Opinion
No. 106,684.
2012-10-19
STATE of Kansas, Appellee, v. Lewis Ray LITTON, Appellant.
Appeal from McPherson District Court; Joe Dickinson, Judge. Ty Kaufman, of McPherson, for appellant. Gary Luke Foiles, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from McPherson District Court; Joe Dickinson, Judge.
Ty Kaufman, of McPherson, for appellant. Gary Luke Foiles, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., MALONE and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this appeal, Lewis Ray Litton claims the police conducted an illegal search. Officers found a baggie of marijuana and a marijuana pipe on Litton's person when he was searched during the execution of a search warrant authorizing the search of a farm where Litton lived in a camper, and “all persons” found on that farm. He contends the search warrant was defective because the section of the warrant describing the persons or place to be searched was blank. In addition, Litton argues that there was no probable cause for the magistrate to issue an all-persons search warrant.
Under Kansas law, technical irregularities in a search warrant that do not affect the substantial rights of the accused are insufficient grounds to quash the warrant. Because the information describing the place to be searched is found on the first page of the warrant and not in the appropriate section on page two, we hold this is a technical irregularity that did not affect Litton's substantial rights. It is certainly not a defective warrant.
Moving to Litton's second point, we note that in order to obtain a “search all persons” search warrant, the police must show the magistrate sufficient facts that there is probable cause to believe that the sole or primary activities at a location subject to the search warrant is the sale or manufacture of illegal drugs and that everyone present is involved in the illegal activity. A fair reading of the supporting 35–page affidavit here reveals that the owner of the farm, and others, had been seen manufacturing methamphetamine at different locations on the farm. Methamphetamine production occurred whenever anhydrous ammonia could be obtained, usually every weekend. Materials necessary for the manufacture of this drug could be found at several spots on the farm. The owner's associates had purchased large quantities of pseudoephedrine at various locations around the county. The owner of the farm and others were well armed, including a belt-fed M–60 machine gun. Homemade explosive devices had been buried at various spots in case the farm was raided by the police. With all of this information, we hold there was probable cause to issue an all-persons search warrant.
In addition, based upon a fair reading of the warrant, we conclude that there was no reason for a police officer to question the validity of this search warrant. Therefore, the good-faith exception to the exclusionary rule applied here, and the contraband is admissible under that theory as well.
After a long investigation, a drug task force seeks a search warrant.
The Saline County Sherriff's I–135/I–70 drug task force sought a search warrant for the search of Robert Weller's farm at 2818 27th Avenue, Roxbury, McPherson County. Investigator Michael D. Ascher, a trained and experienced narcotics investigator, authored the affidavit seeking the warrant from the McPherson County District Court. Ascher's affidavit asserted that there was evidence of the crimes of manufacture of methamphetamine, possession of methamphetamine, and felony possession of drug paraphernalia to be found on the farm.
In the affidavit, Investigator Ascher stated that the drug task force had received numerous complaints of drug activity at 2818 27th Avenue, Roxbury. Investigator Ascher believed that the complaints and intelligence indicated multiple individuals had been involved in the manufacture of methamphetamine on Weller's property since approximately 2001.
The court issued a search warrant authorizing the search of the home, outbuildings, storage sheds, and all vehicles located at 2818 27th Avenue, Roxbury. The warrant found probable cause that the crimes of possession and manufacture of methamphetamine had been committed, and authorized the search of the property to find those drugs and any other controlled substances. The warrant also authorized the seizure of any drug paraphernalia, bookkeeping records relating to controlled substances, firearms commonly used by drug dealers or drug users, and equipment used to manufacture controlled substances. The warrant further authorized the search of “all persons present on the property” during the execution of the warrant.
The next day, law enforcement officers executed the search warrant and arrested four individuals and seized 46 items as evidence. When the McPherson County SWAT team entered Weller's residence, they found Lewis Ray Litton and Weller. Litton was taken down to the floor and immediately handcuffed. When officers asked Litton if he had any weapons or drugs in his possession, Litton advised the officers that he had a bag of marijuana in his pocket. Officer Chad McCary, an investigator for the I–135/I–70 drug task force in Salina, searched the front pockets of Litton's pants and found a baggie containing 11.9 grams of marijuana and a marijuana pipe.
The State charged Litton 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). The trial court found him guilty after refusing to suppress the contraband as the product of an illegal search.
The search warrant was not defective on its face.
Litton claims that the district court should have suppressed all evidence seized under the search warrant because the search warrant was facially defective. We think the complaint Litton has about the search warrant is a technical irregularity not worthy of a reversal of the district court.
Litton first argues that law enforcement executed a facially defective search warrant because it did not include a description of the places or persons to be searched in the appropriate section at the bottom of the first page following the section describing the items to be seized.
It is true that the search warrant did not include any description in its logical location after the statement: “which items are contraband, or are fruits, instrumentalities or evidence of such offense and are located in or upon the following described persons, places, thing or means of conveyance, to wit.” The search warrant, however, did include after the title at the top of the first page the following detailed description of where officers sought permission to search:
“2818 27th AVENUE, ROXBURY, MCPHERSON COUNTY, KANSAS, A TWO STORY WOOD–FRAMED RESIDENCE THAT IS LOCATED ON THE EAST SIDE OF 27th AVENUE JUST NORTH OF WELLS FARGO ROAD. THE RESIDENCE IS WHITE OVER GRAY IN COLOR. ON THE SOUTH (FRONT) SIDE OF THE RESIDENCE AND THERE IS A WHEELCHAIR RAMP LEADING TO THE FRONT DOOR; A GRAY METAL OUTBUILDING LOCATED SOUTH OF THE RESIDENCE ON THE PROPERTY; SEVERAL OTHER OUTBUILDINGS AND STORAGE SHEDS LOCATED ON THE PROPERTY; AND NUMEROUS VEHICLES LOCATED ALL THROUGHOUT THE PROPERTY, INCLUDING BUT NOT LIMITED TO A CAMPER AND A SCHOOL BUS THAT ARE LOCATED NORTH OF THE RESIDENCE. SEE ATTACHMENT # 1....”
Investigator Ascher's affidavit requested to search the identical location and included Attachment # 1, an aerial photograph of the property in question taken on July 15,2010.
When it addressed this argument, the district court found that the search warrant was not facially defective because “there was no question that the judge who signed the search warrant intended that the specific location described at the top of the first page would be the location to be searched.” Also, the district court ruled that Attachment # 1 did not have to be attached to the search warrant when it was executed because the aerial photograph was surplusage to an already adequate description of the property to be searched. We agree.
Fundamentally, the controlling law on this point is K.S.A. 22–2511. That statute states that no search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the defendant. Other than a conclusory argument that brushes over the existence of the description on the first page of the search warrant, Litton does not describe how he was prejudiced by this irregularity. The information was in the document, just in the wrong place. We will not reverse on these grounds.
There was probable cause to issue an all-persons search warrant.
Litton next argues that the search warrant contained insufficient facts or probable cause to justify the search and detention of all persons on the scene. This is a much more serious argument because of our Constitutional heritage prohibiting general warrants. A brief review of the law is helpful here.
The Fourth Amendment to the United States Constitution and Section 15 of the Kansas Bill of Rights provide that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or property to be seized. See State v. Fewell, 286 Kan. 370, 376, 184 P.3d 903 (2008).
The next level of inquiry turns to all-persons search warrants. In State v. Jackson, 30 Kan.App.2d 288, 291–92, 41 P.3d 871 (2002), this court addressed the validity of a search warrant authorizing the search of all persons present and stated:
“When reviewing the validity of a search warrant, this court must determine whether the magistrate had a substantial basis for issuing it. A substantial basis for the warrant depends on whether probable cause existed under the totality of the circumstances. In making that determination, this court gives great deference to the magistrate's determination. A magistrate is required to assess all of the circumstances presented and make a practical, common-sense decision about whether a crime has been committed or is in the process of being committed and whether there is a fair likelihood that the evidence will be found in the place specified. [Citation omitted.]
“Although general warrants are constitutionally prohibited, warrants authorizing the search of all persons present at a location are not per se invalid. [Citations omitted.] In cases involving drugs, the facts in the affidavit must infer that the sole or primary activity at the location subject to the search warrant is the sale of drugs and that everyone present is involved in the illegal activity. [Citations omitted.]”
Similarly, this court, in State v. Loins, 26 Kan.App.2d 624, 627–28, 993 P.2d 1231 (1999), rev. denied 269 Kan. 938 (2000), examined what information is sufficient for an all-persons search warrant to infer that the primary activity at a location is the sale of drugs. The court in Loins stated: “Generally, an ‘all-persons' search warrant will be upheld when the affidavit includes information that the place to be searched is a private residence, that drug use and distribution occur at the place, and that there was a regular traffic of persons entering to make purchases. [Citations omitted.]” 26 Kan.App.2d at 627.
Next, we examine the facts of this case. The 35–page affidavit indicated that drug task force investigators had been investigating and gathering information from reliable confidential informants and other named and anonymous informants regarding the manufacture of methamphetamine at 2818 27th Avenue, Roxbury, from February 6, 2001, until November 8, 2010, the day the search warrant was issued.
The facts in the affidavit support the suspicion that Weller allowed various individuals to manufacture methamphetamine and hide the items used in the manufacturing process throughout his property in exchange for some of the finished product. Highly summarized, the affidavit reveals:
(1) Weller and numerous other known and unknown individuals were observed manufacturing methamphetamine at various locations on Weller's property;
(2) Methamphetamine production on Weller's property typically occurred whenever anhydrous ammonia could be obtained, or every weekend, as indicated by burn barrels being used near the shed. During 5 days of surveillance over a 3–week period in 2010, investigators observed fires in burn barrels on Weller's property on at least 2 days. On 4 of those days, investigators observed several unknown males outside by the shed and the residence;
(3) Materials used to manufacture methamphetamine, including anhydrous ammonia, were observed on Weller's property, or their location was described to investigators. One confidential informant showed investigators cell phone pictures of the materials;
(4) Individuals were observed delivering pseudoephedrine pills, an item used in the manufacturing process of methamphetamine, to Weller's property. Informants also named several individuals who were known to have purchased pseudoephedrine specifically for the methamphetamine production on Weller's property. The affidavit conceded this information could not be corroborated. Investigators, however, obtained approximately 2 months of pseudoephedrine logs from pharmacies located in both Saline and McPherson County, which indicated multiple purchases by suspected conspirators in the methamphetamine production;
(5) Weller and other individuals were observed buying supplies used in the manufacturing process of methamphetamine;
(6) Individuals were observed using methamphetamine on Weller's property;
(7) Weller was known to have purchased an AK–47 assault rifle and an SKS assault rifle. Weller also kept a pistol near his bed. One of the alleged methamphetamine cooks was known to own a belt-fed M–60 machine gun. According to one informant, there were enough guns at the residence “to fend off a small army;” and
(8) There were homemade explosive devices on the property marked by flags so they could be set off. Investigators also spoke with individuals living in the area who reported having heard gunshots coming from Weller's property, having been shot at from Weller's property while farming, and having seen traffic coming and going from the property throughout the night. The affidavit also noted that several of the suspects had been convicted of methamphetamine-related drug charges during the ongoing investigation.
We deem those facts sufficient to give the magistrate probable cause to decide that the primary activity on Weller's property was the manufacture of methamphetamine and that everyone present was involved in this illegal activity.
But our analysis does not end there. While the district court at the suppression hearing briefly addressed the evidentiary support for its findings regarding whether the issuing judge correctly determined that the primary illegal activity on Weller's property involved drugs, the district court did not clarify its finding justifying the search of all persons. Evidence of an “ongoing criminal operation” on an entire property by itself is insufficient to support a legal conclusion validating an all-persons search warrant. To deny Litton's motion to suppress and validate the issuing judge's all-persons search warrant, we must be convinced the district court had substantial competent evidence to accept as true that when the police executed the search warrant (1) the sole or primary activity on Weller's property was the manufacture of methamphetamine, and (2) everyone present, including Litton, would be involved in the illegal activity. See State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2000).
We look first at the affidavit itself. Investigator Ascher's affidavit mentioned Litton in the following three paragraphs:
“ON OCTOBER 17th, 2010, CI # 10–20 ADVISED INVESTIGATOR RUPERT THAT LEWIS LITTON (WHO IS LIVING IN A CAMPER ON THE PROPERTY) STATED THAT RUMMEL HAS BEEN OUT AT THE FARM ALMOST EVERY DAY TO COOK METHAMPHETAMINE OR ‘RE–RINSE BRAINS FOR FILTER DOPE.’...
“ON OCTOBER 20th, 2010, CI # 10–20 STATED THAT A COUPLE DAYS PRIOR, ROBERT WELLER PULLED HIS GUN, POINTED IT AT LEWIS LITTON AND TOLD HIM THAT HE WAS GOING TO KILL HIM IF HE DIDN'T SHUT HIS MOUTH.
....
“ON OCTOBER 28th, 2010, CI # 10–20 REPORTED TO INVESTIGATOR RUPERT THAT LEWIS LITTON STATED RUMMEL WAS AT THE FARM AT 2:00 A.M.”
At the suppression hearing, Investigator Ascher agreed that (1) he could not testify that every person on Weller's property since 2001 was involved in illegal activities; (2) he had information that indicated Litton and other persons were not participating in illegal activities of any kind on Weller's property; and (3) the tools and equipment on Weller's property indicated that there were legal activities occurring on Weller's property. When Investigator Ascher was asked if anything in his affidavit indicated Litton was involved in illegal activities, Investigator Ascher responded, “No, sir. He was not the target of our investigation.” Investigator Ascher also agreed that the three references to Litton in his affidavit were exculpatory and the affidavit contained no information indicating Litton was armed or a danger to law enforcement.
But, importantly, Investigator Ascher also stated the following basis for seeking an all-persons search warrant:
“Basically from 2001 until 2010, the date of the execution, Drug Task Force had received countless complaints about manufacturing of methamphetamine. Came from numerous sources, some informants, some named individuals, some individuals that weren't informants but were anonymous reporting parties, that individuals went out there to do illegal activities. Granted they might not be involved in illegal activities one hundred percent of the time, however, there was illegal activities and numerous people were involved in those illegal activities. That's the reason I sought an all persons warrant.”
Despite Investigator Ascher's acknowledgment that the investigation indicated there were both legal and illegal activities taking place on Weller's property, the affidavit implies that the primary, but not the only, activity on Weller's property was the manufacture of methamphetamine. See Jackson, 30 Kan.App.2d at 292. The district court's finding that the primary activity on Weller's entire property was illegal is supported by substantial competent evidence. Clearly, this substantial competent evidence supports a conclusion by the judge that everyone on the farm, including Litton, could be involved in criminal activity. Accordingly, the search warrant was valid as to its authorization to search the entire property.
Even if we ruled that the district court did not have substantial competent evidence to infer that everyone, including Litton, was involved in the illegal activity on Weller's farm, the evidence against Litton need not be suppressed, because of the good-faith exception to the exclusionary rule.
Evidence seized under a search warrant should only be suppressed “on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” United States v. Leon, 468 U.S. 897, 918, 104 S.Ct. 3405, 82 L.Ed.2d 677,reh. denied468 U.S. 1250 (1984).
Leon provides that the seized evidence is not excluded unless (1) the judge or magistrate who issued the warrant was deliberately misled by false information; (2) the judge or magistrate completely abandoned his or her neutral and detached role; (3) the search warrant is so lacking in specificity that the officers could not determine either the place of the search or the items to be seized; or (4) the warrant contains so little indicia of probable cause that it is entirely unreasonable for an officer to believe that the warrant is valid. 468 U.S. at 923;State v. Hoeck, 284 Kan. 441, Syl. ¶ 1, 163 P.3d 252 (2007).
None of the Leon exceptions apply here. Litton does not assert that the issuing judge was deliberately misled by false information. There is no evidence that the issuing judge completely abandoned his neutral and detached role. We have already ruled that the search warrant was not facially defective, so the warrant was not lacking in specificity. Finally, with an objective reading, there was no reason for an officer to question the validity of the warrant based on its face. See State v. Probst, 247 Kan. 196, 204, 795 P.2d 393 (1990).
The evidence seized under the search warrant is admissible under the good-faith exception to the exclusionary rule. Accordingly, we affirm Litton's convictions.