

* * *

ARNOLD-BURGER, J., concurring: I agree with my colleagues that the judgment of
the district court must be affirmed. Based on the totality of the circumstances, the
impoundment of Hall's vehicle was clearly unreasonable. But I write separately simply to
express my belief that the district court's finding that the impoundment was inconsistent
with the Lyon County Sheriff Department's own impoundment policy was supported by
substantial evidence, contrary to the majority's finding herein. I believe the officers'
actions were inconsistent with the policy, thus further bolstering the overall finding that
the items obtained from the subsequent inventory search must be suppressed.

The Sheriff's impoundment policy is not complicated and I would suggest not
difficult to understand. It closely follows existing statutory law and caselaw, and in fact
specifically cites to both in support of many of the sections. It first correctly sets out that
impoundment is to be the exception, not the rule:

"Except in cases where impoundment of a motor vehicle is mandatory under the law,
required for asset forfeiture or necessary for preservation of evidence, towing and
impoundment should be a last resort after all other reasonable options have been
exhausted."

Next, it requires officers to make reasonable efforts to notify owners and give
them an opportunity to move their vehicles to an area of safety.
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"Officers shall make reasonable efforts to notify owners and provide them the
opportunity to remove the motor vehicle to a place of safety when practicable."
(Emphasis added.)

It next lists eight specific situations in which a vehicle may be impounded, none of
which apply to the facts of this case, nor does the State argue they apply. And it lists one
situation in which vehicles must be impounded—when the engine number or
identification number have been destroyed, indicating the vehicle may have been stolen.
That provision is also not alleged to be applicable to the facts of this case.

In case the policy was not clear before, it reiterates that if the owner is readily
available and can make a decision about the disposition of the vehicle the owner is free to
do so.

"If the owner, operator, or person in charge of the vehicle is readily available to make a
determination as to the disposition of the vehicle, then he may do so. If the person
responsible for the vehicle desires the vehicle be left lawfully parked upon the streets or it
be turned over to some other person's custody, then, absent some other lawful reason . . . ,
the wishes of the owner must be followed." (Emphasis added.)

We then come to the part of the policy relied upon by the State. Section 8 of the
policy lists the reasons a vehicle may be impounded. Highly summarized, a vehicle may
be impounded if it is used in a crime or contains evidence of a crime, if it is crashed, if it
is abandoned, if it is a hazard, if the owner requests it be impounded, or "[i]f the
owner/operator has been arrested. The arresting officer may turn the vehicle over to a
third person at the operator's request." These are the reasons a vehicle may be
impounded. But to read this section independently from the rest of the policy makes one
wonder why the other provisions are even necessary. For example, if a vehicle can be
impounded whenever a person is arrested, why does Section 3(f) only permit
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impoundment if the person is arrested and the vehicle is on the highway? By interpreting
Section 8(d)(ii) the way the State insists we do, Section 3(f) becomes superfluous. Instead
the document must be read as a whole. Section 8 must be read as the reasons that underlie
the circumstances listed in Section 3. In fact, all of the reasons in Section 8 are
manifested in some way in the circumstances in Section 3.

And the primary consideration remains, as stated in the very first two provisions of
the policy, impoundment is the last resort and the officer is required to make all
reasonable efforts to allow the owner to remove the vehicle to a place of safety. Our
Supreme Court has made it clear that consultation with the driver regarding disposition of
the vehicle, although not the only factor, is an important factor to consider in determining
the reasonableness of the impoundment decision. State v. Shelton, 278 Kan. 287, 295-96,
93 P.3d 1200 (2004). Clearly the Sheriff's policy deems it an important factor, if for no
other reason than the mandatory language it uses and the number of times it mentions it
in the policy.

So although the majority finds the evidence insufficient to support the district
judge's finding that the police violated the Lyon County Sheriff Department's
impoundment policy, I believe the evidence was sufficient and believe that this further
bolsters the finding of this court that the motion to suppress was properly sustained.