Opinion
No. 109,875.
2013-11-22
STATE of Kansas, Appellant, v. Robert Michael TANG, Appellee.
Appeal from Labette District Court; Robert J, Fleming, Judge. Stephen P. Jones, assistant county attorney, Hillary McKinney, county attorney, and Derek Schmidt, attorney general, for appellant. Curt T. Schneider, of Coffeyville, for appellee.
Appeal from Labette District Court; Robert J, Fleming, Judge.
Stephen P. Jones, assistant county attorney, Hillary McKinney, county attorney, and Derek Schmidt, attorney general, for appellant. Curt T. Schneider, of Coffeyville, for appellee.
Before MALONE, C.J., McANANY and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State of Kansas brings this interlocutory appeal claiming that the district court erred in granting Robert Michael Tang's motion to suppress evidence. For the reasons set forth herein, we conclude that the district court did not err in suppressing the evidence. Thus, we affirm the district court's judgment.
In April 2011, Kansas State Trooper Doug Rule was involved in a traffic stop during which he discovered 25 pounds of marijuana. One of the occupants of the car told Rule that they were on their way to Parsons, Kansas, to see Tang. In addition, one of the car's occupants had Tang's phone number in a cell phone. Rule called Detective Darren Eichinger of the Labette County Sheriff's Department and provided him with the information about Tang.
On May 4, 2011, Eichinger and Deputy Russell McConnell went to Tang's residence to talk to him about the information. When they arrived, Tang was on the porch with two other people. Jason Reinier was walking out of the house, holding a black duffel bag. When Reinier saw McConnell, he dropped the bag and walked away. Eichinger and McConnell walked up to the porch; McConnell was in uniform and Eichinger identified himself as a law enforcement officer. When asked, Tang identified himself and said that he lived there. Eichinger testified at the preliminary hearing that he “[a]sked [Tang] if we could go inside and talk. He walked in front of me, opened the front door. I stood just inside the front door.” When asked more specifically how he got inside Tang's home, Eichinger stated that Tang opened the door and walked in and Eichinger “walked in behind him.” Eichinger testified that Tang did not give a verbal response to his request that they go inside to talk and, when asked if he was verbally invited into the home, he stated: “ ‘No, he just—we walked up there, he opened the door, walked in, I just stepped in behind him and stood just inside the doorway, and that's where we talked.’ “
Upon entering the house, Eichinger smelled a very strong odor of green marijuana. He asked Tang for consent to search the house, but Tang declined, saying they were in a hurry. Eichinger then asked if he could search the black duffel bag on the porch, but Tang again said no. When Eichinger told Tang that he could smell marijuana in the house, Tang replied that Eichinger was smelling incense. After confirming that McConnell also smelled marijuana, Eichinger had McConnell secure the residence while Eichinger left to complete an application for a search warrant for the house.
In the affidavit accompanying the application for the search warrant, Eichinger cited the following for probable cause: the phone call and information from Rule, the smell of marijuana in Tang's house, and that McConnell and another deputy, with Reinier's consent, had searched Reinier's truck that was parked at Tang's residence and found a firearm and $1,840. Regarding the entry into Tang's house, the affidavit stated: “I asked Tang if he lived there to which he stated that he did, Tang then opened the front door and upon entering the house I detected a strong odor of green marijuana.”
Eichinger received and executed the search warrant and found approximately 58 pounds of marijuana in Tang's house, as well as a large amount of cash, and 2 pounds of marijuana in the black duffel bag on the porch. On May 5, 2011, the State charged Tang with one count of possession of marijuana with the intent to distribute, one count of possession of marijuana with no tax stamp, and one count of using or possessing with intent to use drug paraphernalia.
On December 12, 2011, Tang filed a motion to suppress evidence, contending that the evidence against him was obtained as a result of an unlawful entry into his home in violation of his rights under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. In the motion, Tang argued that Eichinger's warrantless entry into his home was impermissible because he did not consent to the entry and there were not exigent circumstances. Tang argued that the subsequent search warrant was based largely upon the strong odor of marijuana in his house, and because the entry into his house was without consent, all evidence seized as a result of the illegal entry into the house must be suppressed.
That same day, Tang filed a motion to challenge the search warrant under Franks v. B1Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), claiming that the affidavit supporting the application for the search warrant was unreliable, that the resulting warrant was void, and that the evidence obtained pursuant to the search warrant should be suppressed. Specifically, Tang asserted that Eichinger's affidavit omitted a number of material facts that impacted the sufficiency of probable cause, including the details of Eichinger's entry into the home.
On February 7, 2012, the State filed a response to Tang's initial motion to suppress the evidence, arguing that the interaction between Tang and Eichinger was consensual and Eichinger did not require express permission to enter Tang's home. The State also argued that the Fourth Amendment was not implicated because Eichinger entered Tang's residence with the intent to talk, not the intent to search. The next day, the State filed a response to Tang's Franks motion and conceded that Eichinger omitted facts from his affidavit, but maintained that the omissions did not prove deliberate falsehood or a reckless disregard for the truth, which Tang needed to show to be successful under Franks. On April 9, 2012, the district court held a hearing and found that it would be appropriate to hear evidence on the Franks motion. The State filed a motion to reconsider, which, after another hearing, the district court denied.
The Franks hearing commenced on December 10, 2012, before the Honorable Jeffry Jack. Judge Jack heard evidence and argument from both parties and took the matter under advisement. However, Judge Jack never issued a ruling on the Franks motion. Instead, Judge Jack determined that his decision on the Franks motion was “inextricably related” to the issue of whether Eichinger lawfully entered Tang's home, which was the subject of the initial motion to suppress filed on December 12, 2011. Counsel informed Judge Jack that the initial motion to suppress was being heard by Judge Robert J. Fleming. By agreement, the parties chose to wait for Judge Fleming's ruling on the initial motion to suppress before Judge Jack ruled on the Franks motion.
On May 2, 2013, Judge Fleming filed a memorandum decision and order on the initial motion to suppress. Although the record is not clear, apparently this motion was submitted to Judge Fleming based upon the preliminary hearing testimony because the judge quoted extensively from the preliminary hearing transcript in rendering his decision. Judge Fleming relied primarily on State v. Poulton, 37 Kan.App.2d 299, 307, 152 P.3d 678 (2007), aff'd in part and rev'd in part286 Kan. 1, 179 P.3d 1145 (2008), in which this court ruled that consent by implication to enter a house is contrary to established law; rather, consent to enter a house must be unequivocal and specific and freely and intelligently given. Based on the preliminary hearing testimony, Judge Fleming found that Tang did not voluntarily consent to Eichinger entering his home. Thus, Judge Fleming granted Tang's motion and suppressed all evidence ultimately seized as a result of the illegal entry. The State timely filed this interlocutory appeal.
In its sole issue on appeal, the State asserts that the district court erred in granting Tang's motion to suppress the evidence obtained as a result of Eichinger's entry into Tang's home. The State argues that Poulton, the case upon which the district court relied, is distinguishable from the instant case because Eichinger entered Tang's residence with the intent to talk, not the intent to search. In the alternative, the State argues that even if Eichinger violated Tang's Fourth Amendment rights, the evidence obtained is admissible under the good-faith exception to the exclusionary rule.
A district court's decision on a motion to suppress is reviewed under a bifurcated standard. The appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. The ultimate legal conclusion is reviewed using a de novo standard. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).
The Fourth Amendment to the United States Constitution guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” Our Supreme Court recently stated that “[t]he Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights prohibit a warrantless and nonconsensual entry into a home absent a recognized exception to the warrant requirement.... [Citations omitted.]” State v. B1Campbell, 297 Kan. 273, 280, 300 P.3d 72 (2013). There is no dispute that when Eichinger initially entered Tang's home, he did not have a warrant, and the only applicable exception allowing the warrantless entry into the home was Tang's alleged consent.
The district court found that Tang did not voluntarily consent to Eichinger entering his home. In reaching this conclusion, the district court relied primarily on this court's decision in Poulton. In that case, law enforcement officers were attempting to locate an individual on a parole violation, and the officers met the defendant on the porch of his residence. Once the officers were on the porch, the defendant went back inside the residence and the officers followed him into the house. Once they were inside the house, the officers observed several firearms, a test tube containing what appeared to be methamphetamine residue, and drug paraphernalia. At this point, the officers applied for a search warrant. The subsequent execution of the search warrant revealed baggies of methamphetamine, drug paraphernalia, and items commonly used in manufacturing methamphetamine. 37 Kan.App.2d at 301–03.
The defendant in Poulton was charged with multiple drug-related crimes, and he moved to suppress the evidence, arguing that the officers did not have consent to enter his home and their observations that supported the application for the search warrant occurred while they were illegally in his house. The district court found that the officers had implied consent to enter the defendant's residence and denied his motion to suppress the evidence. 37 Kan.App.2d at 303–04.
On appeal, this court first noted that “[a]bsent exigency or consent, warrantless entry into the home is impermissible under the Fourth Amendment to the United States Constitution. [Citation omitted.]” 37 Kan.App.2d at 305. Because the State had relied on consent, this court found that it was required to prove by a preponderance of the evidence that the defendant “ ‘Voluntarily, intelligently, and knowingly’ “ consented to law enforcement entering his home. 37 Kan.App.2d at 306. In addition, this court noted that the State was required to show that the defendant's consent must have been “ ‘unequivocal and specific’ and ‘freely and intelligently given.’ “ 37 Kan.App.2d at 306–07.
This court disagreed with the district court's conclusion that the officers had implied consent to enter the home. Specifically, this court stated:
“Consent by implication, however, is contrary to established law. Our Supreme Court has furnished clear guidance concerning voluntary consent.... In order to determine that Poulton had voluntarily consented to the officer's entry into his home, the trial court needed to find that Poulton's consent was unequivocal and freely given. The fact that Poulton acquiesced or impliedly consented in the officers' entry does not meet the standard for voluntary consent. Moreover, the State does not discharge its burden to prove voluntary consent to justify the lawfulness of a search ‘by showing no more than the acquiescence to a claim of lawful authority.’ [Citation omitted.]” 37 Kan.App.2d at 307–08.
This court concluded that the evidence ultimately seized as a result of the illegal entry into the home should have been suppressed. 37 Kan.App.2d at 308. Our Supreme Court granted the State's petition for review, and “at oral argument on review the State conceded[ ] that the initial search ... was illegal.” 286 Kan. at 4. The Supreme Court summarily concluded: “We agree and affirm the decision of the Court of Appeals reversing the convictions based on the initial search.” 286 Kan. at 4.
Returning to the case at hand, the district court found the facts in Poulton to be similar to the facts herein. The district court noted that Eichinger testified at the preliminary hearing that while he and Tang were on Tang's porch, Eichinger “[a]sked [Tang] if we could go inside and talk. He walked in front of me, opened the front door. I stood just inside the front door.” When asked more specifically how he got inside Tang's home, Eichinger stated that Tang opened the door and walked in and Eichinger “walked in behind him.” Eichinger testified that Tang did not give a verbal response to his request that they go inside to talk and, when asked if he was verbally invited into the home, stated; “ ‘No, he just, we walked up there, he opened the door, walked in, I just stepped in behind him and stood just inside the doorway, and that's where we talked.’ “ Based on these facts, the district court found that Tang did not voluntarily consent to Eichinger entering his home.
The State argues that Poulton is distinguishable, pointing out that the officers entered the defendant's house in that case to search for the parole violator, while Eichinger entered Tang's house only to talk. The State notes that this court used the words “entry and search” throughout Poulton and asserts that the holding in Poulton is applicable only to warrantless entries made to effectuate a warrantless search.
We find the State's attempt to distinguish Poulton unpersuasive. The Poulton court did not hinge its analysis on the officer's intent to search for the parole violator inside the defendant's home; rather, the court focused on the illegality of the entry. Likewise, here, the ultimate purpose of Eichinger's entry is not the critical consideration; the issue is whether Tang validly consented to Eichinger's entry into the home. We agree with the district court that Tang's opening the door, walking into his home, and failing to prevent Eichinger from following him does not show that Tang unequivocally, specifically, freely, and intelligently consented to Eichinger's entry into his home.
The State cites Florida v. Jardines, 569 U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), as a case “almost directly on point.” In Jardines, after a drug-sniffing dog alerted to narcotics odors at the defendant's front door, a police detective applied for and received a search warrant for the residence. The search revealed marijuana plants, which the defendant moved to suppress on the ground that the dog sniff was an unreasonable search. The trial court granted the motion to suppress, and the Florida Supreme Court ultimately affirmed the trial court's decision. The United States Supreme Court granted certiorari to address the limited question “whether using a drug-sniffing dog on a homeowner's porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment.” 133 S.Ct. at 1413. Ultimately, the Supreme Court found that using “trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.” 133 S.Ct. at 1417–18.
We find it difficult to understand why the State believes that the Supreme Court's decision in Jardines is on point. The State, quoting Jardines, comments that a “human sniff is not a search,” see 133 S.Ct. at 1420, presumably to point out that when Eichinger entered Tang's home, he smelled marijuana but he did not search for it. This would bolster the State's argument that Eichinger did not enter the home to search, but to talk, and his smelling the marijuana—which ultimately led to his obtaining the search warrant—was not a search.
We reject the State's argument that the Fourth Amendment was not implicated here because Eichinger entered Tang's residence with the intent to talk, not the intent to search. Rather, we find that if Eichinger's entry into Tang's residence was unauthorized, then all evidence ultimately seized as a result of the illegal entry must be suppressed even if Eichinger did not enter the residence for the purpose of conducting a search. As the Supreme Court stated in Jardines: “The [Fourth] Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects,' a “search” within the original meaning of the Fourth Amendment' has ‘undoubtedly occurred.’ “ 133 S.Ct. at 1414 (quoting United States v. B1Jones, 565 U.S. –––, –––– n.3, 132 S.Ct. 945, 950 n.3, 181 L.Ed.2d 911 [2012] ); see also Campbell, 297 Kan. at 280 (Fourth Amendment and § 15 of Kansas Constitution Bill of Rights prohibit warrantless and nonconsensual entry into home absent recognized exception to warrant requirement).
Next, the State asserts that Eichinger's entry was valid because he was undertaking a “knock and talk,” a form of investigation in which police officers knock on a door and speak with an occupant for the purpose of gathering evidence. To support the legitimacy of knock and talks, the State cites Kentucky v. King, 563 U.S. ––––, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011). We do not see how King is instructive. The instant case does not involve a challenge to the legality of Eichinger's initial conversation with Tang, nor does it involve an officer knocking on Tang's door.
In summary, the State's attempts to distinguish Poulton are unpersuasive, and the State has not shown how the district court erred in its application of Poulton. The district court's factual finding that Eichinger merely followed Tang into the residence without verbal consent is supported by substantial competent evidence and supports the district court's legal conclusion that Tang did not voluntarily consent to Eichinger entering his home. Therefore, Eichinger's warrantless entry was illegal and violated Tang's rights under the Fourth Amendment.
Finally, the State argues that even if Eichinger violated Tang's Fourth Amendment rights, the evidence subsequently obtained was admissible under the good-faith exception established by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Although the State raised the good-faith exception in response to Tang's Franks motion, the State did not raise this argument in district court in response to Tang's initial motion to suppress ruled upon by Judge Fleming which is the subject of this appeal. Generally, issues not raised before the district court cannot be raised on appeal. State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). There are several exceptions to this general rule, but the State does not assert that any of these exceptions apply, despite the requirement in Supreme Court Rule 6.02(a)(5) (2012 Kan. Ct. R. Annot. 38) that an appellant who wishes to raise an issue for the first time on appeal explain why it should be considered.
In any event, the Leon good-faith exception, which the State attempts to invoke here, generally applies to allow the admission of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid due to lack of probable cause. That is not the situation we have here. The search warrant issued in this case was based largely upon the strong odor of marijuana detected inside Tang's residence after the illegal entry into the home. All evidence ultimately seized as a result of the illegal entry into Tang's residence must be suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Therefore, the district court did not err in granting Tang's motion to suppress the evidence.
Affirmed.