State v. Stevenson

Buser, J.,

dissenting: I dissent from my colleagues’ holding because no Kansas appellate court previously has held the odor of a legal substance may provide the sole basis to justify a warrantless search of an automobile based upon probable cause to believe the vehicle contained contraband or evidence of a crime. Based upon my reading of State v. Ibarra, 282 Kan. 530, 147 P.3d 842 (2006), and its interpretation of State v. Bickerstaff, 26 Kan. App. 2d 423, 988 P.2d 285, rev. denied 268 Kan. 889 (1999), I would find the very strong odor of alcohol emanating from Stevenson’s vehicle, without incriminating facts or circumstances, did not justify the warrantless search of the automobile to search for an open container of alcohol.

In Ibarra, the Supreme Court was presented for the first time with the question of “whether the strong odor of ether emanating from a vehicle can constitute probable cause to search.” 282 Kan. at 537. Surveying the legal landscape, the Ibarra court observed: “We have not found and die parties have not cited a single case in which the odor of ether or other legal substance alone justified a search.” (Emphasis added.) 282 Kan. at 543. Of course, while ether is used in the manufacture of methamphetamine, a controlled substance, the possession of ether is not illegal and “[t]he strong odor of ether emanating from a house or vehicle is as consistent with lawful activity as it is with criminal activity.” 282 Kan. at 543. Our Supreme Court concluded, “the smell of ether alone is justification for further investigation but not for a search.” 282 Kan. at 543.

*482In arriving at its holding, the Ibarra court clearly read Bickerstaff to stand for the proposition that the odor of alcohol, another legal substance, was not the sole basis to justify that particular vehicle search. On tire contrary, through the judicious use of italics, our Supreme Court communicated that several other factors also comprised the totality of the circumstances which resulted in the probable cause finding:

“The Court of Appeals concluded that the odor of alcohol from the person and her car and the breath test showing she had alcohol in her system coupled with her denial of drinking provided the officer with probable cause to conduct a warrantless search of the vehicle for an open container. [Citation omitted.]” 282 Kan. at 538.

It is noteworthy that even the lone dissenter in Ibarra, Senior Judge Edward Larson, agreed with the majority’s reading of Bickerstaff: “There is no ‘standing alone’ statement in Bickerstaff. The result clearly was not limited to the smell of alcohol.” 282 Kan. at 558 (Larson, J., dissenting).

In fact, the Court of Appeals in Bickerstaff underscored that the odor of alcohol emanating from the vehicle was not the sole basis to justify probable cause to believe the vehicle had an open container when it referenced the “cumulative concurrence” of four separate factors — including the odor of alcohol- — which justified the warrantless search of the vehicle. 26 Kan. App. 2d at 424. Finally, if there was any residual doubt, our court set forth in the syllabus the following rule of law: “The odor of alcohol emanating from a vehicle stopped for a traffic violation, when coupled with other facts and circumstances as stated in the opinion, is sufficient to give an officer probable cause to conduct a warrantless search of the vehicle for an open container.” (Emphasis added.) 26 Kan. App. 2d 423, Syl.

Given the lack of precedent in Kansas to support the proposition that the very strong odor of alcohol emanating from a car may provide the sole basis to justify a probable cause finding, my colleagues cite an Idaho Court of Appeals case, State v. Wigginton, 142 Idaho 180, 125 P.3d 526 (Ct. App. 2005), rev. denied December 23, 2005, for support. I question, however, whether the law and facts of Wigginton actually bolster the majority’s holding.

*483At the outset, Wigginton does not stand for the legal proposition that the very strong odor of alcohol emanating from a vehicle may provide the sole basis to justify a finding of probable cause. As quoted by my colleagues, the Idaho court held the odor from the vehicle “ ‘and additional information pointed to the likelihood of an open container in the vehicle.'" (Emphasis added.) Stevenson, 46 Kan. App. 2d at 479.What was “the additional information” available to the law enforcement officers in Wigginton prior to their search for an open container of alcohol?

First, in contrast to the present case, the officers in Wigginton had a reasonable belief the driver was under the influence of alcohol. In fact, the legal basis for stopping Wigginton’s vehicle was the trooper’s determination that the driver was under the influence. This belief — which was not challenged on appeal — was based on the trooper observing the vehicle “cross over the highway centerline about three times. He also noticed that on straight stretches of the road, the vehicle’s brake lights would come on for no apparent reason.” 142 Idaho at 181. Upon stopping the vehicle, the trooper noticed drat Wigginton’s eyes were “bloodshot.” 142 Idaho at 181. All of these factors are also well established indicators under Kansas law that a driver is under the influence of alcohol. See City of Dodge City v. Norton, 262 Kan. 199, 205, 936 P.2d 1356 (1997). And, in contrast to Wigginton, none of these indicators of alcohol use were existent in the present case.

Second, although Wigginton’s driving behavior and personal appearance suggested recent consumption of alcoholic beverages, and there was “an overwhelming odor of alcohol coming from inside the vehicle,” Wigginton and his passenger denied drinking any alcohol that evening. 142 Idaho at 181. Under drese circumstances, a law enforcement officer could have a reasonable belief that the driver was dishonest and the vehicle contained evidence of alcohol consumption. In the present case, on the other hand, Stevenson did not appear intoxicated and did not have an odor of alcohol on his breath or person. Moreover, the record is bereft of any statements attributed to Stevenson admitting or denying whether he consumed alcohol before the vehicle stop.

*484Third, in Wigginton, the passenger confirmed the trooper’s suspicion that a strong odor of alcohol was coming from inside the vehicle by advising him “that someone had previously spilled beer on the vehicle’s floorboard and that the odor was enhanced whenever the heater was running.” 42 Idaho at 181. Although the passenger asserted this spill from an open container of alcohol was not recent, the Idaho court based its probable cause finding, in part, on the fact that Wigginton had struck a rock which flattened his front tire while stopping his vehicle at the direction of the officer. According to the court, these facts “suggested a possibility that alcohol could have spilled from a container during that abrupt stop.” 42 Idaho at 183. In contrast, in Stevenson, there was no such evidence presented at the suppression hearing leading to the inference that an open container of alcohol had just spilled or was even inside Stevenson’s vehicle.

In summary, Wigginton does not support the legal proposition posited by the majority. On the contrary, Wigginton is consonant with both Ibarra and Bickerstaff s precedent that the odor of alcohol emanating from a vehicle, together with incriminating facts and circumstances, may justify a warrantless search of an automobile based upon probable cause to believe the vehicle contained an open container of alcohol. See also State v. Fisher, 283 Kan. 272, Syl. ¶ 13, 154 P.3d 455 (2007) (“Although the smell of ether alone cannot establish probable cause, it may be considered with other evidence in the totality of the circumstances for determining whether probable cause exists to issue a search warrant.”); State v. Moore, 283 Kan. 344, 358, 154 P.3d 1 (2007) (Because the odor of masking agents may indicate a legitimate or criminal purpose “[t]he weight assigned to the odor . . . varies with the circumstances. [Citation omitted.]”).

Using Bickerstaff as a guide to the analysis of the present case, I would find there was substantial competent evidence to show that a very strong odor of an alcoholic beverage was emanating from inside Stevenson’s automobile. Alcoholic beverages, however, are legal substances which are the subject of numerous regulations and traffic violations. In order to analyze whether probable cause existed to search Stevenson’s automobile for contraband or evi*485dence of a crime, it is necessary to set forth the relevant statutory language pertaining to the crime of transportation of liquor in an open container.

K.S.A. 2008 Supp. 8-1599(b) provides in part:

“No person shall transport in any vehicle upon a highway or street any alcoholic beverage unless such beverage is:
(1) In the original unopened package or container, the seal of which has not been broken and from which the original cap, cork or other means of closure has not been removed;
(2)(A) in the locked rear trunk or rear compartment, or any locked outside compartment which is not accessible to any person in the vehicle while it is in motion; or
(B) if a motor vehicle is not equipped with a trunk, behind the last upright seat or in an area not normally occupied by the driver or a passenger; or
(3) in the exclusive possession of a passenger in a . . . recreational vehicle,. . . who is not in the driving compartment of such vehicle or who is in a portion of such vehicle from which the driver is not directly accessible.”

Depending on the particular vehicle, the container, the container s contents, whether the container is open, and where the container is located in the vehicle determine whether there is a violation of K.S.A. 2008 Supp. 8-1599. Clearly, the plain language of the statute allows exceptions to the general rule that no person shall transport any alcoholic beverage in a vehicle. These exceptions include the lawful transportation of open containers behind the last upright seat in a vehicle without a trunk or inside a vehicle’s trunk. Given these particular exceptions and the fact that the odor of alcohol is amorphous, mobile, and, as a result, not necessarily attributable to a particular source or location within a vehicle, the very strong odor of alcohol emanating from inside a vehicle may or may not indicate a violation of K.S.A. 2008 Supp. 8-1599.

In the present case, the veiy strong odor of alcohol justified the officers’ brief extension of the traffic stop to investigate whether Stevenson was in violation of K.S.A. 2008 Supp. 8-1599 and K.S.A. 2008 Supp. 8-1567 (driving under the influence of alcohol). See State v. Thompson, 284 Kan. 763, Syl. ¶ 8, 166 P.3d 1015 (2007) (At the end of a traffic stop the driver must be allowed to proceed without further delay or questioning unless “during the traffic stop the officer gains a reasonable and articulable suspicion that the *486driver is engaged in illegal activity.”). This investigation could have included questions regarding the source of the odor or whether Stevenson had recently consumed alcoholic beverages. See State v. Morlock, 289 Kan. 980, Syl. ¶ 5, 218 P.3d 801 (2009) (‘When the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden the inquiry and satisfy those suspicions, graduating his or her responses to the demands of the situation.”).

Other than the potentially incriminating odor of alcohol emanating from inside Stevenson’s automobile, the officers’ investigation did not establish any additional information leading to probable cause to search for an open container. On the contrary, Stevenson did not appear under the influence of alcohol, his driving did not suggest alcohol impairment, and the testing conducted by the officers confirmed he was not intoxicated. Inexplicably, there was no evidence presented at the suppression hearing regarding whether Stevenson was asked about die origin of the odor or his recent consumption of alcoholic beverages.

Moreover, there was no testimony that any officer standing outside the automobile simply looked inside the vehicle to see if there was an open container. This last omission is especially disconcerting because, as my colleagues note, the search of the vehicle revealed “a large bottle of wine in the backseat of the vehicle that had leaked a large quantity of red wine onto the floorboard behind the driver’s seat.” 46 Kan. App. 2d at 475. It is an understatement to note this incriminating evidence should have been visible to the officers upon looking through the vehicle’s windows. Regardless of the reason, no such incriminating evidence was presented by the State at the suppression hearing in support of this warrantless vehicle search. And the State bore the burden to demonstrate that the challenged search and seizure was lawful. Morlock, 289 Kan. 980, Syl. ¶ 1.

Finally, the majority reasons that “[o]nce Stephenson was removed from the car and it was determined that he was not intoxicated, the clear source of the Very strong’ odor of alcohol was the interior of the car.” (Emphasis added.) 46 Kan. App. 2d at 480. While true, as discussed earlier, the odor of alcohol emanating from *487a vehicle is not necessarily indicative of a violation of K.S.A. 2008 Supp. 8-1599.

Following the analysis in Bickerstaff, I would argue that Stevenson’s apparent sobriety, if anything, lessened the likelihood of finding an open container in his automobile. Bickerstaff stands for the proposition that evidence of a driver’s intoxication coupled with a very strong smell of alcohol coming from the vehicle is an important factor leading to the probable cause determination. This precedent reflects the anecdotal evidence found in numerous Kansas cases where individuals were arrested for driving under the influence of alcohol and open containers of alcoholic beverages were found inside the vehicles. See State v. McGinnis, 290 Kan. 547, 550, 233 P.3d 246 (2010) (defendant arrested for DUI and an open container found in the vehicle); Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 772, 133 P.3d 104 (2006) (defendant arrested for DUI and a cold, partially consumed beer can and open bottle of whiskey found inside the vehicle.); State v. Hamman, 273 Kan. 89, 91, 41 P.3d 809 (2002) (defendant arrested for DUI and an open container of beer found in the console of the vehicle).

In conclusion, I would find the law enforcement officers did not have probable cause to conduct a warrantless search of Stevenson’s automobile for evidence of an open container of alcohol. Accordingly, I would reverse and remand with directions to grant the motion to suppress evidence.