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STATE v. WONDERS1/23/1998
The opinion of the court was delivered by
In this case of first impression involving the Fourth Amendment to the United States Constitution, we must determine whether Kansas should adopt the "plain feel" corollary of the plain view exception to the search warrant requirement. If we do, the question then becomes whether substantial competent evidence exists to uphold the trial court's ruling that three baggies of marijuana discovered in Vernon Wonders' pocket were immediately apparent to a law enforcement officer conducting a properly authorized pat-down search of Wonders.
Wonders appealed his bench trial convictions of possession of marijuana, K.S.A. 1993 Supp. 65-4127b(a)(4), and possession of cocaine, K.S.A. 1993 Supp. 65-4127a(a), to the Court of Appeals. The panel reversed his convictions, finding the search exceeded the scope of a Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S. Ct. 1868 (1968), search. 23 Kan. App. 2d 287. We granted the State's petition for review.
Factual statement
On March 7, 1994, Harvey County Deputy Sheriff Kurt Ford legally stopped a vehicle driven by Albert Garcia for failing to properly use a turn indicator. There were three passengers in the vehicle. Deputy Ford detected the odor of alcohol emanating from the vehicle when he spoke to Garcia and asked him to exit the vehicle to perform sobriety tests. After Deputy Ford was satisfied that Garcia was not legally intoxicated, Ford told Garcia he was free to leave but asked him whether his vehicle contained any weapons or contraband. Garcia replied that it did not and consented to a search of his vehicle.
Deputy Ford instructed the three passengers to exit the vehicle. Ford's search revealed a hand scale, zigzag rolling papers, and two pipes emitting an odor of burnt marijuana. Based upon his training and experience, Ford testified he believed the items to be illegal drug paraphernalia.
Deputy Ford had 6 years of field experience dealing with drugs and drug paraphernalia and had made numerous drug-related arrests while serving as a law enforcement officer. Ford had received training in drug detection during continuing education courses and had served as the Harvey County Sheriff's Drug Abuse Resistance Education (DARE) officer.
After finding the alleged drug paraphernalia, Ford decided to pat down each occupant of the vehicle, particularly because one of the passengers, Jason Beard, was known to Ford from prior contacts and was considered a possible danger. He said his primary purpose in conducting the pat-downs was to search for weapons but admitted he was aware of the possibility of finding other items based on the presence of drug paraphernalia in the car.
While searching Wonders, one of the passengers, Ford felt a bulge in Wonders' left front jeans pocket. Ford passed over the bulge and completed a full pat-down before returning to the bulge. Ford testified that when he first patted the bulge, it was immediately apparent to him that it was a bag of marijuana in the pocket. Ford returned and touched the pocket while asking Wonders about its contents. When Wonders did not respond, Ford reached in and removed rolling papers and three baggies of marijuana.
Wonders was arrested, and a subsequent search of his person at the jail during booking revealed a plastic bag in his shirt pocket containing white rocks of crack cocaine.
At his preliminary hearing, Wonders challenged several aspects of the search which produced the contraband evidence. Wonders first questioned whether Ford had an articulable suspicion to detain him. He then asserted that Ford did not have a reasonable fear for hi
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