Opinion
No. 111205.
05-22-2015
STATE of Kansas, Appellee, v. Marvin MANNS, Appellant.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
The State charged Marvin V. Manns with possession of cocaine after police officers discovered drugs in Manns' bedroom while searching a home pursuant to a search warrant. Prior to trial, Manns moved to suppress the evidence on the grounds that the affidavit supporting the warrant did not establish probable cause, but the district court denied his motion. Manns proceeded to trial on stipulated facts and was convicted. Manns timely appealed but passed away during the pendency of this proceeding.
Factual and Procedural Background
In February 2013, the State charged Manns with a single count of possession of cocaine stemming from the search of a residence in Wichita, Kansas. Officers from the Wichita Police Department arrived at that address to serve a warrant, and while executing it, they discovered crack cocaine in Manns' bedroom.
The affidavit supporting the warrant application stated that Officer C.M. Hornberger of the Wichita Police Department learned from a confidential informant (CI) that an African–American man living at a residence on East 22nd Street North in Wichita, Kansas, was selling marijuana out of the residence. Officer Homberger arranged for the CI to go to that address and attempt to buy marijuana. Before the controlled buy, Officer Homberger strip-searched the CI, searched the transport vehicle, and uncovered no contraband or money in the CI's control. Officer Homberger provided the CI with money and followed the CI to the address, where he waited outside and watched as the CI approached and entered the house. The CI reemerged a short time later, and Officer Homberger watched the CI enter the transport vehicle and followed that vehicle back to the police station. The CI contacted no one else during this time period.
After returning to the police station, the CI turned over two baggies containing green plant material that tested positive for marijuana. The CI stated that an African–American man inside the residence provided the baggies and encouraged the CI to return if more marijuana was needed. The CI also informed officers about surveillance cameras outside the residence. The CI and the vehicle were searched again, and no contraband or money was found. The affidavit included information about Officer Homberger's training and experience, as well.
Prior to trial, Manns moved to suppress the evidence collected pursuant to the search warrant on the grounds that the warrant was not supported by probable cause.
Manns specifically pointed to the lack of information about the CI's credibility, the crimes actually occurring in the home, and the person from whom the CI purchased the marijuana. Without more information, Manns argued, the affidavit failed to establish probable cause and the judge who approved the warrant essentially rubber stamped it.
The State began by arguing that the judge's annotation in the margin of the application regarding a knock-and-announce issue demonstrated that he read the affidavit carefully and therefore eliminated any chance he simply rubber-stamped the warrant. Concerning the amount and detail of information in the affidavit, the State contended that most of the information that Manns claimed was missing was not relevant to the question of probable cause and that the controlled buy by the CI combined with safeguards the officers put in place to oversee that buy supplied probable cause. Moreover, the State also argued that even if the affidavit failed to establish probable cause, the good-faith exception applied.
The district court denied Manns' motion. Although the district court noted that the warrant application was “fairly ... bare bones” and that more information would have strengthened the probable cause determination, the district court found it important that the affidavit noted that the CI was watched throughout the buy and searched both before and after purchasing the marijuana. The district court also observed that the controlled buy occurred very shortly before the application for the warrant and that the CI was encouraged to return to the house for more marijuana. As such, the district judge stated, “I do find that although very weak, I guess, the probable cause is sufficient.” The district court also discussed the good-faith exception and found that there would be no reason to apply the exclusionary rule in Manns' particular case.
Manns proceeded to a bench trial on stipulated facts. Prior to the trial, he entered a continuing objection to the evidence seized pursuant to the search warrant. The district court found Manns guilty based on the stipulation.
The district court sentenced Manns to a departure sentence of 12 months' probation with an underlying sentence of 32 months' imprisonment. Manns timely appealed. However, at some point during the pendency of this appeal, Manns died. Due to his death, the State filed a motion asking this court to dismiss Manns' appeal as moot based on the recent Kansas Supreme Court case State v. Hollister, 300 Kan. 458, 329 P.3d 1220 (2014). After reviewing the case, this court dismissed all of Manns' pending appellate issues excepting his challenge to the denial of the motion to suppress. This court determined that it could not at that time decide whether reversal of the district court on the suppression issue would exonerate Manns. As such, the court ordered that Manns also brief the mootness issue.
Analysis
Does Manns' death render this appeal moot?
The first issue on appeal is whether Manns' death renders this appeal moot based on the Supreme Court's recent Hollister decision. In Hollister, the defendant was convicted of capital murder and sentenced to a life sentence without the possibility of parole. However, he passed away after filing a timely notice of appeal. After reviewing both historical and recent precedent, our Supreme Court noted that although Kansas previously declined to abate a defendant's criminal appeal due to his or her death, more recent decisions “subtly indicated not all issues will be reviewed.” 300 Kan. at 465–66. Our Supreme Court found that such decisions instructed “that the general nonabatement rule ... does not require an appellate court to consider the merits of every issue raised in the deceased defendant's appeal.” 300 Kan. at 466–67. The court reasoned that this updated approach comported with its “broader approach to addressing moot issues in other contexts” and held that “an appellate court should consider whether an issue: (1) is of statewide interest and of the nature that public policy demands a decision ...; (2) remains a real controversy; or (3) is capable of repetition. Only issues meeting one of these criteria should be addressed.” 300 Kan. at 467.
Applying these principles to the defendant in Hollister, our Supreme Court determined that “the only issue that would clear [the defendant's] name is an insufficiency of [the] evidence issue” and that none of the other issues in the appeal were of such statewide interest as to demand consideration on the merits. 300 Kan. at 467. Instead, the court determined those issues were “unique to this case and ... heavily fact dependent,” and “none of them would settle an issue of public policy given their case-specific nature.” 300 Kan. at 468. The court considered only the issue concerning the sufficiency of the evidence against the defendant, as it was “the issue that might exonerate [him].” 300 Kan. at 468.
Here, the State argues in its brief that the suppression issue in this case is similar to those issues in Hollister that our Supreme Court declined to consider. The State reasons that even if Manns' argument succeeds on appeal and this court reverses the evidentiary ruling, Manns could potentially still be tried for possession of cocaine. In his supplemental brief, Manns claims that a reversal on the suppression issue would be “tantamount to exoneration” because the State “possesses little other evidence against the defendant.” Specifically, Manns argues that because the district court convicted him on stipulated facts, success on the suppression issue guarantees his exoneration because it would exclude all the State's evidence against him and preclude a retrial.
Manns cites no caselaw indicating or even suggesting that a reversal of the district court's decision on a motion to suppress in a case tried on stipulated facts results in an instant exoneration. In fact, our Kansas caselaw suggests otherwise. For example, in State v. List, No. 102,851, 2010 WL 5490733, at *4–5 (Kan.App.2010) (unpublished opinion), this court reversed and remanded a conviction based on stipulated facts with directions to the district court “to grant the motion to suppress” that it erroneously denied without reference to also exonerating the defendant based on lack of evidence. In another case, State v. McGonigle, No. 108,077, 2013 WL 3970187, at *5 (Kan.App.2013) (unpublished opinion), another panel of this court simply reversed and remanded the case “for further proceedings” when a district court erred in denying a motion to suppress and the defendant's conviction arose from a trial on stipulated facts.
As the State observes in its brief, there is no indication that the evidence seized pursuant to the search warrant is the only evidence against Manns. The suppression hearing concerned only a question of law, and neither party presented any testimony regarding either the seizure of evidence or the other evidence available. Similarly, although the preliminary hearing testimony in this case concerns only the evidence seized pursuant to the warrant and statements by Manns after his arrest, nothing in the record suggests that the seized evidence is the sum of all evidence against Manns. Instead, aside from Manns' conjecture that no other evidence exists, there is nothing in this case indicating that the State could not proceed to a retrial even without the evidence at issue.
In Hollister, our Supreme Court noted that “all other issues [other than that concerning the sufficiency of the evidence] would require a remand for new trial if error was found, but a new trial would be impossible given [the defendant's] death.” 300 Kan. at 467. The same is true here. Even if the district court erred when denying Manns' motion, the remedy is to reverse and remand the case with directions to grant the motion—not, as Manns appears to argue, to posthumously clear his name. Moreover, Manns offers no other justification as to why this issue should be considered. As such, this appeal is dismissed due to Manns' death.
Did the district court err in failing to suppress the evidence collected pursuant to the search warrant?
Regardless of the ruling to dismiss the appeal due to Manns' death, Manns cannot prevail on appeal. Manns argues that the search warrant was not supported by probable cause, thereby rendering the search of the residence—and seizure of the crack cocaine—illegal. We find that the ruling of the district court in denying Manns' motion to suppress was correct.
When 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. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). Substantial evidence refers to such legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). However, the appellate courts do not reweigh the evidence or reassess the credibility of the witnesses, and the ultimate legal conclusion drawn from those factual findings is reviewed under a de novo standard. Martinez, 296 Kan. at 485.
In Kansas, a search warrant shall be issued only when the statements in support of that warrant allege “facts sufficient to show probable cause that a crime has been or is being committed” and “particularly describes a person, place or means of conveyance to be searched and things to be seized.” K.S.A.2011 Supp. 22–2502(a). Therefore,
“ ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, ... including the “veracity” and “basis of knowledge” of any person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in particular place.’ [Citation omitted.]” State v. Fisher, 283 Kan. 272, 300, 154 P.3d 455 (2007).
When the affidavit supporting an application for a search warrant is challenged, this court applies a deferential standard that asks not whether probable cause existed as a matter of law but “ ‘whether the affidavit provided a substantial basis for the magistrate's determination that there is a fair probability that evidence will be found in the place to be searched.’ “ State v. Adams, 294 Kan. 171, 180, 273 P.3d 718 (2012). However, because of the undisputed nature of an affidavit's contents, this court “ ‘may perform its own evaluation of the affidavit's sufficiency under this deferential standard.’ [Citation omitted.]” 294 Kan. at 180. That said, this determination “must be based upon whether the four comers of the affidavit support probable cause for issuance of the search warrant.” State v. Bowles, 28 Kan.App.2d 488, 492, 18 P.3d 250 (2001).
Manns challenges only the overall determination of probable cause and not the specificity of the place to be searched, items to be seized, or crimes being investigated. As previously explained, the affidavit supporting the search warrant laid out the following facts concerning the activities at the residence on East 22nd Street North:
• The CI informed Officer Hornberger that an African–American man was selling marijuana out of the home.
• Officer Homberger arranged a controlled buy with the CI.
• The CI and transport vehicle were searched prior to the controlled buy, and no contraband or money was found.
• Officer Homberger provided the CI with money, followed the CI to the buy, and watched the CI approach and enter the house.
• After a short time, Officer Homberger watched the CI leave the house and followed the CI back to the police station.
• The CI interacted with no one else and never left law enforcement's sight except when entering the home.
• The CI provided Officer Homberger with two baggies of a green substance that tested positive for marijuana.
• The CI informed Officer Homberger that the African–American man at the residence said “to return to the residence if more Marijuana was needed.”
• The CI observed surveillance cameras outside the house.
• The CI and transport vehicle were once again searched, and no contraband or money was found.
As a preliminary matter, the State contends that Manns failed to highlight what specific portions of the affidavit he challenges as insufficient or false. This representation is not entirely accurate. Both before the district court and on appeal, Manns argues that the insufficiency in the affidavit is that it fails to establish probable cause; the lack of information concerning the CI is just part of that failure. To put it another way, Manns' argument turns not on a specific falsehood or omission in the affidavit, but rather its general dearth of information. Therefore, the contention that Manns' challenge lacks specificity is without merit.
We turn to the specific issue regarding the CI. When an informant provides a tip to law enforcement that is then relied upon as part of the basis for a search warrant, the probative value of that tip must be analyzed. State v. Hensley, 298 Kan. 422, 431, 313 P.3d 814 (2013). This analysis, which concerns the totality of the circumstances surrounding the tip, considers both the informant's veracity and his or her basis of knowledge. 298 Kan. at 431. However, these two factors are not granted “ ‘independent status.’ “ 298 Kan. at 431. Instead, a deficiency in either the informant's veracity or basis of knowledge “ ‘may be compensated for ... by a strong showing as to the other, or by some other indicia of reliability.’ “ 298 Kan. at 431.
Important in this analysis is whether the information supplied by the informant has been verified as accurate or corroborated in some way. See State v. Hicks, 282 Kan. 599, 615, 147 P.3d 1076 (2006). In fact, corroborating information or investigation may help establish probable cause even when other evidence establishing the informant's reliability and credibility is lacking. See State v. Landis, 37 Kan.App.2d 409, 420, 156 P.3d 675, rev. denied 284 Kan. 949 (2007).
As Manns observes in his brief, the CI involved in this case initially provided only limited information about the house in question, stating that an African–American resident of that home was “keeping and selling Marijuana” there. However, what Manns fails to recognize is that this tip was then corroborated by the CI's controlled buy. In fact, the undisputed contents of the affidavit provide that the CI was searched for contraband prior to the controlled buy, was watched carefully while approaching, entering, and leaving the home, and emerged with two baggies of vegetation that tested positive for marijuana. These facts clearly demonstrate the veracity of the CI's earlier statement. The CI went to the house where marijuana was reportedly being sold by an African–American male and bought marijuana from an African–American male.
Moreover, our Kansas caselaw supports the State's assertion that controlled buys—even a single controlled buy—can establish probable cause sufficient to support a search warrant. When reviewing a decision from this court concerning a search warrant in State v. Jacques, 225 Kan. 38, 42, 587 P.2d 861 (1978), our Kansas Supreme Court explained:
“A protracted or continuous course of drug traffic at a particular location unquestionably would support the determination of probable cause. However, a single isolated drug sale might also have been sufficient to support the determination if such sale had occurred recently, and additional facts had been established to provide some reasonable basis to infer drugs remained on the premises after the sale.”
Our Kansas Supreme Court applied this holding in State v. Probst, 247 Kan. 196, 202–03, 795 P.2d 393 (1990), and determined the affidavit in that case to lack probable cause. There, as part of a drug investigation against a used car salesman, an informant completed a controlled buy from the salesman (the defendant's boss) out of a car parked near the defendant's home. Nine months later, police officers relied on this incident, the defendant's previous conviction for possession of methamphetamine, and the defendant's relationship with her boss to apply for a search warrant of her home. Our Kansas Supreme Court determined that these facts did “not constitute grounds to believe the defendant was involved in a protracted or continuous course of drug trafficking.” 247 Kan. at 203. In contrast, our Supreme Court in State v. Toler, 246 Kan. 269, 275, 787 P.2d 711 (1990), determined that an affidavit “contain[ing] detailed information explaining how the controlled buy was conducted” as well as other incidents concerning one of the other residents of the address searched provided probable cause to issue the search warrant. There, even though “neither defendant nor [other resident] was under active investigation as potential drug dealers,” the officers acted on the information they received by conducting a controlled buy similar to the instant one, and the court determined that the information provided in the affidavit was indeed sufficient. 246 Kan. at 274–75.
Although containing less information than the affidavit in Toler, it is clear that the affidavit in this case demonstrates both that the sale occurred recently and that there was “some reasonable basis to infer drugs remained on the premises.” Jacques, 225 Kan. at 42. According to the affidavit, the controlled buy occurred no more than 72 hours before the officers applied for the warrant. The individual from whom the CI purchased the two baggies of marijuana also told the CI to return for more marijuana if needed. The seller's statement that the CI could obtain more marijuana from the residence clearly allowed for an inference that more drugs remained in the home. As such, the isolated controlled buy by the CI provided enough information to support a probable cause determination.
Obviously, and as observed by the district court, the affidavit in this case—and therefore, the probable cause determination—could have been strengthened by the inclusion of more information. However, the affidavit still provides “ ‘a substantial basis for the magistrate's determination that there is a fair probability that evidence will be found in the place to be searched.’ “ Adams, 294 Kan. at 180. Accordingly, the district court did not err in denying Manns' motion to suppress.
Appeal dismissed.