1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,439

STATE OF KANSAS,

Appellee,

v.

CAMERON HOWARD,

Appellant.

SYLLABUS BY THE COURT

1.

In reviewing the granting or denial of a motion to suppress evidence, an appellate 

court determines whether the factual findings underlying the trial court's suppression 

decision are supported by substantial competent evidence. The appellate court does not 

reweigh the evidence or reassess the credibility of the witnesses. The ultimate legal 

conclusion drawn from those factual findings is reviewed under a de novo standard.

2.

The Fourth Amendment to the United States Constitution, applicable to the States 

via the Fourteenth Amendment, establishes the right of the people to be secure in their 

persons, houses, papers, and effects against unreasonable searches. Section 15 of the 

Kansas Constitution Bill of Rights provides identical protection. If conduct is prohibited 

by one, it is prohibited by the other. 

3.

A warrantless search is per se unreasonable, and the fruits of that search 

inadmissible, unless the search falls within one of the established exceptions to the search 

warrant requirement. Those exceptions are consent; search incident to a lawful arrest; 
2

stop and frisk; probable cause plus exigent circumstances; the emergency doctrine; 

inventory searches; plain view or feel; and administrative searches of closely regulated 

businesses.

4. 

When probable cause and an exigent circumstance are present, an officer may 

perform a warrantless search of a car without violating the Fourth Amendment. 

5. 

Exigent circumstances exist where the police officer reasonably believes there is a 

threat of imminent loss, destruction, removal, or concealment of evidence or contraband.

6. 

For Fourth Amendment purposes, the mobility of a vehicle fulfills the requirement 

of exigent circumstances, so that a warrantless vehicle search is permitted based solely on 

probable cause.

7. 

Probable cause to search a vehicle exists when the totality of the circumstances 

indicates there is a fair probability that the vehicle contains contraband or evidence of a 

crime.

8. 

When analyzing the totality of the circumstances, an appellate court will consider 

all of the information in the officer's possession, fair inferences therefrom, and any other 

relevant facts, even if they may not be admissible on the issue of guilt.
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Review of the judgment of the Court of Appeals in 51 Kan. App. 2d 28, 339 P.3d 809 (2014). 

Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge. Opinion filed March 10, 2017.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is 

affirmed.

Craig M. Divine, of Divine Law Office, LLC, of Kansas City, Missouri, and Clayton E. Gillette, 

of Gillette Law Office, LLC, of Kansas City, Missouri, argued the cause and were on the briefs for 

appellant. 

Jacob M. Gontesky, assistant district attorney, argued the cause, and Steven J. Obermeier, 

assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were 

with him on the briefs for appellee.

Per Curiam: Cameron Howard was convicted of criminal possession of a firearm 

by a convicted felon. The Court of Appeals affirmed his conviction, and we granted 

review.

FACTS

The relevant facts are uncontested. On October 19, 2006, Cameron Howard pled 

guilty to one count of "Burglary First Degree, Class B Felony" in the circuit court of 

Jackson County, Missouri. Howard was then adjudged guilty by the Missouri court. 

Following the plea and adjudication, the court ordered that the "imposition of sentence be 

suspended and [the] defendant is placed on probation for a period of three (3) years . . . ." 

In Yale v. City of Independence., 846 S.W.2d 193, 196 (Mo. 1993), the Missouri Supreme 

Court held that a "suspended imposition of sentence" does not constitute a conviction 

under Missouri law. 
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On October 17, 2008, the Missouri court determined that Howard had successfully 

completed his probation and discharged him from the court's jurisdiction. It further 

ordered that the file be "a closed record to the extent provided by law," as prescribed by 

Mo. Rev. Stat. § 610.105.1. 

Nearly 3 years later, on September 15, 2011, Police Officer Chad Loughman was 

near 7720 State Line Road in Prairie Village, Johnson County, Kansas, looking for 

drivers who would pull into a gas station parking lot to avoid a traffic light—a traffic 

violation in Prairie Village. Loughman observed Howard pull into the parking lot and 

then out of it, effectively avoiding the traffic light. Loughman also noticed that Howard 

and his passenger had the shoulder straps of their seatbelts behind them, leading him to 

believe that they were not properly wearing the belts. 

Loughman pulled Howard over and asked for his identification. At this time, 

Loughman saw that the passenger had reclined her seat since he had first seen the vehicle. 

Loughman called in Howard's identification to dispatch, which informed him that there 

was a warrant for Howard's arrest from Leawood Municipal Court. After learning of the 

warrant, Loughman called for backup, and Sergeant James Carney came to the scene. 

After Carney arrived, Loughman had Howard step out of the car and stand at the 

rear passenger's door with Carney. Loughman then scanned the car, looking underneath 

Howard's seat for a weapon. Loughman found no weapons but discovered a plastic 

baggie with a ripped out corner in the center console. Loughman then secured Howard in 

the back of Carney's police car and told Howard he was being put under arrest pursuant 

to the Leawood warrant. 

Loughman then took the passenger's identification and learned from dispatch that 

there was a warrant for her arrest from Prairie Village Municipal Court. Loughman had 
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the passenger step out of the car and, because she was pregnant, had her sit on the curb 

about 6 to 8 feet away from the car. 

After removing the passenger, Loughman moved the passenger seat forward and

found a firearm, subsequently classified in the record as an AK-47 pistol, that was 

concealed under a floor mat. It is unclear exactly where the weapon was located in the car 

because the officer testified that the firearm was concealed by "[t]he driver's side rear 

floormat" and the "front passenger seat, that floormat." 

After finding the firearm, Loughman Mirandized Howard. Loughman then asked 

Howard about the plastic baggie. Howard responded that the baggie had previously held 

marijuana. 

Howard was subsequently charged with criminal possession of a firearm by a 

convicted felon under K.S.A. 2011 Supp. 21-6304(a)(2) for possession of a firearm 

within 5 years after having been convicted of a felony under the laws of another state. 

The charge was based on the AK-47 found in Howard's car on the day of the traffic stop 

and on the prior Missouri burglary charge. 

Before Howard's trial, both he and the State filed a number of motions. Howard 

filed a motion to dismiss, arguing that the Missouri judgment was not a conviction and 

thus he could not be convicted under K.S.A. 2011 Supp. 21-6304. Howard also filed a 

motion to suppress any evidence related to his possession of the firearm because the 

evidence was obtained through a warrantless search of his car. Finally, the State filed a 

motion in limine requesting that the court preclude Howard from "introducing evidence 

that [Howard] legally purchased the firearm in the state of Missouri or any federal 

records pertaining [to] the purchase of the firearm." 
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After hearing arguments regarding the parties' motions, the district court granted 

the State's motion in limine and denied Howard's motion to dismiss and his motion to 

suppress evidence. 

On May 31, 2013, Howard waived his right to a jury trial and the district court 

held a bench trial on stipulated facts. The court entered a guilty verdict and sentenced 

Howard to 18 months of probation. Howard timely appealed to the Court of Appeals, 

which affirmed the conviction. State v. Howard, 51 Kan. App. 2d 28, 339 P.3d 809 

(2014). 

In his petition for review, Howard raised three arguments: (1) He cannot be guilty 

of criminal possession of a firearm by a convicted felon because a completed Missouri 

suspended imposition of sentence (SIS) is not a conviction and he therefore was not a 

convicted felon; (2) his firearm should have been suppressed as evidence because it was 

obtained through an illegal search of his car; and (3) the evidence that Howard passed a 

federal background check before successfully purchasing the firearm in Missouri should 

not have been excluded at the district court because that evidence shows Howard did not 

know he was a convicted felon and thus establishes a mistake of fact defense. This court 

granted review with respect to all issues. 

ANALYSIS

The Court of Appeals considered each of Howard's issues. With regard to the first 

issue, the panel held that a completed Missouri SIS is a conviction for purposes of the 

Kansas statute. 51 Kan. App. 2d at 36. As to the third issue, the panel concluded that the 

district court did not err in excluding the evidence that Howard passed a federal 

background check before purchasing the firearm. 51 Kan. App. 2d at 49. We agree with 

both of these conclusions. Because we cannot improve upon the panel's thorough and 

well-reasoned analysis, we adopt it here.
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Before moving to the remaining issue, we briefly consider one of Howard's 

arguments on the first issue that the panel did not address. Howard contends that 

considering a completed Missouri SIS to be a conviction results in an absurd 

interpretation of K.S.A. 2011 Supp. 21-6304 because the Kansas Legislature does not 

prescribe a method by which Kansas firearms dealers must uncover whether a person has 

a Missouri SIS before a sale. 

While Howard's contentions may warrant this court's attention in a future case, 

they do not do so here. The question before this court does not pertain to the sale and 

purchase of firearms or concern the manner of the acquisition of weapons, but with the 

possession of firearms. For this reason, we conclude that Howard's argument is 

inapplicable to the case before us and is best left for another day.

Our adoption of the panel's analysis on issues one and three leaves us with only 

Howard's second issue to address. We do so now. 

The Search of Howard's Car

Howard contends that the firearm found in his car was obtained through an illegal 

search in violation of his Fourth Amendment rights. Consequently, Howard argues that 

the district court erred in denying his motion to suppress the firearm as evidence.

Standard of Review

In reviewing the granting or denial of a motion to suppress evidence, this court 

determines whether the factual findings underlying the trial court's suppression decision 

are supported by substantial competent evidence. An appellate court does not reweigh the 

evidence or reassess the credibility of the witnesses. The ultimate legal conclusion drawn 
8

from those factual findings is reviewed under a de novo standard. State v. Carlton, 297 

Kan. 642, 645, 304 P.3d 323 (2013).

The facts in this case are not in dispute. Thus, the only issue here is a legal one and 

the review is therefore de novo. 

Discussion

The Fourth Amendment to the United States Constitution, applicable to the States 

via the Fourteenth Amendment, establishes "[t]he right of the people to be secure in their 

persons, houses, papers, and effects, against unreasonable searches . . . ." Section 15 of 

the Kansas Constitution Bill of Rights provides identical protection. State v. Morris, 276 

Kan. 11, 17, 72 P.3d 570 (2003). If conduct is prohibited by one, it is prohibited by the 

other. 276 Kan. at 17. Under both, a warrantless search is per se unreasonable, and the 

fruits of that search are inadmissible, unless the search falls within one of the established 

exceptions to the search warrant requirement. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 

1684, 6 L. Ed. 2d 1081 (1961); State v. Richard, 300 Kan. 715, 726, 333 P.3d 179 (2014).

Those exceptions are "consent; search incident to a lawful arrest; stop and frisk; probable 

cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view 

or feel; and administrative searches of closely regulated businesses." Richard, 300 Kan.

726-27.

In this case, Officer Loughman did not have a warrant when he searched Howard's 

car. Thus, the firearm that the search revealed would be excluded from evidence unless 

some recognized exception applies. The Court of Appeals concluded that the search was 

lawful based on the probable cause plus an exigent circumstance. Howard, 51 Kan. App. 

2d at 37, 41.
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On review, the State argues that either probable cause with exigent circumstances 

or inevitable discovery permitted a warrantless search. 

Probable cause with an exigent circumstance

When probable cause and at least one exigent circumstance are present, an officer 

may perform a warrantless search of a car without violating the Fourth Amendment. State 

v. Sanchez-Loredo, 294 Kan. 50, 56, 272 P.3d 34 (2012). "'Exigent circumstances exist 

where the police officer reasonably believes there is a threat of imminent loss, 

destruction, removal, or concealment of evidence or contraband.'" 294 Kan. at 56. "For 

Fourth Amendment purposes, the mobility of a vehicle fulfills the requirement of exigent 

circumstances, so that a warrantless vehicle search is permitted based solely on probable 

cause." 294 Kan. at 51.

Here, the officer uncovered the firearm during the search of Howard's vehicle. 

Thus, the mobility of the car provided the exigent circumstance and the only issue before 

us is whether the officer had probable cause to search Howard's vehicle. 

Probable cause to search a vehicle exists when the totality of the circumstances 

indicates there is a fair probability that the vehicle contains contraband or evidence of a 

crime. State v. Jefferson, 297 Kan. 1151, 1159, 310 P.3d 331 (2013). When analyzing the 

totality of the circumstances, we consider "'all of the information in the officer's 

possession, fair inferences therefrom, and any other relevant facts, even if they may not 

be admissible on the issue of guilt.'" State v. Ramirez, 278 Kan. 402, 406, 100 P.3d 94 

(2004) (quoting State v. Abbott, 277 Kan. 161, Syl. ¶¶ 2-3, 83 P.3d 794 [2004]).

The State contends that three factors combined to create probable cause: (1) the 

officer's observation that the passenger of the car reclined her seat between the time that 

the officer first spotted Howard's car and when the officer approached the car window; 
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(2) the officer's observation of a clear plastic baggie with a ripped out corner in the 

console of the car; and (3) the officer's training and experience that led him to know 

people regularly package drugs utilizing twisted off corners of clear plastic baggies. 

The Court of Appeals considered all of these factors, first concluding that the 

reclined seat "does not significantly add to the probable-cause analysis" because reclining 

in a seat is "a common, innocuous activity." Howard, 51 Kan. App. 2d at 38. However, 

the panel ultimately held that the officer's experience, coupled with the torn plastic 

baggie, was sufficient to establish probable cause. Howard, 51 Kan. App. 2d at 41.

We begin our probable cause analysis by considering the passenger's reclined seat 

and the panel's conclusion that it added nothing to increase the probability that the 

vehicle contained contraband. We disagree. When assessing whether probable cause 

existed, this court is to consider all information in the officer's possession and any "fair 

inferences therefrom." (Emphasis added.) Ramirez, 278 Kan. at 406. We conclude that it 

was fair for the officer in this case to infer from the passenger's action of reclining her 

seat that she was trying to hide something from his view. This inference adds to the 

likelihood that the car contained contraband, helping to establish probable cause. 

Other courts have similarly held that reclined car seats can add to a probable cause 

analysis. See United States v. Montgomery, 527 F.3d 682, 686 (8th Cir. 2008) (probable 

cause to support search warrant supported in part because passenger reclined seat upon 

entering car in apparent effort to hide from anyone watching the car); United States v. 

Johnson, No. 14-CR-130, 2014 WL 5860478, at *4 (D. Minn. 2014) (unpublished 

opinion) (driver had reclined seat when officer approached car, leading officer to believe 

defendant was hiding incriminating evidence and helping to establish probable cause); 

Stroud v. State, 286 Ga. App. 124, 126-27, 648 S.E.2d 476 (2007) (probable cause to 

search vehicle supported in part by officer's observation that driver of parked car was 

leaned all the way back in seat and appeared to be attempting to hide); State v. Eady, No. 
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C.C.A. 263, 1989 WL 19674, at *2 (Tenn. Crim. App. 1989) (unpublished opinion)

(probable cause to arrest furnished in part by fact that driver and passenger had seats 

reclined below the window in parked car, apparently attempting to avoid detection).

The dissent takes issue with the fact that the officer did not actually see the 

passenger recline her seat, writing that probable cause did not exist in this case because it 

could only be established through "stacked inferences." Slip op. at 18. We disagree with

this rationale, however, because probable cause based on a furtive gesture is always built

on inference—the inference that the defendant was nervous about or attempting to hide

the fruits of recent or contemporaneous criminal activity. See State v. Payne, 273 Kan. 

466, 474-75, 44 P.3d 419 (2002) (probable cause to arrest established in part because 

defendant glanced furtively around before entering a car known to be stolen, suggesting 

to officers that defendant knew he was acting unlawfully); State v. Barnes, 220 Kan. 25, 

29, 551 P.2d 815 (1976) (probable cause to arrest established in part because defendant 

got up and fled restaurant while covering his face when officers entered the restaurant, 

leading the officers to suspect defendant was the robber for whom they were searching); 

State v. Hays, 221 Kan. 126, 129, 557 P.2d 1275 (1976) (probable cause to search trunk 

of car based in part on defendant's attempts to hide a brown paper sack in trunk, leading 

officers to believe bag contained contraband); United States v. Springfield, 196 F.3d 

1180, 1183-84 (10th Cir. 1999) (probable cause to arrest based in part on defendant's 

furtive movements in the back of a van during officer's pursuit because movements led to 

reasonable inference that defendant was trying to hide contraband). 

Further undermining the dissent's position is the fact that the officer began 

pursuing Howard's vehicle immediately after spotting it, thereby allowing for the 

reasonable inference that the passenger reclined her seat in response to the officer's 

pursuit. The dissent contends that there was a clear possibility that the passenger reclined 

her seat before she became aware of the officer, thus making any inference that she 
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reclined in order to hide something from the officer too far-fetched to help establish 

probable cause. 

The officer here testified that he was parked in a gas station parking lot when he 

saw Howard turn into and immediately out of the lot to avoid an intersection. When

Howard left the lot and crossed a street into a neighboring parking lot, the officer turned 

on his emergency lights and initiated a traffic stop. Howard responded to these lights and 

pulled over in the lot. This amounted to mere seconds between the officer's observation 

of the upright seat and Howard's realization that he was being pursued by an officer. 

Because the window of time in which the passenger could have decided to recline her 

seat without any awareness of the officer's pursuit was so small, we disagree with the 

dissent's contention that an inference the passenger reclined her seat in order to hide 

something from the officer was too weak an inference to support the finding of probable 

cause.

Here, Officer Loughman made the reasonable inference that the passenger's 

reclined seat was an attempt to conceal something from his view. This inference 

increased the likelihood that there was contraband in Howard's vehicle and was an 

appropriate consideration in establishing probable cause to search the car. 

The next factor for our consideration is the officer's experience. Both the United 

States Supreme Court and this court have held that an officer's experience and expertise 

can be taken into account when determining whether the officer had probable cause to 

search or arrest. See United States v. Ortiz, 422 U.S. 891, 897, 95 S. Ct. 2585, 45 L. Ed. 

2d 623 (1975) (officers can draw on knowledge and prior experience in determining 

whether probable cause exists to search a vehicle); State v. Fitzgerald, 286 Kan. 1124, 

1130, 192 P.3d 171 (2008) ("[U]sing an officer's training and experience merely as one 

factor in a totality of the circumstances analysis of . . . probable cause does not infringe 

on the constitutional rights of a criminal defendant. We therefore consider [the officer's] 
13

training and experience in this case, and, in theory, that factor weighs in favor of the 

existence of probable cause . . . ."). abrogated in part on other grounds by State v. 

Sanchez-Loredo, 294 Kan. 50, 272 P.3d 34 (2012).

Here, Officer Loughman testified that the plastic baggie with a ripped out corner 

stood out because his "training and experience with drugs and transportation of illegal 

drugs [led him to understand] that [it] is a common practice that people wrap marijuana 

in particular in cellophane baggies and twist the baggies several times to keep it secured." 

Under our own precedent and that of the United States Supreme Court, Officer 

Loughman's experience is a factor that helped to establish probable cause. 

Finally, we consider the clear plastic baggie with the ripped out corner that Officer 

Loughman observed in the console of Howard's car. Howard argues that this baggie, 

standing alone, is not enough to establish probable cause to search a car. While that may 

be true, this is not the question before us today. As we have already noted, the baggie is 

not the only factor in this analysis. We also consider the passenger's reclined seat and 

Officer Loughman's training and experience. Thus, the question for our review is whether 

the clear plastic baggie with a ripped out corner helped to establish probable cause. We 

conclude that it did.

In Ramirez, we considered whether portions of plastic baggies or other packaging 

that is associated with drugs would establish probable cause. In that discussion, we 

explained that the caselaw supports a conclusion that, while the observation of packaging 

that is generally associated with drug storage may not be enough to establish probable 

cause, "'the small gap can . . . be filled [in] by furtive or evasive behavior.'" 278 Kan. at 

408 (quoting 2 LaFave, Search and Seizure § 3.6[b], pp. 299-301 [1996], and 2004 

Pocket Part, pp. 47-49).
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In Ramirez, an officer observed the defendant while she was holding a torn plastic 

baggie. She was also at a bar known for drug activity, appeared to be under the influence 

of drugs, was fidgety and nervous, and avoided a uniformed officer. The officer who 

observed all of this knew that cocaine was regularly packaged in clear plastic baggies and 

that the defendant had used drugs in the past. Based on all of these factors, including the 

plastic baggie, we concluded that the officer had probable cause to arrest the defendant. 

278 Kan. at 408-09.

More recently, in State v. Jones, we explained that an intact plastic bag will not 

"significantly add to [reasonable] suspicion," but that "suspicion might arise if the corner 

of the baggie had been cut off in a manner often used for packaging illegal substances or 

the bag had been tied in a knot." State v. Jones, 300 Kan. 630, 647-48, 333 P.3d 886 

(2014).

As we did in Ramirez, we conclude that the presence of the torn, clear plastic 

baggie helped to establish probable cause.

Together, the three factors that were present here were enough to show a fair 

probability that the vehicle contained contraband or evidence of a crime. This supplied 

the officer with probable cause to search the car. Consequently, the district court did not 

err in its denial of Howard's motion to suppress the firearm found during the search. 

Because we conclude that the search of Howard's car was legal under the exigent 

circumstances plus probable clause exception, we do not address the State's inevitable 

discovery argument.

Accordingly, the judgment of the Court of Appeals is affirmed.
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* * *

ROSEN, J., concurring in part and dissenting in part: I concur with the majority's 

conclusion to adopt the Court of Appeals analysis with respect to the first and third 

issues. However, I would not conclude that Officer Chad Loughman established probable 

cause to search Cameron Howard's car. Accordingly, I dissent from that part of the 

majority's decision that upholds the denial of Howard's motion to suppress. 

The Fourth Amendment to the United States Constitution and Section 15 of the 

Kansas Constitution Bill of Rights establishes "[t]he right of the people to be secure in 

their persons, houses, papers, and effects, against unreasonable searches . . . ." See State 

v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003). This protection extends to a person's 

vehicle and prevents the warrantless search of that vehicle absent probable cause. See 

United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982); State 

v. Sanchez-Loredo, 294 Kan. 50, 56, 272 P.3d 34 (2012). Probable cause only exists 

when the totality of the circumstances establishes a fair probability that the vehicle 

contains contraband or evidence. Sanchez-Loredo, 294 Kan. at 55.

So long as these principles stand, I cannot agree that the presence of a reclined seat 

and a torn plastic baggie give an officer permission to invade the privacy and protection 

afforded by our Constitutions with a warrantless search of a vehicle.

First, I would agree with the Court of Appeals' conclusion that the reclined seat 

did not add to the probable cause analysis. See State v. Howard, 51 Kan. App. 2d 28, 38, 

339 P.3d 809 (2014). The California Supreme Court has appropriately captured the 

danger in using such furtive gestures to support probable cause and the importance of 

keeping constitutional protections in mind when analyzing whether probable cause was 

present: 
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"The near-insufficiency of the evidence of probable cause upheld in certain . . . decisions 

suggests that police reliance on so-called 'furtive movements' has on occasion been little 

short of a subterfuge, and that in order to conduct a search on the basis of mere suspicion 

or intuition, guilty significance has been claimed for gestures or surrounding 

circumstances that were equally or more likely to be wholly innocent. . . . [T]he police 

officer should remember there is no substitute for patient and thorough investigation, and 

should avoid drawing a hasty or preconceived conclusion that the movements he observes 

are prompted by guilty motives . . . . [T]he appellate court, while giving due deference to 

the trier of fact's determination of the weight and credibility of testimony, . . . should 

keep firmly in mind the high purpose of the Fourth Amendment and remain ever vigilant 

to forestall any encroachment on its fundamental guarantees." People v. Superior Court, 

3 Cal. 3d 807, 827-28, 91 Cal. Rptr. 729, 478 P.2d 449 (1970).

Ultimately, the California court held that there was no probable cause to search the 

defendants' vehicle when the defendant passenger, upon being pursued by police for the 

defendant driver's traffic infraction, made a furtive gesture toward the floor of their car 

and the defendant driver walked back to the officer's car instead of waiting for the officer 

to come to him. People v. Superior Court, 3 Cal. 3d at 828. The court explained that the 

defendant's "gesture alone is insufficient to constitute probable cause to search, and [the 

codefendant's] walk toward the police car cannot reasonably be deemed to invest her 

gesture with guilty significance." People v. Superior Court, 3 Cal. 3d at 828.

Like the California Supreme Court, I would conclude that, here, the passenger's 

innocuous reclined seat is not a factor to be considered to establish probable cause and 

the presence of a torn plastic baggie in the console of the car did nothing to change that. 

Instead, the majority concludes that "it was fair for the officer in this case to infer 

from the passenger's action of reclining her seat that she was trying to hide something 

from [the officer's] view." Slip op. at 10. The majority supports this contention with a 

citation to cases from other courts that concluded a reclined seat helped support probable 

cause. However, only one of those cases considered a reclined passenger's seat, which is 
17

certainly less suspect than a reclined driver's seat because the passenger has no driving 

duties. And, in each of those cases, the reclined seat was joined by other suspicious 

behaviors that strongly suggested the drivers or passengers were attempting to remain 

undetected or hide something from view. The facts here are entirely different. 

In this case, Officer Loughman observed the passenger's seat in an upright position 

when Howard pulled into a parking lot. Once Howard left the lot, crossed the street, and 

entered a neighboring parking lot, the officer used his emergency lights to "initiate[] a 

traffic stop." When Howard pulled over and the officer approached the car, the 

passenger's seat was in a reclined position and the officer noticed a clear plastic baggie 

with a torn corner in the center console.

While it was obviously appropriate for the officer to infer that the passenger had 

reclined her seat, it is unreasonable to definitively infer from these facts that the 

passenger reclined the seat in response to the officer's pursuit. It is entirely possible that 

the passenger reclined before she was aware of the officer. The California Supreme Court 

has also noted the pitfalls with supporting probable cause with a suspicious movement 

when the officer does not know if the subject is aware of the officer's presence: 

"[Probable cause based on a furtive gesture] assumes that the movements in question 

were purposeful responses to the officer's appearance on the scene. But the person 

observed might not in fact have seen the police car, in which event any movements he 

made would be irrelevant. If he did see a vehicle following, he might not have recognized 

it to be a police car . . . . If he recognized it as such, he might not have understood that the 

police were attempting to bring his own car to a halt. If he correctly inferred the intent of 

the police, his movements might not have been made in response to that awareness; they 

might simply have been movements he was on the point of making in any event. And if 

his movements were responsive to the situation, they still might not have been 

purposeful: i.e., when suddenly facing an imminent confrontation with the police for 

some unknown misdeed, many citizens with nothing to hide will nevertheless manifest an 
18

understandable nervousness by means of random, undirected gestures or movements." 

People v. Superior Court, 3 Cal. 3d at 821-22.

While the reclined seat here could have been an attempt to hide something from an 

officer's view, it is just as likely that the passenger reclined the seat for the exact purpose 

that reclined seats exist—to make herself more comfortable. Adding to the improbability 

that the reclined seat could be reasonably viewed as an attempt to hide contraband, the 

officer here noticed that the passenger was visibly pregnant. In fact, the record reveals 

that the officer invited the passenger to sit on the ground after removing her from the car 

while he attended to Howard out of concern for the passenger's comfort and safety. 

Furthermore, the officer in this case testified that he searched the car for drugs based only 

on the plastic baggie—he did not cite the reclined seat as further indication that Howard 

had paraphernalia in his vehicle. These facts strongly indicate that a reasonable officer 

would just as likely see this passenger's reclined seat as a response to physical discomfort 

as opposed to an attempt to hide something. Such an action is not a furtive gesture upon 

which we should find probable cause.

To get to the majority's conclusion and find probable cause, we have to make the 

inference that the passenger reclined the seat after becoming aware that the officer was 

pursuing Howard's vehicle. From this inference, we have to further infer that the 

passenger reclined in order to hide contraband in which she had no possessory interest 

from the officer's view, and not simply to make herself more comfortable. I would 

conclude that these stacked inferences are weak and unreasonable and do not help to 

establish a fair probability that the vehicle contained contraband or evidence.

This leaves nothing to support the probable cause analysis apart from the officer's 

experience and the plastic baggie with the torn corner. The Court of Appeals considered 

these two factors enough to establish probable cause. Howard, 51 Kan. App. 2d at 41. 

I disagree. I would agree that an officer's experience is an appropriate consideration when 
19

analyzing whether probable cause existed and that a plastic baggie with a torn corner, 

coupled with an officer's experience, may help to establish probable cause when 

combined with other significant factors. However, I would conclude that an officer's 

experience and a plastic baggie with a torn corner are not enough, on their own, to 

establish probable cause to search a vehicle. 

We suggested as much in Ramirez, when we considered whether a torn plastic 

baggie, combined with other factors, would establish probable cause. There, we 

explained: 

"Where one or two factors may cause a reasonable suspicion, a combination of 

several factors may create probable cause. This point is illustrated by drug cases 

considering whether the presence of portions of baggies, glassine packages, or similar 

suspicious packaging is sufficient to establish probable cause.

'[T]he observation of a person in possession of a certain kind of envelope or other 

packaging which on other occasions involving other persons has been found to conceal 

narcotics does not, standing alone, constitute probable cause. It has even been held that 

the viewing of a passing of such a container from one person to another is not enough, 

though it would seem that little more than that should be necessary. Certainly if money is 

passed in exchange there are then grounds to arrest, and the small gap can also be filled 

by "furtive or evasive behavior," prior information from an informant, or the fact that the 

locale "has developed a reputation as a drug marketplace."' (Emphasis added.) 2 LaFave, 

Search and Seizure § 3.6(b), pp. 299-301, and 2004 Pocket Part, pp. 47-49 (1996)." State 

v. Ramirez, 278 Kan. 402, 407-08, 100 P.3d 94 (2004).

In State v. Jones, 300 Kan. 630, 333 P.3d 886 (2014), we considered whether an 

intact plastic baggie, combined with erratic driving and the driver's cotton mouth and 

slurred speech, was enough to establish a reasonable suspicion of criminal activity, thus 

permitting an officer to extend a traffic stop. We held that these factors were not enough 

to create reasonable suspicion. 300 Kan. at 648. We noted that "[c]ommon sense suggests 
20

that if the bag had been used to package illegal substances, [the driver] or her companions 

would have hidden the bag along with its contents. There is no evidence of an attempt to 

do so . . . [and] there are a multitude of innocent uses for clear plastic bags . . . ." 300 

Kan. at 647-48. We also summarized the Ramirez holding as providing that probable 

cause is "not met simply because [a] person possesses [a] type of packaging that on other 

occasions had been used to conceal narcotics." 300 Kan. at 648. 

Because other factors helped to establish probable cause in Ramirez, and the facts 

were slightly different in Jones, we did not definitively decide whether a torn plastic 

baggie and an officer's experience alone established probable cause in either case. 

However, other courts have addressed this question, concluding that the two factors, on 

their own, are not enough. See Com. v. Garcia, 34 Mass. App. 645, 651, 614 N.E.2d 

1031 (1993) (trooper's experience and empty baggie not enough to provide probable 

cause to conduct a warrantless search of the automobile); Com. v. Houston, 456 Pa. 

Super. 105, 111, 689 A.2d 935 (1997) (officer's observation of "six plastic baggies with 

their corners cut off in a manner consistent with drug packaging" not enough to establish 

probable cause).

Neither the State, nor the majority, nor the Court of Appeals produced a single 

instance in which a court concluded that probable cause existed based solely on a torn 

plastic baggie and an officer's experience. To provide that decision today would appear to 

stray from our decisions in Ramirez and Jones. Nor did anyone produce a case in which 

something as innocuous and innocent as a torn plastic baggie could transform a similarly 

innocent activity—reclining a seat—into something suspicious enough to establish 

probable cause. And, perhaps most importantly, either decision would all but destroy any 

protection still provided by the Fourth Amendment's assurance that we are free from an 

unreasonable search of our vehicles. For these reasons, I would conclude that there was 

not probable cause to search Howard's car. 
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Because I would conclude that there was not probable cause to search Howard's 

vehicle, I would conclude that the district court erred in denying Howard's motion to 

suppress the firearm that was found in the illegal search. Because the possession of the 

firearm was an essential element of the crime charged, I would reverse the Court of 

Appeals and remand to the district court with orders to reverse Howard's conviction. 

JOHNSON, J., joins in the foregoing concurring and dissenting opinion.