State v. Martin

1

NOT DESIGNATED FOR PUBLICATION

No. 115,753

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRIAN MICHAEL MARTIN,
Appellant.

MEMORANDUM OPINION


Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed October 27,
2017. Reversed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., PIERRON and GREEN, JJ.

PIERRON, J.: Brian Michael Martin was charged with possession with intent to
distribute oxycodone, possession with intent to distribute alprazolam, possession of
marijuana, and possession of drug paraphernalia for baggies and/or scales. Martin pled
guilty to possession of marijuana, and a jury convicted Martin on the remaining counts.
Martin appeals, arguing the district court erred in denying his motion to suppress. He also
contends the district court erred in admitting evidence of other drug offenses at trial and
failing to give a limiting instruction. We reverse.

2

Around 12:40 a.m. on November 16, 2012, Corporal Ryan Sumner of the Lenexa
Police Department saw Martin make a wide right turn. As he followed Martin, Sumner
noticed Martin's license plate light was not working. Sumner said Martin was very still in
his seat when Sumner drove up behind him. Martin then looked in his rearview mirror
and became fidgety, frequently moving to his right.

After Sumner stopped Martin, he approached Martin's truck on the passenger side
for safety reasons. Sumner said Martin had one hand between his legs but soon placed his
hand somewhere Sumner could see it. Martin then leaned over and rolled down the
window, and Sumner noticed the smell of burnt marijuana.

Sumner called for a second officer to come to the scene. He was nervous because
Martin had been very fidgety and he could smell the odor of marijuana coming from
inside the truck. Sumner asked for Martin's driver's license and insurance. Sumner made
small talk as he waited for the backup officer to arrive. Sumner said he did not want to
leave the window because he did not want to take his eyes off of Martin.

Sumner asked Martin where he was going, and Martin said he was going to a
friend's house. Sumner later asked where the friend lived, and Martin replied, "He lives
over in Kansas City, Kansas. Actually, I think it's actually Johnson County still, maybe."
Sumner asked why Martin was taking this particular route, and Martin explained he did
not want to take the highway because of an issue with his truck.

Sumner asked if Martin had any weapons in the truck. Martin said he had some
knives, and produced a Leatherman multi-tool. Sumner asked Martin to place it on the
dashboard.

After the backup officer arrived, Sumner asked Martin to get out of the truck.
Sumner asked again if Martin had any weapons, and Martin said he had a small knife in
3

his pocket. At this point on the video of the stop, Martin placed his hands on the outside
of his pants. Sumner told Martin he did not want Martin to place his hands in his pockets.
Martin then lifted both hands and placed them on the side of the truck with his back to
Sumner without any verbal command or request from Sumner to do so. Sumner asked
Martin if he could search his pockets. Martin did not immediately respond, so Sumner
asked again and Martin said yes. There is no audio of Martin's response to Sumner's
question.

Sumner placed Martin's hands behind his back in order to better control him
during the search. Sumner told Martin he was not under arrest in case Martin mistakenly
thought Sumner was attempting to put him in handcuffs. Sumner stated, however, that
Martin was not free to leave.

Sumner testified he searched Martin for weapons at that time. During the search,
Sumner asked Martin when he had last smoked marijuana. Martin admitted he had
smoked earlier that night in the truck outside his home. Sumner asked if there was any
marijuana in the truck, and Martin said he did not know of any.

Sumner reached into the front breast pocket of Martin's jacket even though he had
not felt a weapon. In the pocket, he found a small Ziploc bag with two pills inside. He
recognized one of the pills as 80 milligrams of Oxycontin. Sumner also described the bag
as having panthers printed all over the front. Sumner asked if the pills belonged to
Martin. Martin said both the jacket and the pills belonged to Doug Fitzgerald, the
common-law husband of his mother, Allene Martin, and Fitzgerald would verify that.

After Sumner finished patting Martin down, he walked Martin behind the truck to
where the backup officer was standing. As Sumner was walking back towards the truck,
Martin admitted there was marijuana in the truck. Sumner searched the truck and found a
blunt and an Altoids can with marijuana residue inside. Sumner read Martin his Miranda
4

rights. Sumner asked Martin about the pills again because he believed Martin might be
selling them. Martin again said the pills belonged to Fitzgerald.

Sumner placed Martin in his patrol car and took him back to the police station.
Sumner told Martin that if he cooperated, his charges might be reduced or dropped.
Sumner said, however, that he could not make any promises. Martin agreed to cooperate,
and he provided Sumner with information regarding other people selling drugs.

Sumner then asked Martin if he had anything illegal in his home, and Martin said
he did. At the time, Martin was living in the basement of his mother's home in Olathe.
Sumner asked if he could search the room where Martin was staying, and Martin said he
could. Sumner went with Martin and another officer to Martin's home. Sumner could not
remember if he contacted the Olathe Police Department before going to Martin's home.

Sumner searched Martin's room and the garage. Martin showed the officer five
bags of needles in the garage, which they recovered. Sumner also recovered a black tray
with marijuana residue, a marijuana pipe, 22 small Ziploc bags identical to the one
Sumner found in Martin's pocket, 24 small clear Ziploc bags, and two digital scales.
Sumner found the items in a maroon bag.

During the search, Allene Martin, Martin's mother, confirmed that Fitzgerald had a
prescription for Oxycontin as well as 13 other medications. She also confirmed that
Martin was wearing Fitzgerald's jacket that night. She offered to show the officers the pill
bottles, but they told her it was not necessary. The officers did not wake up Fitzgerald or
interview him. Allene said he would be difficult to wake due to the medication he was
taking.

5

The officers did not take Martin into custody after the search of his home. They
released Martin on the condition that he would cooperate with narcotics detectives. To
Sumner's knowledge, however, Martin never worked as a confidential informant.

The State eventually charged Martin with possession of oxycodone with intent to
distribute, a severity level 4 drug felony; possession of alprazolam with intent to
distribute, a severity level 4 drug felony; possession of marijuana, a class A nonperson
misdemeanor; and possession of drug paraphernalia for the baggies and/or the scales, a
severity level 5 drug felony.

Martin filed a motion to suppress all the evidence from the traffic stop and the
search of his home. He argued the traffic stop and subsequent searches violated the
Fourth Amendment of the United States Constitution and § 15 of the Kansas
Constitution. After an evidentiary hearing, the district court found all evidence admissible
except for information Sumner had obtained from Martin's cell phone. The court found
Sumner had witnessed a traffic violation supporting the initial stop, and the odor of
marijuana coming from the truck provided probable cause for the search of Martin and
the truck. Finally, the court held that the Lenexa police officers were not acting outside
their jurisdiction because "Officer Sumner can act like any private citizen could in
visiting the Martin home."

Prior to the start of trial, Martin pled guilty to possession of marijuana. He
contemporaneously objected to the admission of evidence obtained during the search of
his person and his home.

Sumner testified at trial that in his experience the type of bag he found on Martin
was often used for selling illegal narcotics. He stated that during the interview at the
station, Martin admitted he had gotten the pills from Fitzgerald, and he was taking them
6

to his friend, Mark. Sumner stated Martin said he was not selling the pills but giving them
away for free. Martin said he had more of the small Ziploc bags back at his house and a
spoon with methamphetamine residue. Sumner testified one of the scales recovered from
Martin's home had a white residue on it indicative of methamphetamine.

Bob Minor, a forensic scientist at the Johnson County Sheriff's Crime Lab,
identified one of the pills as oxycodone. He identified the other pill as alprazolam. He
testified the items recovered from Martin's truck and home were marijuana.

Allene testified Fitzgerald was disabled due to problems with his spine, and he had
been on multiple prescriptions for several years. She said sometimes Fitzgerald would be
in excruciating pain, so he always carried a couple of pills with him in case he could not
get back home in time to take his medication.

Allene testified that Martin had recently moved back from Arizona and had little
warm clothing. Because of this, he sometimes borrowed Fitzgerald's clothing. On
November 16, 2012, Martin had borrowed one of Fitzgerald's jackets.

Fitzgerald testified that his spine was collapsing, and he took multiple medications
a day for his condition. In November of 2012, he was prescribed both Oxycontin and
alprazolam. He said he occasionally carried his medications in the pockets of his
clothing, and sometimes placed them in small plastic bags for protection. He verified that
Martin sometimes borrowed his clothing, including the jacket Martin had been wearing
on November 16, 2012. Fitzgerald had written an affidavit providing all this information
and gave it to Martin.

The jury convicted Martin on all counts. The district court made border box
findings and sentenced Martin to 18 months' probation with an underlying sentence of 56
months' imprisonment. Martin appeals.
7


On appeal, Martin argues the district court erred in denying his motion to
suppress. He contends the odor of marijuana alone is insufficient to support probable
cause to search a person. He also asserts he did not voluntarily consent to the search of
his person during the traffic stop. The State counters that the odor of marijuana alone
should be sufficient to support probable cause. Alternatively, the State argues Martin
consented to the search.

When reviewing a district court's ruling on a motion to suppress evidence, the
factual underpinnings of that decision are reviewed for substantial competent evidence
and the ultimate legal conclusion is reviewed de novo. State v. Cleverly, 305 Kan. 598,
604, 385 P.3d 512 (2016). When the district court denies a motion to suppress, the
moving party must object to the introduction of that evidence at the time it is offered at
trial to preserve the issue for appeal. State v. Richard, 300 Kan. 715, 726, 333 P.3d 179
(2014). Martin contemporaneously objected to the admission of evidence obtained during
the search of his person and his home.

The Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution protect against unreasonable searches and seizures. A warrantless search is
per se unreasonable unless it falls within one of the exceptions to the search warrant
requirement recognized in Kansas. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081
(2014). One exception to the warrant requirement is stop and frisk. Terry v. Ohio, 392
U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The State bears the burden of
demonstrating that a warrantless search was lawful. Cleverly, 305 Kan. at 605.

In a stop and frisk, an officer who has reasonable suspicion that a subject is armed
and dangerous may conduct a limited search of the suspect's outer clothing to determine
whether the suspect has weapons. State v. Spagnola, 295 Kan. 1098, 1106, 289 P.3d 68
(2012) (citing Terry, 392 U.S. 1). An officer is limited to the least intrusive means
8

available to confirm or dispel his or her suspicion. Spagnola, 295 Kan. at 1107. While
Sumner had reasonable suspicion to believe Martin might be carrying weapons, the
pocket search exceeded the scope of the stop and frisk because it was not the least
intrusive means by which Sumner could have confirmed or dispelled his suspicions. See
295 Kan. at 1107 (finding a pocket search exceeded the permissible scope of a stop and
frisk). Thus, there must be another exception to the warrant requirement to support the
expanded scope of the search.

Probable cause plus exigent circumstances is another exception which could
possibly support Sumner's search of Martin's person. State v. Stevenson, 299 Kan. 53, 58,
321 P.3d 754 (2014). Probable cause means "the totality of the circumstances indicates
there is a fair probability that the place to be searched contains contraband or evidence of
a crime." State v. Sanchez-Laredo, 294 Kan. 50, Syl. ¶ 2, 272 P.3d 34 (2012). "Exigent
circumstances exist where the law enforcement officer reasonably believes there is a
threat of imminent loss, destruction, removal, or concealment of evidence or contraband."
294 Kan. 50, Syl. ¶ 3.

In this case, Sumner did not have probable cause to search Martin's person. While
Kansas courts recognize a plain view or plain feel exception to the warrant requirement,
they have not adopted a "plain smell" exception. State v. Williams, No. 114,140, 2016
WL 7178288, at *3 (Kan. App. 2016) (unpublished opinion). The Kansas Supreme Court
has held that the odor of marijuana alone can provide probable cause to search a motor
vehicle. State v. MacDonald, 253 Kan. 320, 325, 856 P.2d 116 (1993). Nevertheless,
"[n]o Kansas case has applied the same rule to the search of a person." State v. Guein, 53
Kan. App. 2d 394, 408, 388 P.3d 194 (2017).

In State v. Smith, No. 103,736, 2011 WL 4563077, at *3-4 (Kan. App. 2011)
(unpublished opinion), the court held that the odor of marijuana was insufficient to
establish probable cause to search a person. The Smith court found that the odor of
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marijuana emanating from the defendant, the odor of perfume as a possible masking
agent, $370 in cash, and the defendant's nervousness did not provide probable cause for a
warrantless search of the defendant's person. The court first concluded the cash, the odor
of perfume, and the defendant's nervousness did not support a finding of probable cause.
2011 WL 4563077, at *4. As for the odor of marijuana, the court found, "Unless Kansas
adopts a 'plain smell' exception to the warrant requirement, the odor of raw marijuana
alone does not amount to probable cause." 2011 WL 4563077, at *4.

The State urges us to recognize that the odor of marijuana alone is sufficient to
support probable cause to search a person. In support of its argument, it cites to a number
of other jurisdictions that recognize the odor of marijuana emanating from a person as
sufficient to support probable cause to search or arrest that person. See, e.g., United
States v. Humphries, 372 F.3d 653, 658 (4th Cir. 2004) (recognizing that "odor of
marijuana alone can provide probable cause to believe that marijuana is present in a
particular place"); State v. T.T., 594 So. 2d 839, 840 (Fla. Dist. Ct. App. 1992) (holding
odor of marijuana emanating from a person sufficient to establish probable cause to
search person); State v. Yates, 162 N.C. App. 118, 122-23, 589 S.E.2d 902 (2004) (same);
State v. Moore, 90 Ohio St. 3d 47, 50, 734 N.E.2d 804 (2000) (same); State v. Cross, 23
Or. App. 536, 539, 543 P.2d 48 (1975) (same).

These cases are not binding on this court because of Williams and Guein.

Even if we were to adopt the precedent in these cases, however, it would not help
the State's case. As the State acknowledges, Sumner never testified he smelled the odor
of marijuana coming from Martin's person. Rather, he testified he smelled the odor of
burnt marijuana coming from Martin's truck. The State only cites to one jurisdiction that
has held the odor of marijuana in a vehicle is sufficient to support probable cause to
search a person. Adams v. State, 815 So. 2d 578, 581-82 (Ala. 2001).

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One of the State's own sources disavows the notion that the odor of marijuana in a
vehicle provides probable cause to search a person. As the Fourth Circuit explained in
Humphries,

"[w]hile the odor of marijuana provides probable cause to believe that marijuana
is present, the presence of marijuana does not of itself authorize the police either to
search any place or to arrest any person in the vicinity. Additional factors must be present
to localize the presence of marijuana such that its placement will justify either the search
or the arrest. In the case of a search, when the odor emanates from a confined location
such as an automobile or an apartment, we have held that officers may draw the
conclusion that marijuana is present in the automobile or the apartment. [Citations
omitted.] But probable cause to believe that marijuana is located in an automobile or an
apartment may not automatically constitute probable cause to arrest all persons in the
automobile or apartment; some additional factors would generally have to be present,
indicating to the officer that those persons possessed the contraband. [Citations omitted.]"
372 F.3d at 659.

The State contends this factual difference should not control the outcome in this
case. It argues that the odor of marijuana emanating from the truck was sufficient to
support probable cause because Martin was the only occupant of the truck. Nonetheless,
the standard of probable cause requires a fair probability that a particular place contains
contraband. Even if Martin was the only occupant of the truck, the circumstances still
would indicate the marijuana was in the truck, not on Martin.

The State also asserts that other factors supported probable cause to search Martin.
It notes Sumner testified that (1) Martin was fidgeting in his car before the stop, (2) he
provided answers about his traveling destination that did not make sense to Sumner, and
(3) he possessed a Leatherman and a small knife but did not admit to having the small
knife until he was asked to get out of his truck. Even assuming these factors would lead a
reasonable person to believe Martin possessed marijuana, the State does not explain how
11

these factors would lead someone to reasonably believe Martin was concealing marijuana
on his person rather than in his truck.

It may not be necessary to decide the probable cause issue, though, because
probable cause alone is insufficient to justify a warrantless search. Exigent circumstances
must also exist. Stevenson, 299 Kan. at 58. At the district court level, the State did not
allege that exigent circumstances supported the warrantless search of Martin's person.
Rather, the State argued that Martin consented to the search. At the appellate level, the
State has also not argued exigent circumstances existed; thus, any argument regarding
exigent circumstances has been abandoned. State v. Williams, 303 Kan. 750, 758, 368
P.3d 1065 (2016) (an issue not briefed by the appellant is deemed waived or abandoned).

Additionally, the district court did not make any fact-findings or legal conclusions
regarding exigent circumstances for us to review. Of course, we may presume the district
court made all findings and conclusions necessary to support its decision if no objection
was made. Dragon v. Vanguard Industries, Inc., 282 Kan. 349, 358, 144 P.3d 1279
(2006). Even if we were to presume the district court made findings regarding exigent
circumstances, however, these findings would not be supported by substantial competent
evidence. The State did not present any testimony from Sumner regarding any reasonable
belief of a threat that evidence would be lost or destroyed. See Williams, 2016 WL
7178288, at *4 (finding district court's conclusion that exigent circumstances existed was
not supported by evidence presented at suppression hearing). In fact, Sumner testified
that at the time of the search he was looking for weapons not marijuana or contraband.

The State may be trying to circumvent this problem by arguing that the search was
reasonable because Sumner chose the least intrusive means of verifying or dispelling his
suspicion. In support of its argument, the State cites to a Fifth Circuit case, United States
v. Johnson, 862 F.2d 1135, 1138 (5th Cir. 1988), which held, "Where officers face no
clear answer regarding which of two courses of conduct represents a greater intrusion on
12

citizens' privacy, the Fourth Amendment generally leaves the choice between those
alternatives to the discretion of law enforcement officials." In Johnson, police officers
had probable cause to believe two bus passengers were carrying drugs in their luggage.
Officers had the choice between searching the luggage of the passengers in private
without a warrant as the passengers awaited the departure of their bus or publicly
arresting the passengers, which would have been difficult and possibly dangerous. The
officers chose to search the luggage, and the Fifth Circuit upheld the search as
constitutional.

The State argues that similar to the officers in Johnson, Sumner was faced with the
choice of searching Martin's person or arresting Martin. Johnson, however, is factually
distinguishable from Martin's case. In Johnson, the officers had to decide between
searching private property and detaining bus passengers before their pending departure.
Here, Sumner searched Martin's person, not his property. Additionally, Sumner had
already detained Martin at the time of the search. Finally, Johnson is a federal case from
the Fifth Circuit. It presents only persuasive authority and is not binding on this court.

As an alternative, the State argues the evidence is admissible under the inevitable
discovery doctrine. The inevitable discovery doctrine is an exception to the exclusionary
rule which allows a district court to admit evidence discovered as the result of an
unconstitutional search if the evidence would have eventually been discovered in a legal
manner. State v. Baker, 306 Kan. 585, 590, 395 P.3d 422 (2017). The State contends even
without the initial search of Martin's person, Sumner would have searched the truck and
found the marijuana. Sumner would have then arrested Martin for possession of
marijuana and found the pills on Martin during a search incident to arrest.

This argument was not raised before the district court, and the State has not
explained why this argument should be heard for the first time on appeal. Generally, we
do not hear arguments for the first time on appeal unless the party raising the argument
13

explains why we should. See State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068
(2015).

Martin argues in a reply brief that Sumner could not have legally arrested him for
misdemeanor possession of marijuana without a warrant under K.S.A. 22-2401 given the
circumstances in this case. There is some precedent for Martin's argument. In State v.
Schur, 217 Kan. 741, Syl. ¶ 6, 538 P.2d 689 (1975), the Kansas Supreme Court held the
search incident to arrest exception did not justify the warrantless search of the defendant's
apartment because the defendant could not have been lawfully arrested for misdemeanor
possession of marijuana under an older but substantially similar version of K.S.A. 22-
2401. Nevertheless, because this issue was not raised below, the State did not present any
evidence regarding the applicability of K.S.A. 22-2401, nor did the district court make
any findings regarding this argument. See State v. Cockrell, No. 114,132, 2016 WL
3960449, at *5-6 (Kan. App. 2016) (unpublished opinion). Therefore, inevitable
discovery cannot be argued by the State.

Another exception to the search warrant requirement is consent. To establish valid
consent, the State must prove (1) clear and positive testimony that consent was
unequivocal, specific, and freely given; and (2) the absence of duress or coercion, express
or implied. Cleverly, 305 Kan. at 613. Whether consent was voluntary is an issue of fact
which appellate courts review to determine if substantial competent evidence supports the
district court's findings. State v. James, 301 Kan. 898, 909, 349 P.3d 457 (2015). If the
parties do not dispute the material facts, the suppression issue is solely a question of law.
Spagnola, 295 Kan. at 1104.

Here, the district court found probable cause supported Sumner's search of Martin
and Martin's truck. It did not make any findings regarding Martin's consent to the search.
Furthermore, it is clear from the record that Martin's consent to the search was not
voluntary.
14


In support of its argument that he did not consent, Martin directs us to Spagnola,
295 Kan. at 1100-01, in which the Kansas Supreme Court unanimously held that a
defendant's consent to let an officer search his pockets during a pat-down was not
voluntary. In that case,

"Officer Aaron Jones of the Topeka Police Department observed a car drive through an
intersection without stopping for a stop sign. Jones activated the lights of his patrol car
and signaled the car to pull over to the side of the road. As the car pulled over, it rolled
onto the curb and into a grassy area next to the curb and then back off of the curb before
coming to a complete stop. Jones saw the driver reach down toward his right side as he
pulled over, as if reaching into a pocket or the car console. Jones walked over to the car,
and Spagnola, who was driving, presented his driver's license.
"Jones returned to his patrol car and, concerned that Spagnola might be armed,
requested backup assistance. After the backup officer arrived, Jones returned to
Spagnola's car and asked him to step out of the car. As Spagnola was getting out of the
car, Jones asked him whether he had anything illegal in his possession. Spagnola replied
that he was working on a computer monitor for a friend and he thought the monitor might
have been stolen. Jones saw a small clip-on knife protruding from one of Spagnola's pant
pockets, and he removed the knife and then asked him whether he had anything illegal on
his person. Spagnola said, 'Other than a knife, no.' Jones informed him that the knife was
not illegal and inquired about drugs, knives, guns, needles, 'or anything like that.'
"After Spagnola said that he did not have any illegal items on his person, Jones
asked, 'Is it okay if I search your pockets?' Spagnola said, yes. Jones then asked Spagnola
to turn around, place his hands behind his back, and interlace his fingers. Jones again
asked for permission to search his pockets, and Spagnola again consented." 295 Kan. at
1100-01.

During the search of Spagnola, Jones found two bags of methamphetamine.
Spagnola filed a motion to suppress, but the district court denied it. The district court
later convicted Spagnola of possession of methamphetamine at a bench trial.

15

On review, the Spagnola court held that the traffic stop was valid, and Jones had
reasonable suspicion to extend the stop. 295 Kan. at 1104-05. The court found, however,
that the search impermissibly exceeded the scope of the stop and frisk exception. 295
Kan. at 1105-06. Finally, the court held that Spagnola's consent to the search was not
voluntary:

"Spagnola was standing outside of his car in the presence of more than one police
officer, one of whom had arrived as backup support. When Spagnola gave his second
permission for the search, he was standing with his back to the officers, with his hands
behind his back and his fingers interlaced. This was not a posture or an environment in
which it can be said that consent was voluntarily given free from coercion." 295 Kan. at
1108.

This case is factually very similar to Spagnola. Martin consented to a search while
outside his car, in the presence of more than one officer, the second of which arrived as
backup. See Spagnola, 295 Kan. at 1108 (noting "the presence of more than one police
officer may strongly suggest 'a coercive atmosphere'"). The video of the stop shows at
least one officer had his lights activated at the time of the search. Martin had his hands on
his truck with his back to Sumner when Sumner requested permission to search Martin's
pockets.

Because none of these facts are in dispute, we conclude as a matter of law that
Martin did not consent to the search. See, e.g., State v. Burton, 37 Kan. App. 2d 916, 923,
159 P.3d 209 (2007).

Next, Martin argues the Lenexa police officers did not have jurisdiction to search
his Olathe residence under K.S.A. 2016 Supp. 22-2401a. He argues when the Lenexa
officers searched his home they were exercising their police powers outside of their
jurisdictional authority. He asserts the evidence recovered from his home should be
suppressed. The State responds the Lenexa officers were not in violation of K.S.A. 2016
16

Supp. 22-2401a because they were not exercising their police powers. It also contends the
exclusionary rule is not appropriate in this case.

K.S.A. 2016 Supp. 22-2401a controls the territory in which a city law enforcement
officer may exercise his or her police powers. The statute states, in relevant part:

"(2) Law enforcement officers employed by any city may exercise their powers
as law enforcement officers:
(a) Anywhere within the city limits of the city employing them and outside of
such city when on property owned or under the control of such city; and
(b) in any other place when a request for assistance has been made by law
enforcement officers from that place or when in fresh pursuit of a person."

Within Sedgwick County or Johnson County, city law enforcement officers may execute
valid arrest or search warrants within county limits. K.S.A. 2016 Supp. 22-2401a(5). In
Johnson County, city law enforcement officers may also exercise their police powers in
any adjoining city within county limits after viewing the commission of a crime. K.S.A.
2016 Supp. 22-2401a(7).

Here, the district court found the Lenexa officers were not in fresh pursuit and the
Olathe Police Department had not requested their assistance. The court held, however,
that the Lenexa officers did not violate K.S.A. 2016 Supp. 22-2401a because they were
not exercising their police powers when they searched Martin's Olathe residence. The
court stated,

"Officer Sumner can act like any private citizen could in visiting the Martin home. An
officer in this context could engage in a voluntary knock and talk, and this is pretty much
what we had here. [There] was no objection to the search of the Martin residence in this
case."

17

The record supports the district court's findings that the exceptions listed under
K.S.A. 2016 Supp. 22-2401a(2) did not grant the Lenexa officers the authority to exercise
their police powers in Olathe. The district court did not make any specific findings under
subsections (5) and (7). As Martin argues, however, the record does not indicate that
either of these subsections applied.

This does not necessarily mean the Lenexa officers were acting without authority
under K.S.A. 2016 Supp. 22-2401a. The statute only constrains the exercise of police
powers. State v. Vrabel, 301 Kan. 797, 802, 347 P.3d 201 (2015). Therefore, a law
enforcement officer may act as a private citizen could in another jurisdiction. See State v.
Miller, 257 Kan. 844, 851, 896 P.2d 1069 (1995) (finding an officer acting outside the
scope of his or her powers under K.S.A. 22-2401a may still make a citizen's arrest).

Here, however, the Lenexa officers were not acting as private citizens. First, they
likely secured Martin's cooperation and agreement to a search through the influence of
their position as law enforcement. See State v. Robinson, 303 Kan. 11, 119-20, 363 P.3d
875 (2015), cert. denied 137 S. Ct. 164 (2016), disapproved of on other grounds by State
v. Cheever, 304 Kan. 866, 375 P.3d 979 (2016) (finding officers were exercising their
police powers when they used their position as law enforcement to secure cooperation of
private trash collector for trash pulls). It is unlikely that someone would agree to allow a
private citizen to search their home for contraband. Second, Sumner recovered marijuana
and drug paraphernalia from Martin's home. Private citizens cannot lawfully possess
contraband, even if their intent is to turn it over to law enforcement. See, e.g., Vrabel,
301 Kan. at 803 (noting a confidential informant cannot legally possess contraband to
give to police officers unless acting as an agent of law enforcement); State v. Calvert, 27
Kan. App. 2d 390, Syl. ¶ 1, 5 P.3d 537 (2000) (holding Kansas does not recognize
innocent possession as a justification for possession of contraband). Therefore, the
district court erred in finding the Lenexa officers were not in violation of K.S.A. 2016
Supp. 22-2401a because they were acting as private citizens.
18


On appeal, Martin argues that not only was the search unlawful under K.S.A. 2016
Supp. 22-2401a, it also violated his federal and state constitutional rights against
unreasonable searches and seizures. He contends his consent to the search was coerced
because Sumner told him his charges could be reduced or dropped in exchange for
cooperation.

The record indicates Martin's consent to the search of his home was not voluntary.
At the scene of the traffic stop there was coercion which led to incriminating statements,
the seizure of drugs, and a coerced consent to search his home.

As indicated above, the smell of marijuana under these facts did not provide
probable cause. There was no justification for searching Martin's breast pocket as there
obviously were no weapons there. There were two officers at the scene, the officers had
to repeat requests to get Martin to comply, and because it was not raised below by the
State, the inevitable discovery exception is not applicable.

Therefore, Martin's subsequent statement and consent were coerced and cannot be
used against him.

Because of this finding, we need not deal with Martin's other points on appeal.

Reversed.