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CITY OF DODGE CITY v. HADLEY4/18/1997
e complaint. "So his opinion as to whether the defendant was under the influence really is superfluous." The officer's testimony as to the defendant's sobriety and his ability to safely operate the motor vehicle was based on personal observations and expertise as a police officer, and we find no abuse of discretion in allowing the testimony.
Even if the trial court's ruling had been error, it would be harmless. First, the evidence of guilt is of such a direct and overwhelming nature that it can be said that the challenged error could not have affected the result of the trial. See State v. Denney, 258 Kan. 437, 445, 905 P.2d 657 (1995). Second, as noted above, this case was tried without a jury. "Where trial is by the district court, on appellate review the supreme court indulges in the presumption the lower court considered only properly admissible evidence in reaching its decision unless the contrary is shown by the record." State v. Gordon, 219 Kan. 643, Syl. ? 11, 549 P.2d 886 (1976).
Hadley next challenges the legality of the search of his truck which produced the open bottle of whiskey. He relies on K.S.A. 22-2501 and State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996). The City contends that the court should not consider this issue because Hadley failed to follow the procedure set out in K.S.A. 22-3216 for requesting the court to suppress evidence. The statute, however, provides in part: " motion shall be made before trial, in the court having jurisdiction to try the case, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the
motion at the trial." At trial, Hadley's attorney objected to the introduction of the whiskey bottle on several grounds, including that the search was not "incidental to an arrest." The trial judge disagreed, and the objection was overruled.
Hadley makes the following assertions in his brief:
" he defendant was already under arrest, . . . handcuffed and in the officer's vehicle when the search of the vehicle was conducted. . . . There was no need to perform the search to protect the officer from attack. There was no area in the vehicle in which the defendant could have obtained any weapon since he was handcuffed. The search was not going to prevent the defendant from escaping since he was handcuffed and out of the immediate area." Officer Mazza testified:
"Q. Can you describe to us what attempts you did to have him perform the field sobriety tests?
"A. It was cold, and the parking lot was icy. I got him on the sidewalk part. I asked him if he had problems with hips, legs, knees, and ankles. He said he was stiff and was unable to do the walk-and-turn because he was old. He had to keep holding himself up on a vehicle. Officer Schwearing arrived shortly after that. Due to his obvious intoxication, I placed him under arrest.
"Q. Okay. The — after placing him under arrest, what did you do?
"A. A search after the arrest." Officer Mazza also testified that he was standing right next to Officer Schwearing while Schwearing searched the vehicle. There is no testimony in the record before us which would place Hadley in the patrol car in handcuffs before his truck was searched.
Thus, the only question is whether the facts establish that the search was conducted in accord with the statute. K.S.A. 22-2501 provides:
"When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of
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