State v. Teschke

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NOT DESIGNATED FOR PUBLICATION

No. 121,189

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

CHRISTOPHER TESCHKE,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; TIMOTHY P. MCCARTHY, judge. Opinion filed January 10,
2020. Reversed and remanded with directions.

Kendall Kaut and Jacob M. Gontesky, assistant district attorneys, Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general, for appellant.

Megan L. Harrington, of Overland Park, for appellee.

Before GARDNER, P.J., BUSER, J., and LAHEY, S.J.

PER CURIAM: The State charged Christopher Teschke with one count of criminal
threat. Teschke sought to exclude as evidence a knife discovered in his vehicle at the time
of his arrest. After the district court granted Teschke's motion to suppress the evidence,
the State filed this interlocutory appeal. Because we find the district court erred, we
reverse the district court's suppression order and remand the case for further proceedings.

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FACTUAL AND PROCEDURAL BACKGROUND

The incident

Police arrested Teschke in April 2018 after he was involved in a vehicle collision
in a highway construction zone near the intersection of I-435 and Metcalf in Johnson
County. Bryan Fite was in the left lane of stop-and-go traffic on his way home from work
that day. Because of the construction, he needed to merge right into the next lane of
traffic. He signaled, saw an opening, and as he moved right, he made contact with
Teschke's car. The contact resulted in a slight scratch in the paint above the right front
wheel well and bumper of Fite's car. Minimal damage to Teschke's car was on the driver's
door.

Notwithstanding this minimal impact at 5-10 miles per hour, both drivers rolled
down their windows and exchanged heated words and obscenities. Each threatened to
kick the other's ass. According to Fite, Teschke then held a knife out of the car window,
shook it, and threatened to kill him. Fite described the knife he saw as black in a black
sheath.

Fite was able to get Teschke's license plate number and called it in to the Overland
Park Police Department, which asked Fite to pull off the highway and wait for an
officer's arrival.

Officer Derek Ledgerwood testified that the license plate that Fite called in
returned to Teschke with an address in Lenexa. After meeting with Fite on the highway
and obtaining Teschke's address, Ledgerwood and his field training Officer Nicholas
Berkland went to Teschke's home where Ledgerwood spoke with him.

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In response to Ledgerwood's questions, Teschke admitted that he was involved in
an accident on the highway and there was an altercation with the other driver. Teschke
said that he had his cellphone in his hand, held up his hands, and motioned for the other
driver to pull over. The other driver kept going, so Teschke drove home. Teschke denied
he held a knife up to the other driver.

However, Teschke also admitted to Ledgerwood that he had a knife in his vehicle,
which he described as black and in a black sheath. At that point, believing he had
probable cause of a crime, Ledgerwood hand cuffed Teschke and placed him under
arrest. Ledgerwood read Teschke his Miranda rights, and Teschke continued to cooperate
and answer questions in Ledgerwood's patrol car. See Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

While Ledgerwood and Teschke were in the patrol car, Berkland walked along the
driver's side of Teschke's vehicle, which was parked in his driveway. He looked in the
window and saw what appeared to be a knife tucked between the driver's seat and the
center transmission tunnel. Berkland then went to Teschke and asked him where the knife
was located—in part to test his veracity. Teschke said that the knife "would be either
under the driver's seat or next to it."

After receiving that information, the two officers went to Teschke's car to locate
the knife. Ledgerwood saw the knife in Teschke's vehicle after Berkland opened the car
door. Ledgerwood described the knife as black and with a black sheath, tucked between
the driver's seat and the center console. He took photos of the knife in this location and
then removed it from the vehicle.

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The motion to suppress

Teschke filed a motion to suppress as evidence the knife seized from his car
without a warrant. In the motion, Teschke claimed he did not consent to the search of his
vehicle, and he argued the police did not conduct a proper inventory search to justify the
search without a warrant. The State disagreed but also argued that other exceptions to the
warrant requirement applied to allow the search—specifically, the automobile exception,
plain view exception, and search incident to a lawful arrest.

Ledgerwood and Berkland were the only witnesses who testified at the motion to
suppress hearing. At the conclusion of the hearing, the district court granted the
suppression motion and ruled the knife could not be used as evidence at the trial. The
State timely filed its notice of interlocutory appeal.

DID THE DISTRICT COURT ERR IN FINDING THERE WAS SUBSTANTIAL COMPETENT
EVIDENCE TO SUPPORT GRANTING TESCHKE'S MOTION TO SUPPRESS EVIDENCE?

The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. State v. Ramirez, 278 Kan. 402, 404, 100 P.3d 94 (2004). Any
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). In this appeal, the State contends that two exceptions to the
warrant requirement apply to the facts of this case—the search incident to arrest
exception and the automobile exception. The State bears the burden of proving the search
and seizure were lawful. K.S.A. 22-3216(2); State v. Gray, 306 Kan. 1287, 1302, 403
P.3d 1220 (2017).

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Standard of Review

When reviewing a district court's ruling on a motion to suppress evidence, we
review the factual underpinnings of the decision by a substantial competent evidence
standard and the ultimate legal conclusion drawn from those facts by a de novo standard.
The ultimate determination of the suppression of evidence is a legal question requiring
independent appellate review. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018)
(regarding warrantless search of vehicle); State v. Talkington, 301 Kan. 453, 461, 345
P.3d 258 (2015) (same dual standard of review applies to State's appeal of trial court's
grant of defendant's motion to suppress). However, "'[w]hen the facts supporting the
district court's decision on a motion to suppress are not disputed, the ultimate question of
whether to suppress is a question of law over which the appellate court exercises
unlimited review. [Citations omitted.]' State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966
(2018)." State v Fisher, 57 Kan. App. 2d ___, 453 P.3d 359, 363 (2019).

Search incident to arrest

We note that the district court failed to address or even allude to the search
incident to arrest exception in any way during its oral ruling granting the suppression
motion. This failure is contrary to K.S.A. 2018 Supp. 60-252(a) and Kansas Supreme
Court Rule 165(a) (2019 Kan. S. Ct. R. 221), which both require the district court to
make findings of fact and conclusions of law in connection with its rulings. We are
unable to discern why the district court evidently found the search incident to arrest
exception was not applicable or why it did not mention this exception in its ruling.
Notwithstanding the district court's failure in this regard, our review of the motion
hearing transcript shows the facts surrounding the search are not in dispute, and we view
the suppression issue as a question of law. See State v. Stevenson 299 Kan. 53, 57, 321
P.3d 754 (2014).

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Under the search incident to arrest exception, officers may search a vehicle
incident to the arrest of a recent occupant if it is reasonable to believe the vehicle contains
evidence of the offense of arrest. Arizona v. Gant, 556 U.S. 332, 351, 129 S. Ct. 1710,
173 L. Ed. 2d 485 (2009). "[C]ircumstances unique to the vehicle context justify a search
incident to a lawful arrest when it is 'reasonable to believe evidence relevant to the crime
of arrest might be found in the vehicle.' Thornton, 541 U.S., at 632 (Scalia, J., concurring
in judgment)." Gant, 556 U.S. at 343.

In this case, Teschke was the recent occupant of a vehicle who had been arrested
for aggravated assault and was ultimately charged with criminal threat. The record
reveals ample evidence for the police to reasonably believe that the knife used in the
alleged crime was in Teschke's car. After all, Fite told police that Teschke had a knife in
his car and used it to threaten him. Teschke admitted that he had a knife in his car that
matched the description of the knife Fisk described. And after his arrest, Teschke told
police where it was located in the car. Because the record contains substantial competent
evidence to find that the police had a reasonable belief that evidence relevant to the crime
was in the vehicle, we find that the search incident to a lawful arrest exception to the
warrant requirement applies to the facts of the case, and we find the search does not
violate the Fourth Amendment.

The automobile exception

The district court directly addressed the automobile exception in its ruling as
follows:

"[T]he things that the court is basing its decision on is that number one, that this isn't a
car stop. I understand there is a lot of cases in this realm, but I don't believe that this is
one. The defendant's car was in his driveway with a police vehicle parked behind it. I
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don't believe that there were any exigent circumstances in this nor have I seen any in the
prelim or in this hearing."

The search of an automobile is permitted if there is probable cause. The mobility
of the vehicle provides the exigent circumstances without the necessity of proving
anything more. State v. Howard, 305 Kan. 984, 990, 389 P.3d 1280 (2017).
"'Probable cause' to search a vehicle can be established if the totality of the circumstances
indicates there is a 'fair probability' that the vehicle contains contraband or evidence."
State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012).

The district court did not address whether there was probable cause to search the
vehicle. However, the record reveals Teschke—without any awareness that Fisk reported
or described Teschke's knife to police—said he was in an altercation on the highway,
confirmed that he held up an object at Fisk, admitted he had a knife in his vehicle,
described it consistently with Fisk's description, and informed police it was within reach
of the driver's seat. These circumstances indicate there was a fair probability that the
vehicle contained a knife, which was evidence of the crime of criminal threat.

The district court ruled there were no exigent circumstances because the vehicle
was not involved in a traffic stop and it was parked on a driveway. But the mobility of
Teschke's vehicle in his open driveway provided the exigent circumstances without the
necessity of proving anything more. The vehicle itself provides the exigent circumstances
to support the search. State v. Davis, 31 Kan. App. 2d 1078, 1083-84, 78 P.3d 474
(2003), rev. denied 277 Kan. 925 (2004). The police had probable cause in light of all the
circumstances to search for the knife. The record contains substantial competent evidence
to apply the automobile exception to the warrant requirement. Thus, we find the district
court's finding of no exigent circumstances to be in error.

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Curtilage

For the first time on appeal, the parties engage in extended argument whether
Teschke's car was parked within the curtilage of his home. The State initially raised the
issue by arguing that the car was not parked within the curtilage. Teschke responded by
arguing that his car was parked within the curtilage and, consequently, the search could
not be justified under either the automobile or the search incident to arrest exceptions.
Notwithstanding that it raised the curtilage issue in its brief, the State ultimately
complains that it did not have notice of the curtilage issue in the district court and had no
opportunity to develop the record to address the contention.

Our review of the record below discloses the curtilage issue was never raised in
the district court. And issues not raised before the district court cannot be raised on
appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014).

There are several exceptions to the general rule that a new legal theory may not be
asserted for the first time on appeal, including: (1) the newly asserted theory involves
only a question of law arising on proved or admitted facts and is finally determinative of
the case; (2) consideration of the theory is necessary to serve the ends of justice or to
prevent denial of fundamental rights; and (3) the judgment of the trial court may be
upheld on appeal despite its reliance on the wrong ground or having assigned a wrong
reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).

Importantly, Kansas Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34)
requires an appellant to explain why an issue not raised below should be considered for
the first time on appeal. In State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014),
the Kansas Supreme Court held that litigants who fail to comply with this rule risk a
ruling that the issue is improperly briefed and the issue will be deemed waived or
abandoned. Thereafter, our Supreme Court held that Rule 6.02(a)(5) would be strictly
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enforced. State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015). Neither Teschke
nor the State assert an exception to the general rule that we will not consider issues not
raised before the district court. As such, we decline to consider this issue on appeal.

We acknowledge that Collins v. Virginia, 584 U.S. ___, 138 S. Ct. 1663, 201 L.
Ed. 2d 9 (2018), regarding the curtilage issue has since been decided by the United States
Supreme Court and forms the basis for the parties' extended curtilage argument. We note
that the district court did not have this opinion at its disposal when rendering its decision.
Nothing in this opinion should be construed as a ruling one way or another on Collins'
applicability, and the issue may be raised on remand. See State v. Greever, 286 Kan. 124,
132, 183 P.3d 788 (2008) (holding although issue not raised below is precluded on
appeal, issue may be raised on remand).

We reverse the order of the district court suppressing the knife as evidence and
remand this matter for further proceedings.

Reversed and remanded with directions.