No cause to look in cigarette package

Washburn student intern Sean G. Whittmore and I won in State v. Johnson, No. 100,728 (Kan. March 2, 2012), obtaining reversal of a Sedgwick County drug conviction. The main issue was whether officers had a basis for looking in a cigarette package taken out of Ms. Johnson's purse during an investigatory detention. During the investigation, Ms. Johnson reached into her purse to get a cigarette, but the officer refused permission. Nonetheless, Ms. Johnson still reached for her cigarettes, at which time the officer took the cigarette package and looked in it for "officer safety purposes" finding some drugs.

The KSC held that the officer was justified in seizing the cigarette package for officer safety, but not searching it:

Courts in other states also have held that a search of a seized cigarette pack exceeded permissible law enforcement action under Terry.

The result and reasoning of our Court of Appeals and our sister states is sound. Indeed, if Tucker's alternate recitation of the order of events is believed, he placed the unopened cigarette pack on top of Johnson's purse within her reach on the kitchen counter. If he, in fact, did so, no action could more convincingly demonstrate that he perceived no danger to himself or his fellow officers. Once Tucker secured the pack of cigarettes, any nonhysterical threat its contents may have posed was eliminated and no further search was permitted.

We also note that the prosecutor's insistence at oral argument that a ruling in Johnson's favor on this point would expose law enforcement officers to a new and unacceptable risk is misguided. To the extent there is a threat, it is not new; and our legislature evidently deemed it acceptable. K.S.A. 22-2402(2)—again, a Kansas codification of Terry—specifically allows an officer to seize and keep only items "the possession of which may be a crime or evidence of crime . . . until the completion of the questioning, at which time such officer shall either return it, if lawfully possessed, or arrest such person." It does not permit a general search of any seized item not immediately recognizable as an unlawfully possessed weapon or other evidence of a crime. There may be those who believe smoking to be unwise but, so far, those who
indulge in it in private residences are not subject to criminal prosecution. With no authority to search the seized cigarette pack, Tucker was permitted to hold onto it until he finished questioning Johnson. Then he was required to return it to her and let her continue about her business. Without the unlawful search of the cigarette pack and the cascade of events that followed it, there was not a basis for Johnson's arrest.

The state also tried, for the first time in its petition for review and in a supplemental brief, to argue that a person does not have an expectation of privacy in a cigarette package. The KSC held that such an argument had been waived:

The State did not make an issue of the sufficiency or quality of Johnson's expectation of privacy either before the district court or before the Court of Appeals. The prosecutor admitted at oral argument before this court that the issue's sudden appearance in the supplemental brief is directly attributable to Judge Hill's dissent from the panel majority. Judge Hill took the position that an individual has a reduced expectation of privacy in a cigarette pack.

We generally refuse to consider an issue on appeal if it has not been raised in the district court. Specifically, we have rebuffed a defendant's effort to advance new reasons to support suppression for the first time on appeal. What is sauce for the goose is sauce for the gander, and the State's mirror image effort to advance new reasons to avoid suppression must likewise be rejected.

So the case is remanded with directions to suppress the evidence.