Opinion
No. 107,031.
2013-01-11
STATE of Kansas, Appellee, v. Chance HAUG, Appellant.
Appeal from Rice District Court; Ron Svaty, Judge. Rick Kittel, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, Scott E. McPherson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Rice District Court; Ron Svaty, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, Scott E. McPherson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
LEBEN, J.
Chance Haug was charged and convicted of drug offenses after a police officer came to his home to investigate a hang-up call to 911 that came from the house. Haug's sister, who was also living there, agreed that the officer could go through the house to make sure there was no one there who might need help. While following Haug's sister through the house, the officer spotted marijuana and drug paraphernalia in Haug's bedroom.
Haug argues on appeal that the district court should have suppressed the evidence the officer found in the home because the officer entered the home without a warrant. But an officer may enter a home without a warrant if given consent. Here, Haug's sister had sufficient control of the common areas of the home to give consent for the officer's entry. We therefore affirm Haug's convictions.
Factual Background
On a Friday afternoon in May 2010, Officer Kenneth Nephi Richardson was dispatched to a house in Lyons, Kansas, to investigate a 911 hang-up call. A woman answered the officer's knock on the door. The officer asked for and received the woman's driver's license, which indicated that her name was April Haug. April's driver's license was issued to an address in Topeka rather than the house that was being investigated. Despite the different address on the driver's license, Officer Richardson said he believed that April lived in the house because she had walked out of it when he knocked. Later, on the officer's written report, he listed April's address as 602 East Main Street—the house he was investigating.
Richardson explained to April that he was investigating a 911 hang-up call and asked if she had called 911; April responded that she hadn't. According to Richardson, April appeared nervous, flustered, and surprised. He asked her whether anyone else was in the house, and she said no one else was there. Based on April's behavior and the 911 hang-up call, Richardson said that he was concerned that there might have been an altercation inside the house involving someone else who was still inside. Richardson asked if he could check to see whether anyone else was there, and April said he could.
Richardson first entered the front room or family room of the house, and April then led him down a hallway. She pointed to a bedroom on the right that she said was hers and one on the left that she said was her brother's.
According to Richardson, as they moved along, April kept “darting ahead” to shut cupboards and doors. Stopping at the doorway of the brother's room—while April walked into the room—Richardson saw what he believed to be a marijuana cigarette inside that bedroom. Richardson took the cigarette and other items on a table that he suspected also were contraband—a metal clip, green sticks with seeds, and two more rolled-up cigarettes.
April told Richardson that her brother, Chance, worked at the Lyons Cemetery, and Richardson found Haug there. Haug eventually admitted that the cigarettes contained marijuana and belonged to him, and he gave the officer a written statement to that effect.
Lab tests confirmed that the cigarettes contained marijuana, and the State charged Haug with possession of marijuana in violation of K.S.A.2010 Supp. 21–36a06(b)(3) and possession of drug paraphernalia in violation of K.S.A.2010 Supp. 21–36a09(b)(2). Because Haug had been convicted of possession of marijuana once before, this marijuana-possession charge was a drug–severity–level–4 felony offense under K.S.A.2010 Supp. 21–36a06(c)(2).
Haug filed a motion to suppress all evidence and statements stemming from the officer's search of the house. He claimed that the officer had no valid reason to enter the home and that April had neither actual nor apparent authority to consent to the officer's entry. Haug contended that all of the evidence against him must be suppressed because all of it was obtained as a result of the illegal search of his home.
After hearing evidence, the district judge found that Richardson's entry to the home was justified by exigent circumstances, meaning, in this case, that the entry was justified due to the officer's concern for the safety of April or others who might have been in the house. The judge initially expressed some skepticism about whether Richardson could have had reasonable grounds to believe that April could give permission to search the house, but he ultimately declined to rule on the question of consent:
“Well, I'm telling you, from this Court's point of view, at that time there [were] exigent circumstances. And I believe the officer articulated that.... If it's exigent circumstances I'm going to rule that this entry was okay.... I'm not going to worry about whether he thought [April Haug] could give consent.”
The judge denied the motion to suppress, finding that exigent circumstances justified the search and that the evidence had been in plain sight.
Haug was convicted of both charges in a trial to the court. During that trial, Haug renewed his objection to the legality of the search and the admission of the evidence that resulted from it.
The judge sentenced Haug to an underlying prison term of 30 months on the felony marijuana-possession charge and 12 months on the drug-paraphernalia charge, with the sentences to run concurrently for a total sentence of 30 months. But the judge also granted Haug probation, so Haug will not serve the prison sentence unless he fails to successfully complete his probation.
Haug has appealed his convictions, contending that the district court should have granted his motion to suppress the evidence against him.
Analysis
The evidence against Haug was discovered during a warrantless search of his residence, and the warrantless entry into a person's home is generally a violation of the person's Fourth Amendment rights unless a specific exception to the warrant requirement applies. See State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied––– U.S. ––––, 131 S.Ct. 2114, 179 L.Ed.2d 908 (2011). So we must determine whether one applies. The candidates in this case are consent, exigent circumstances, and the emergency doctrine. See State v. Sanchez–Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012). If one of them applies, then the search was lawful; if none apply, then the search was unlawful and the evidence should have been suppressed.
On appeal of the district court's ruling on a motion to suppress evidence, we first must accept the district court's factual findings if they are supported by substantial evidence. We then review the ultimate legal conclusion—the reasonableness of the search, or here, the applicability of an exception to the warrant requirement—independently, without any required deference to the district court. 294 Kan. at 54, 272 P.3d 34.
We will start our analysis with the question of consent. Consent may be given by a person who has common authority over the premises. State v. Porting, 281 Kan. 320, Syl. ¶ 3, 130 P.3d 1173 (2006). In that circumstance, the search is proper because the person who consented to it had actual authority to consent. In addition, a search will be upheld where the person who gave consent appeared to have authority to consent as viewed by an officer of reasonable caution. That's referred to as apparent authority. 281 Kan. 320, Syl. ¶ 5, 130 P.3d 1173. If a person has actual authority to consent to a search, we need not move on to the apparent-authority question. See Illinois v. Rodriguez, 497 U.S. 177, 188–89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990); State v. Kerestessy, 44 Kan.App.2d 127, 133, 233 P.3d 305 (2010); State v. Udell, 34 Kan.App.2d 163, 167, 115 P.3d 176 (2005).
In our view, April had actual authority to consent to a search of all parts of the house except for Haug's bedroom. In what apparently was a two-bedroom house, she occupied one bedroom and her brother occupied the other, and the two bedrooms were reached through a common hallway. While Haug argues on appeal that April's driver's license listed a different address, Haug has not disputed that April was living at the house. Nor did he present any evidence that she lacked common authority over the common areas of the house.
No evidence suggests that April had actual authority to consent to a search of Chance Haug's bedroom—a private bedroom isn't a common area of the house. But the officer testified that he spotted the marijuana from the doorway after April had entered Chance's bedroom. An officer may seize incriminating evidence in plain view without a warrant so long as the officer was lawfully present at the place from which the item was spotted. See State v. Fisher, 283 Kan. 272, 293–95, 154 P.3d 455 (2007).
Although we have already concluded that the evidence shows that April had actual authority to consent to a search of the home's common areas, we will proceed to consider whether the search could also be authorized on an apparent-authority basis. We do so for two reasons. First, both parties have argued the consent issue on appeal primarily on an apparent-authority basis. Second, at least some of the evidence about April's statements to the officer was admitted under a hearsay exception: the officer's testimony about what April said to him was admitted not for the truth of the statements but for their relevance to the officer's understanding of the situation. Although Haug has not argued that point on appeal, the parties' emphasis of the apparent-authority question over actual authority suggests that we should also address apparent authority, especially given the limited purposes for which some of the evidence was admitted.
For apparent authority, we focus on whether the facts available to the officer “would warrant a person of reasonable caution to believe that the consenting party had authority over the premises to be searched.” Porting, 281 Kan. 320, Syl. ¶ 5, 130 P.3d 1173. An officer does have a duty to inquire when it is not clear whether a person has sufficient authority over common areas that the person can consent to a search. Kerestessy, 44 Kan.App.2d at 134, 233 P.3d 305. But here, other than the address on April's driver's license, all of the facts available to the officer suggested that April lived in the house and that she had common authority over the common areas: she was living in one of two bedrooms in what was apparently a two-bedroom house. The facts were sufficient to warrant an officer of reasonable caution to believe that she had common authority over the premises.
We conclude that April consented to the officer's entrance into the Haug residence, which authorized the officer to enter any of the home's common areas. He then observed apparent contraband in plain view in Haug's bedroom while the officer was in a common area of the home. We therefore conclude that the officer's actions were legal, and we affirm the district court's denial of Haug's motion to suppress evidence. Although the district court relied on a different exception to the warrant requirement, it properly denied the motion. See State v. May, 293 Kan. 858, 869–70, 269 P.3d 1260 (2012) (holding that when the district court reaches the correct result, its ruling will be upheld even if it relied upon an incorrect reason).
The district court's judgment is affirmed.