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No. 102,369 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. KENNETH S. GOFF, Appellant.

SYLLABUS BY THE COURT

1. If an officer detects the odor of raw marijuana emanating from a vehicle, such an odor can provide probable cause to search the vehicle.

2. Under the facts of this case, where an officer detected the odor of raw marijuana emanating from a motor vehicle, obtaining a key to search a locker in the car by asking the driver for it without giving a Miranda warning was not improper.

Appeal from Douglas District Court; ROBERT W. FAIRCHILD, judge. Opinion filed September 17, 2010. Affirmed.

Christina M. Waugh, of Kansas Appellate Defender Office, for appellant.

Nicole Romine, assistant district attorney, Laura N. Younker, legal intern, Charles E. Branson, district attorney, and Steve Six, attorney general, for appellee.

Before HILL, P.J., PIERRON and LEBEN, JJ.

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PIERRON, J.: Kenneth S. Goff appeals from the trial court's denial of his motion to suppress evidence seized during a traffic stop of his vehicle. Goff argues that the police illegally searched his vehicle without probable cause. He further argues that evidence was improperly seized after a custodial interrogation prior to his being given a Miranda warning.

On July 21, 2007, Goff was arrested and charged with possession of marijuana with intent to sell, a level 3 nonperson drug felony; no tax stamp, a level 10 nonperson felony; and possession of drug paraphernalia, a class A nonperson misdemeanor. He was arrested after police stopped his vehicle for a nonfunctioning tag light.

After approaching the vehicle in question on a traffic stop, the officer smelled the odor of raw marijuana coming from inside the vehicle. The officer then called for backup and waited for it to arrive. When backup arrived, the officer ordered Goff and two other men out of the vehicle. The officer then searched the vehicle and found marijuana cigarettes in a prescription bottle in the center console. There was also a padlocked, toolbox type locker in the back passenger section of the vehicle.

The officer asked Goff for the key to the padlock, and Goff responded that the officer needed a warrant to search the locker. The officer told Goff that he "didn't want to have to break the lock." Goff responded by telling the officer that the key was on the key ring on the center console. The officer unlocked the locker and searched it. The officer found a pipe and a Tupperware container containing approximately 15 bags of marijuana. Another officer also found an additional baggie of marijuana on the passenger's floorboard under the carpet.

Following his arrest, Goff filed a motion to suppress. The trial court held a hearing on the motion to suppress on March 31, 2008. After reviewing the evidence, the court

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denied Goff's motion to suppress. The court thereafter conducted a bench trial and found Goff guilty of all three counts.

Goff filed a motion for a dispositional departure or suspension of execution of sentence. The court granted the dispositional departure and sentenced Goff to 18 months probation with an underlying controlling 34-month prison term.

Goff timely appeals the denial of his motion to suppress.

Goff argues that the smell of raw marijuana was insufficient for probable cause and the officer could not have smelled marijuana from his position near the vehicle. We find there was probable cause for the officer to search, and the trial court did not err in so finding.

An appellate court reviews the district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court's findings are reviewed to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).

Substantial evidence is evidence possessing both relevance and substance and which provides a substantial basis of fact from which the issues can reasonably be determined. Specifically, substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594-95, 153 P.3d 1257 (2007).

In order to stop a vehicle, an officer must have reasonable suspicion based on articulable evidence that a crime had occurred. State v. Moore, 283 Kan. 344, 349-50,

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154 P.3d 1 (2007). In this case, the officer had reasonable suspicion that the vehicle's tag light was not properly illuminated--a traffic infraction.

The Fourth Amendment to the United States Constitution and

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Kansas Law