Peter Maharry and Caroline M. Zuschek won in State v. Doelz, No. 113,165 (Kan. January 11, 2019), obtaining reversal and remand with directions to suppress in a Leavenworth County drug case. During investigation of a bank robbery, officers observed a car with a similar license plate as that reported to have been the getaway vehicle. Officers also believed the car was parked at a residence involved with drug activity. When the car drove away, officers conducted a traffic stop. The occupants of the car did not match the suspects in the bank robbery and they all denied knowledge of the bank robbery. One of the occupants had an outstanding arrest warrant and, during the arrest process, an officer saw an object he believed was a digital scale. The officer seized the object without permission to enter the car or seize the object, which did turn out to be a digital scale. An ensuing search of the car revealed drugs and paraphernalia.
The KSC agreed with Mr. Doelz that the officer did not have probable cause to support entering the car and seizing the object that turned out to be a digital scale:
Most importantly, the State did not establish that the incriminating character of the plainly viewed object on the backseat was immediately apparent to the officer. The State argued, and the district court accepted, that the incriminating character of the box on the backseat was immediately apparent to [the officer] because his training and experience informed him that digital scales are often used in the distribution of illegal drugs. But, a declaration that the officer knew that digital scales can, in some instances, meet the legal definition of illegal drug paraphernalia begs the question of whether [the officer] knew the box contained a digital scale immediately upon viewing the object, "'without conducting some further search of the object.'" Although there was a reference at the mistrial to the box having a clear plastic lid, [the officer's] testimony at the preliminary hearing, under oath, unequivocally refuted that the object was immediately recognized as contraband.
. . . .
In other words, [the officer] had to search the object that he had seized before he learned that the plainly viewed object contained a digital scale which could be used for, inter alia, illegal purposes. It was the search, then, that provided the probable cause that the plainly viewed object was contraband, negating the bona fides of the plain-view seizure.
Additionally, the KSC held that, even if the officer had the right to seize the object, he did not have the right to open the object without a warrant or applicable excpetion:
But even if the officer's suspicions about the box on the backseat were to be viewed as sufficient to establish the right to seize the object, the plain-view exception, by its definition, did not permit the further search of the box without a warrant or another established exception. Recently, in the context of the search of a purse and billfold retrieved from an automobile, we instructed: "Where a container is involved, complying with the warrant requirement or one of its well-delineated exceptions is required because the Fourth Amendment provides protection to the owner of every container if the container conceals its contents from plain view." State v. Evans, 308 Kan. 1422, Syl. ¶ 4, 430 P.3d 1 (2018).
The KSC also rejected other claims by the state that police obtained valid consent or had probable cause based on other circumstances. As a result, it reversed and remanded with directions to suppress the fruits of the illegal search and seizure.
