Rick Kittel won in State v. Thayer, No. 117,900 (Kan. App. September 21, 2018)(unpublished) reversing Reno County convictions of possession of methamphetamine, possession of marijuana, and possession of drug paraphernalia.
Mr. Thayer was driving a car that was stopped by police because he was not wearing a seatbelt. The police officer noticed an odor of alcohol coming from Thayer’s car. The officer could see several bladed weapons in the back seat of the car. Thayer acted “twitchy” and seemed to have difficulty focusing and communicating. He could not produce a driver’s license or proof of insurance. Mr. Thayer was asked to get out of the car to perform field sobriety tests. Once out of the car, the officer asked Mr. Thayer if there were any weapons on his person. Mr. Thayer said he had a knife on his belt. The officer conducted a pat-down and found and removed thirteen knives from around his waistband. Mr. Thayer was asked if he had other weapons on his person. He responded that he did not think there were other weapons on his person. The officer continued the pat-down and felt an object in Mr. Thayer’s front pocket. At this point there was a dispute as to what occurred. The officer claimed that he asked Mr. Thayer for permission to search the pocket, which was granted. Mr. Thayer denied that he gave the officer consent to search his pocket. The officer removed the object from Mr. Thayer’s pocket. It was a box that contained a pipe and marijuana. Methamphetamine was also found in the pocket. Thayer was charged with offenses set forth above.
Prior to trial, Mr. Thayer filed a motion to suppress challenging the search of his pocket, claiming that he had not given consent. There was a dash cam video of the interaction between Mr. Thayer and the officer, but for reasons the state could not explain, the audio function during some portions of the video did not work.
The district court found that, although the state had not met its burden to show consent, the drugs on Mr. Thayer’s person would have been inevitably discovered during a lawful search for failure to provide proof of liability insurance. Applying the inevitable discovery rule, the district court denied suppression of evidence.
A majority of the COA reversed finding that the district court had improperly applied the inevitable discovery rule. After examining the record, the COA found no evidence to show that the officer intended to arrest Mr. Thayer for failure to produce proof of insurance prior to the search of Mr. Thayer’s pocket and the discovery of the drug contraband. Without such evidence there was no showing that the evidence would have inevitably been discovered. The convictions were reversed and the case remanded to the district court for further proceedings.
[Update: the state filed a PR on October 16, 2018.]
[Further update: the KSC denied the state's PR April 29, 2019 and the appellate mandate issued on May 6, 2019.]
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