Opinion
No. 106,558.
11-30-2012
STATE of Kansas, Appellee, v. Jeremiah TUSH, Appellant.
Catherine A. Zigtema, of Maughan & Maughan, LC, of Lenexa, for appellant. Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Catherine A. Zigtema, of Maughan & Maughan, LC, of Lenexa, for appellant.
Steven J. Obermeier, assistant district attorney, Andrew J. Dufour, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
ARNOLD–BURGER, J. Jeremiah Tush appeals his convictions for manufacturing methamphetamine, battery on a law enforcement officer, obstruction of legal duty, and possession of a methamphetamine precursor. Specifically, Tush contends that the district court erred when it denied his motion to suppress. Because we find that law enforcement properly gained consent from the hotel management to enter and search Tush's room after check-out time had passed, we affirm the district court.
Factual and Procedural History
Officer Brian Hampton was patrolling the Econo Lodge parking lot in Overland Park, Kansas, when he observed a green Dodge Durango with an improper and expired license tag displayed. The tag was associated with Tush. While continuing with a records check on the Durango, Hampton observed a female exit a hotel room, enter the Durango, and try to start it. As she was exiting the hotel room, Hampton observed that she was speaking with someone inside of the room.
Hampton exited his vehicle and approached the female. As he was speaking with her, she indicated that the Durango belonged to her sister. Hampton informed her that the registration was incorrect, and she acknowledged that it belonged on a different vehicle. Hampton asked for her identification and registration information. She was identified as Amy Crutchfield. Crutchfield informed Hampton that she had been staying at the hotel alone for a couple of days, but she was planning to check out at noon on that day.
A VIN check on the Durango revealed that it was not on file. When Hampton checked Crutchfield's driver's license, it came back that she had an active arrest warrant. Hampton informed Crutchfield that he had observed her speaking to someone as she exited the hotel room and asked her if she was alone in the hotel room. Crutchfield indicated that she was not alone in the hotel room and that her boyfriend was also staying in the hotel room. Crutchfield informed Hampton that her boyfriend's name was Jeremiah Tush and that the purple Saturn, parked next to the Durango, belonged to him.
Hampton asked for consent to search the Durango, and Crutchfield agreed. Hampton also asked for consent to search the hotel room, but Crutchfield indicated that she would first have to speak with Tush. Upon searching the Durango, Hampton found a plastic bag containing flash drives and hard drives. There were electronic games, electronic equipment, and a roll of receipts in the vehicle as well. Hampton associated the items with the capability to make false checks, identification, and false returns for merchandise for cash. Hampton also found a paycheck written out to Tush. The check's fonts did not match, and the ink was running. The paycheck added to Hampton's suspicions that something illegal was afoot. Hampton contacted Detective Byron Pierce to examine the evidence in light of Pierce's experience in the area of check fraud. Hampton arrested Crutchfield on the arrest warrant, and she was placed in a police vehicle. At approximately 11:40 a.m., Hampton and Pierce approached Crutchfield's hotel room door and knocked. There was a significant delay before a male opened the hotel room door. The male opened the door slightly and slipped through the partly opened door. The male attempted to slam the door behind him, but Pierce attempted to keep the door open. When Pierce tried to keep the door open, the male rammed into Pierce with his left shoulder. Hampton grabbed the male, swept him to the ground, and placed him in handcuffs. Hampton patted him down and found a false identification with a fraudulent paycheck. The male was identified as Tush. Tush was advised of his Miranda warnings, and he stated that he did not want to talk and that he wanted a lawyer. See Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890 (1966). However, Tush kept up a continual stream of conversation with Hampton and even indicated that he wanted to make a deal.
After placing Tush in a police vehicle, the officers returned to the hotel room and did a protective sweep of the room looking for any other individuals who might pose a threat to officer safety or who might be destroying evidence. The officers conducted the protective sweep based on Tush's behavior when he exited the hotel room, Tush's initial struggle with the officers, and Crutchfield's initial statement that there had been no one else in the room with her. Upon entering the hotel room, Hampton observed a strong odor of acetone, which in his experience, was a precursor to manufacturing methamphetamine.
Hampton searched the remaining portions of the room to ensure that no other individuals were present. Hampton opened the door to ventilate the room. Then, he went to Crutchfield to ask if she was cooking methamphetamine and she told Hampton to ask Tush. Hampton did so, and Tush admitted that there was a lab in the bathroom.
Ramesh Patel was the hotel manager at the time of the incident. Patel testified that when a guest checks in to the hotel, he or she is issued a keycard in order to access his or her room. The keycard expires at the time of check-out which is at noon. A guest can extend his or her stay before the check-out time expires. Pierce spoke with Patel after 12 p.m., and Patel indicated that the room had expired and that neither Crutchfield nor Tush had access to the room after 12 p.m. Patel also informed Pierce that the room had been registered to Katie Courtney and the identification used to reserve the room had a picture of Crutchfield on it. Patel gave the officers consent to search the room.
Once officers entered the room subsequent to Patel's consent, the illegal nature of the items in the room was immediately apparent. It was clear the occupants were manufacturing methamphetamine.
The State charged Tush with making a false information, identity fraud, manufacturing methamphetamine, battery on a law enforcement officer, obstruction of official duty, and possession of a precursor drug. Tush filed a motion to suppress claiming that the evidence obtained after an illegal warrantless search and seizure should be suppressed as “fruit of the poisonous tree.” The district court denied Tush's motion to suppress. After a bench trial, Tush was found guilty on all counts except making a false information. He was sentenced to a 176–month term of imprisonment.
Tush filed an untimely notice of appeal, but his untimely filing was excused by the district court after making an Ortiz finding.
Analysis
Tush contends that the district court erred when it denied his motion to suppress. First, Tush asserts that the district court failed to make the proper factual findings and conclusions of law to support its ruling which also affects this court's ability to conduct a meaningful review. Tush argues that the police—via Detective Pierce—unlawfully entered the hotel room when he attempted to hold the door open after Tush came out of the hotel room. In addition, Tush contends that the protective sweep conducted after Tush was arrested was unlawful. Tush also argues that there were no exigent circumstances accompanied with probable cause to support a lawful search of the hotel room. As his last argument, Tush asserts that the inevitable discovery doctrine does not apply in his case.
On a motion to suppress evidence, this court reviews the factual findings underlying the district court's suppression decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by a de novo standard. The court does not reweigh the evidence. State v. Walker, 292 Kan. 1, 5, 251 P.3d 618 (2010).
The district court made proper factual findings.
Tush first contends that the district court failed to make the proper factual findings and legal conclusions during its ruling on the motion to suppress. However, according to the record, it appears that the district court did make the proper factual findings and legal conclusions. The district court determined that Tush's arrest for battery on a law enforcement officer was lawful and that Tush's attempt to defend his right to privacy by shutting the hotel room door was not justification for battering a law enforcement officer. Moreover, the district court found that even if Pierce was wrong in attempting to hold the hotel room door open, no evidence was discovered from the illegal behavior which would need to be suppressed. The district court went on to discuss the protective sweep of the room but did not determine whether the sweep constituted lawful action taken by the police. However, the district court found that whether or not the protective sweep was lawful, the hotel room, shortly after Tush's arrest, reverted back into the hotel management's control and Tush's expectation of privacy ended and the hotel gave the police consent to search the room. The district court finally determined that the discovery of the evidence would have been inevitable based on the fact that the hotel management gave the police consent to search the room. Accordingly, we find that the district court did make sufficient findings of fact and conclusions of law to support its ruling and allow this court to conduct a meaningful review.
Warrantless search of a hotel room is unreasonable unless an exception applies. As a general rule, the protection against unreasonable searches and seizures applies to hotel and motel rooms. State v. Gonzalez, 32 Kan.App.2d 590, 593–94, 85 P.3d 711 (2004). There is no question within the appellate briefs or in the record, that the police did not have a search warrant at any time while investigating the room. Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010). If no exception applies, then any evidence found as a result of the unreasonable search should be considered unlawfully seized and should be suppressed by the district court. See State v. Robinson, 293 Kan. 1002, 1013, 270 P.3d 1183 (2012). “When a search is challenged, the State bears the burden of demonstrating that it was lawful. [Citation omitted.]” State v. Henning, 289 Kan. 136, 148, 209 P.3d 711 (2009). With these rules in mind, we will examine each stage of police conduct in this case.
Detective Pierce's attempt to keep the hotel room door open was an unlawful warrantless entry into the room.
Tush asserts that Pierce's attempt to keep the hotel room door open resulted in Pierce's hand crossing the threshold of the door. This resulted in his unlawful entry into the room. As such, any evidence obtained through the unlawful entry must be suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 487–88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
The only possible exception to the warrant requirement that would apply in this case is the probable cause and exigent circumstances exception. In Mascorro v. Billings, 656 F.3d 1198, 1206 (10th Cir.2011), “[a]bsent exigent circumstances, [a home's] threshold may not reasonably be crossed without a warrant.” Under the probable cause and exigent circumstances exception, the officers must have probable cause coupled with exigent circumstances in order to cross the threshold of a private residence without a warrant. State v. Dugan, 47 Kan.App.2d 582, 588, 276 P.3d 819 (2012).
Probable cause exists when law enforcement officers “possess specific facts leading a reasonable person to conclude evidence of a crime may be found in a particular place. [Citations omitted.]” Dugan, 47 Kan.App.2d at 590. In Tush's case, Hampton testified that when they went to knock on the hotel room door they did not have any reason to believe that Tush was doing anything illegal in the room. The only facts available to law enforcement were the improper tags on the vehicles associated with Crutchfield and Tush and the items found in the Durango that could have been used to create fraudulent checks, identifications, and receipts. These specific facts do not appear to be enough to lead a reasonable person to conclude that evidence of a crime may be found in the hotel room. Therefore, the officers did not have probable cause to search the hotel room and Pierce unlawfully entered into the hotel room when his hand crossed the threshold of the door as he attempted to keep it open. In light of an unlawful entry, any evidence obtained as a result of that entry must be suppressed. But there was no evidence obtained from this particular search. Neither Hampton nor Pierce looked inside the room or seized any evidence. Accordingly, there was no evidence to be suppressed based on the unlawful entry.
But Tush argues that this action set off a chain of events that eventually resulted in his arrest and search of the room, making all evidence recovered from the room fruit of the poisonous tree. See Wong Sun, 371 U.S. at 487–88. But for the officer's unlawful entry, Tush would not have tried to prevent the entry. If he had not tried to prevent the entry, he would not have been arrested for battery. If he had not been arrested for battery, officers would not have conducted a protective sweep, resulting in the detection of the odor of acetone. If he had not been arrested and no acetone was detected, he could have rented the room and prevented any warrantless entry by police. But this event chain first assumes that Tush had the right to use physical force to prevent an unlawful entry by police. If he had no such right, then the arrest for battery on a law enforcement officer was a crime of his own making, breaking the chain of causation. So we will next examine the rights of an individual when confronted with unlawful police conduct.
An occupant does not have the right to commit battery to prevent an officer from unlawfully entering the occupant's residence when the officer is engaged in performing his or her duty.
Battery on a law enforcement officer is defined by statute as knowingly causing physical contact in a rude, insulting, or angry manner with a police officer while the police officer is engaged in the performance of his or her duties. K.S.A. 21–3413(a)(1)(B). In this case, Tush does not argue that he was defending himself when the contact occurred, only that he was protecting his property from an unlawful search and the contact was only incidental in nature, not intentional. Both Hampton and Pierce testified at the preliminary hearing, the suppression hearing, and the trial that Tush's contact with Pierce was intentional. After a bench trial, the district court found beyond a reasonable doubt that at a time when Pierce was engaged in the performance of his duties, Tush made physical contact with him in a rude, insulting, or angry manner. We do not substitute our judgment for that of the district court. There was sufficient evidence presented to support the district court's finding, so we must assume for purposes of this appeal that Tush's actions were intentional.
Although the law is clear that a person has no right to physically resist an unlawful arrest, Kansas appellate courts have not directly addressed a person's right to physically resist an unlawful search. See K.S.A. 21–3217; State v. Franz, 9 Kan.App.2d 319, 320, 676 P.2d 157 (1984). Kansas statutes do generally prohibit anyone from interfering with or obstructing an officer in the discharge of his or her duties. K.S.A. 21–3808. In ruling on the motion to suppress, the district court found that there was no legal support for Tush's position that he had a right to protect his property against intrusion by physically placing his shoulder into the officer to prevent his unlawful entry. We agree. Although a person can certainly verbally refuse consent to search, one cannot do so physically by unlawfully touching a police officer. As the New Mexico Supreme Court held in State v. Doe, 92 N.M. 100, 102–03, 583 P.2d 464 (1978): “Self-help measures undertaken by a potential defendant who objects to the legality of the search can lead to violence and serious physical injury. The societal interest in the orderly settlement of disputes between citizens and their government outweighs any individual interest in resisting a questionable search. [Citations omitted.] One can reasonably be asked to submit peaceably and to take recourse in his legal remedies.”
See also Robinson v. State, 814 N.E.2d 704, 708 (Ind.App.2004) (“The right to reasonably resist an unlawful entry does not include the right to commit a battery upon a police officer.”).
Because we find that Tush did not have any right to commit a battery against Pierce in order to avoid entry into his hotel room and no evidence was recovered as a result of this entry, we find the causal chain of events relied upon by Tush ends here and we move on to a discussion of the next phase of the officers' activities—the protective sweep.
The protective sweep after Tush's arrest was an unlawful warrantless search of the hotel room.
After Tush's arrest for battery on a law enforcement officer, Hampton placed Tush in a patrol vehicle and returned to the hotel room to conduct a protective sweep of the room. At this point, the officers needed a warrant to enter the hotel room unless they had developed probable cause coupled with exigent circumstances or they could justify the search as a search incident to an arrest.
With regard to the probable cause coupled with exigent circumstances exception to the warrant requirement, as stated above, at the time they knocked on the door, Hampton did not believe that anything illegal was occurring within the hotel room. The only new factor after Tush's arrest was the way Tush exited the room while quickly closing the door behind him. The State does not argue that these additional facts gave police probable cause coupled with exigent circumstances to search the room. Instead, the State's argument, as well as the officers' testimony, rests on the conclusion that this was a lawful “protective sweep” incident to an arrest. Therefore, we will address the law regarding protective sweeps and its application to the facts here.
Under K.S.A. 22–2501, where there has been a lawful arrest, a law enforcement officer may reasonably search the person arrested and the surrounding area within such person's immediate presence in order to protect the officer from attack, prevent the person from escaping, or discover the fruits, instrumentalities, or evidence of the crime the defendant was arrested on. See Henning, 289 Kan. at 147–49.
In this case, there was no concern for Tush's possible escape as he was handcuffed and placed in a patrol vehicle immediately after his arrest. In addition, the fruits, instrumentalities, or evidence that the officers would have been allowed to search for were those stemming from Tush's actual cause of arrest, which would be battery on a law enforcement officer. It does not appear that the officers would need to search for any further evidence for the crime of battery on a law enforcement officer. Law enforcement officers are permitted to conduct a protective sweep to ensure their safety while making an in-home arrest. Maryland v. Buie, 494 U.S. 325, 333–34, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). To justify such a warrantless search, “there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. 494 U.S. at 334. The protective sweep is limited to a cursory visual inspection of those places of the premises where a person might be hiding in order to protect the safety of the law enforcement officers or others. 494 U .S. at 327; see State v. Johnson, 253 Kan. 356, 370, 856 P.2d 134 (1993).
After Tush's arrest for battery on a law enforcement officer, Hampton placed Tush in a patrol vehicle and returned to the hotel room to conduct the protective sweep of the room. Thus, the first problem with the State's position is that Tush was not in the immediate vicinity of the room when the search incident to a lawful arrest occurred. He was already secured in a patrol car and the immediate danger to officer's effectuating the arrest had passed. See State v. Saylor, No. 95,808, 2007 WL 2239242, at *3 (Kan.App.) (unpublished opinion), rev. denied 285 Kan. 1177 (2007) (protective sweep not justified when defendant arrested in yard). Moreover, the facts do not justify a rational inference that the hotel room harbored anyone posing a danger to law enforcement. This is apparent upon close review of the testimony of the two officers involved, Pierce and Hampton.
Pierce, who was not involved in the protective sweep of the room, testified that the sole reason for the sweep was officer safety. He testified that they needed to make sure there was no one else in the room who would pose a danger to officers. But the officers did not see anyone else in the room or hear any commotion or other voices within the room at the time of Tush's arrest. Crutchfield admitted that Tush was in the room but did not indicate that anyone else was in the room. In addition, there was no evidence that Tush or Crutchfield were violent or were carrying weapons. There was no evidence of any inherently dangerous drug activity in the room. At this point, the only thing the occupants were suspected of was making false documents. Thus, the search incident to an arrest exception does not apply.
On the other hand, Hampton, the officer who actually conducted the protective sweep, denied that he searched the room for officer safety purposes. Instead, he testified that he believed officers were going to get a search warrant related to the false documents recovered in the Durango. In the meantime, Hampton believed the sweep was necessary to make sure no one was in the room destroying paper evidence.
Searching a room due to the fear of imminent destruction of evidence is not grounded in the search incident to an arrest exception to the warrant requirement, but is based upon the probable cause coupled with exigent circumstances exception. State v. Hardyway, 264 Kan. 451, 464–65, 958 P.2d 618 (1998). Four requirements are necessary for a permissible warrantless entry when the police fear the imminent destruction of evidence. Such an entry must be “ ‘(1) pursuant to clear evidence of probable cause, (2) available only for serious crimes and in circumstances where the destruction of evidence is likely, (3) limited in scope to the minimum intrusion necessary, and (4) supported by clearly defined indicators of exigency that are not subject to police manipulation or abuse.’ [Citation omitted.]” (Emphasis added.) United States v. Carter, 360 F.3d 1235, 1241–42 (10th Cir.2004). As already outlined, Hampton had very little, if any, evidence to suggest there was anyone in the room, let alone anyone destroying evidence. See State v. Huff, 278 Kan. 214, 221, 92 P.3d 604 (2004) (absence of evidence that someone remained inside also meant the officers had no reason to worry about evidence destruction). Lacking any clearly defined indicators of exigency as required by Buie and Carter, the protective sweep of Tush's hotel room was an unlawful warrantless search and any evidence obtained due to the unlawful search should have been suppressed.
The only evidence that appears to have been obtained from the protective sweep was Hampton's sensory observation of the strong presence of acetone within the hotel room. Hampton's observation led to the presumption that there was a possible methamphetamine lab in the hotel room. Hampton asked Tush if there was a methamphetamine lab in the hotel room, and Tush replied that there was one in the bathroom. Thus, it appears that Hampton's observations and Tush's admission should have been suppressed as evidence unlawfully obtained through a warrantless search. No additional evidence was obtained until law enforcement gained consent from the hotel manager to search the hotel room after Crutchfield's and Tush's check-out time had expired. So we next turn to the validity of that consent.
The hotel manager's consent to search the hotel room constituted a valid exception to the warrant requirement.
Police may enter a person's home without a warrant if they receive voluntary, intelligent, and knowing consent to do so. See State v. Strecker, 230 Kan. 602, 604, 641 P.2d 379 (1982). Generally, when the rental period of a hotel guest's occupancy of a room terminates, the guest loses the exclusive right to privacy in the hotel room. The hotel manager then has the right to enter the room and may consent to a search of the room and the seizure of any items found therein. However, the general rule may be modified if a hotel acquiesces when a guest remains in the room past check-out time or gives the guest permission to check out at a later time. See United States v. Lanier, 636 F.3d 228, 232 (6th Cir.2011).
Patel was the hotel manager at the time of the incident. Patel testified that when a guest checks in to the hotel, he or she is issued a keycard in order to access his or her room. The keycard expires at the time of check-out which is at noon following the last night of the guest's stay at the hotel. If the guest so desires, he or she can extend his or her stay before the check-out time expires. Patel testified that the hotel called before noon to inform Crutchfield and Tush that if they wanted to stay another night they had to pay. No one paid, and control of the room reverted back to the hotel. Pierce spoke with Patel after 12 p.m., and Patel indicated that the room had expired and that neither Crutchfield nor Tush had access to the room after 12 p.m. Patel gave the officers consent to search the room.
Moreover, based on Hampton's initial discussion with Crutchfield, officers were under the impression that Tush and Crutchfield were going to check out of the hotel that day at the normal check-out time.
Based on the above facts, there was substantial competent evidence presented for the district court to conclude that the hotel manager had the right to consent to the search of the hotel room under the circumstances and that he voluntarily did so. Before noon, neither Crutchfield nor Tush requested to extend their stay in the hotel room; the keycard provided to Crutchfield was deactivated after noon had passed; and Crutchfield informed Hampton that she planned on checking out of the hotel room that day at the normal check-out time. But that does not end our inquiry. We must next determine whether the district court's ultimate legal conclusion, that police could reenter the hotel room based upon the hotel manager's consent, was proper.
The attenuation doctrine is applied. In this case, we are presented with a third party consensual search that is preceded by a violation of the Fourth Amendment to the United States Constitution. The exclusionary rule prohibits introduction into evidence of both materials directly obtained from an illegal search or seizure and evidence derived from the unlawful search or seizure. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939). The fruit of the poisonous tree doctrine extends the exclusionary rule to bar evidence indirectly obtained from an unlawful search. State v. McBarron, 224 Kan. 710, 714, 585 P.2d 1041 (1978). But as the United States Supreme Court held in Wong Sun:
“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ [Citation omitted.]” 371 U.S. at 487–88.
See State v. Martin, 285 Kan. 994, 1002–03, 179 P.3d 457 (2008). Accordingly, when a consensual search is preceded by a Fourth Amendment violation, as is the case here, “the government must prove not only [1] the voluntariness of the consent under the totality of the circumstances, [citation omitted,] but the government must also ‘establish [2] a break in the causal connection between the illegality and the evidence thereby obtained.’ [Citations omitted.]” United States v. Melendez–Garcia, 28 F.3d 1046, 1053 (10th Cir.1994); see State v. Schmitter, 23 Kan.App.2d 547, 556, 933 P.2d 762 (1997). This has also been referred to as the attenuation doctrine, because the unlawful conduct of the police and the discovery of the challenged evidence may become so attenuated as to dissipate the taint. See McBarron, 224 Kan. at 714.
Most of the jurisprudence in this area involves the voluntariness of a defendant's consent in light of the illegal search. Cf. State v. Kermoade, 33 Kan.App.2d 573, 582, 105 P.3d 730, rev. denied 219 Kan. 1009 (2005). In such cases we are not only seeking to effectuate the purpose of the exclusionary rule, to dissuade police misconduct by denying the prosecution any advantage that might flow from the misconduct, but we are concerned that the illegal seizure may affect the voluntariness of the defendant's consent. Melendez–Garcia, 28 F.3d at 1053. But in this case it was not the defendant who consented to the search, it was an independent third party—the hotel manager. Therefore, we do not have the same concerns for the illegal search affecting the voluntariness of the consent. Instead, we are faced with an intervening third party consent to search, which we have already held was voluntarily given.
But Melendez–Garcia instructs that the State must still establish that the consent was not obtained by an exploitation of the illegal search. 28 F.3d at 1054–55 (“[C]onsequently[,] the evidence obtained by the purported consent should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality.”); 4 LaFave, Search and Seizure § 8.2(d), p. 76 (4th ed.2004). Professor LaFave explains that the Wong Sun exploitation test can take on importance as an alternative ground for invalidating consent. “If, for example, the prior illegal search provides a significant lead in terms of indicating what other evidence [the police] ought to seek or where they ought to seek it, or if the illegal search provided the means of gaining access to the person from whom the consent was obtained, then a consent obtained by exploitation of that information would constitute a fruit of the earlier illegal search. This would be true, as noted earlier, even if the consenting party were unaware of the earlier search.” 4 LaFave, Search and Seizure § 8.2(d), p. 88.
Such was the case in United States v. Hernandez, 279 F.3d 302 (5th Cir.2002). A police officer illegally searched a bus passenger's suitcase by manipulating its exterior. The passenger did not know this, though, and gave the officer permission to search the suitcase. The Fifth Circuit determined first that the consent was voluntary. 279 F.3d at 307–08. But it did not find “a sufficient break in the causal connection between the initial search of [the] suitcase and the later search to which [the passenger] consented.” 279 F.3d at 308–09. The federal court noted that “the illegal search did make a difference. The district court found that [the police officer] became sufficiently suspicious to engage [the passenger] in conversation only after he had detected a hard, heavy item in the suitcase.” 279 F.3d at 309. Thus the passenger's “subsequent consent to search her suitcase did not cure the Fourth Amendment violation relating from [the police officer's] prior manipulation of the suitcase.” 279 F.3d at 310.
In this case, we believe there was a sufficient independent basis that would have led police to ask for consent to search in this case absent the unlawful protective sweep. Hampton found many suspicious objects in the Durango that could have been used to create fraudulent checks, identifications, and receipts. In addition, when Tush was arrested, he had additional fraudulent items in his pocket. Hampton testified that prior to entering the room to do the protective sweep he believed police would probably seek a warrant to enter the room to look for evidence of a forgery enterprise. Accordingly, it would not be an illogical leap to believe that law enforcement might ask for consent to search the hotel room based solely on the items found in the Durango and on Tush. Once officers entered the room, subsequent to the hotel manager's consent, the unlawful nature of its contents was readily apparent by the overwhelming smell of acetone. So despite the unlawfully obtained knowledge of the smell of acetone in the hotel room, the police did not exploit the illegality by requesting consent from the hotel manager. The evidence recovered is admissible.
The decision of the district court is affirmed.
BUSER, J., dissenting. I concur with my colleagues' legal conclusion that the officers engaged in an illegal search of the motel room prior to receiving knowing and voluntary consent from the hotel manager to re-enter the motel room and seize contraband and evidence. I dissent, however, from the majority's legal conclusion that this valid third party consent was attenuated from the officer's illegal conduct. Because I believe the voluntary consent to search the motel room procured by the officers was a direct consequence and exploitation of the officer's violation of Tush's Fourth Amendment rights, I would apply the exclusionary rule and suppress the contraband and incriminating evidence seized from the room. In United States v. Carson, 793 F.2d 1141, 1154 (10th Cir.1986), the Tenth Circuit held: “The circumstances under which defendant's consent removes the taint of a prior illegal police action is when consent is voluntary under the totality of the circumstances.” Judge Logan concurred but stated he did not “read Wong Sun as holding that the circumstances surrounding the government's illegal acts are irrelevant whenever consent has been given freely.” 793 F.2d at 1158.
In United States v. Melendez–Garcia, 28 F.3d 1046, 1054 (10th Cir.1994), the Tenth Circuit essentially agreed with Judge Logan, holding “[t]he dual requirement of voluntariness and sufficient independence from the prior illegal arrest to purge the taint of that arrest was blurred in our opinion of United States v. Carson.” (Emphasis added.) The Tenth Circuit included a quote from Professor LaFave, which also appears in the Fourth Edition of his treatise:
“While there is a sufficient overlap of the voluntariness and fruits tests that often a proper result may be reached by using either one independently, it is extremely important to understand that (i) the two tests are not identical, and (ii) consequently the evidence obtained by the purported consent should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality.” (Emphasis added.) 28 F.3d at 1054–55; 4 LaFave, Search and Seizure § 8.2(d), p. 76 (4th ed.2004).
On numerous occasions our court has adopted the dual analysis articulated in Melendez–Garcia. In State v. Schmitter, 23 Kan.App.2d 547, 556, 933 P.2d 762 (1997), our court cited Melendez–Garcia for the following statement of law: “[W]hen the consent to search is preceded by a Fourth Amendment violation, the State, in addition to proving the voluntariness of the consent, must also establish a break in the causal connection between the illegality and the evidence thereby obtained. [Citation omitted.]” (Emphasis added.) See State v. Burton, 37 Kan.App.2d 916, Syl. ¶ 4, 159 P.3d 209 (2007); State v. Anguiano, 37 Kan.App.2d 202, 208, 151 P.3d 857 (2007); State v. Kermoade, 33 Kan.App.2d 573, 581, 105 P.3d 730, rev. denied 279 Kan. 1009 (2005); State v. Wilson, 30 Kan.App.2d 100, 106, 39 P.3d 668, rev. denied 273 Kan. 1040 (2002); State v. Grace, 28 Kan.App.2d 452, 460, 17 P.3d 951, rev. denied 271 Kan. 1039 (2001).
My colleagues correctly acknowledge that Melendez–Garcia is relevant precedent in this case. They also highlight United State v. Hernandez, 279 F.3d 302 (5th Cir.2002), as an example of where the illegal conduct of manipulating the exterior of a suitcase (which revealed an object suspected of being drugs) caused the officer to ask the defendant to voluntarily consent to a search of the suitcase. The Fifth Circuit concluded the consent, although voluntary, was obtained in exploitation of the illegal conduct. 279 F.3d at 310. In other words, the illegal conduct precipitated the officer's suspicion which then caused the officer to request the consent to search. As a consequence, the subsequent voluntary consent did not cure or attenuate the Fourth Amendment violation. While the majority and I agree on the relevant law, we disagree on the application of that law to the facts of this case. In my colleagues' view, because “there was a sufficient independent basis that would have led police to ask for consent to search in this case absent the unlawful protective sweep” there was sufficient attenuation to uphold the consensual search. (Emphasis added.) Slip op. at 17. I disagree with this legal conclusion.
First, there is no substantial competent evidence that the officers asked for consent to search the motel room because they suspected it contained evidence of forgery. There was testimony by Officer Hampton that prior to the claimed protective sweep he believed the officers would probably seek a search warrant looking for evidence of forgery. But nowhere in the record is there evidence that the officers sought the hotel manager's consent because they were investigating a forgery. Given this lack of a factual basis, I am unwilling to join my colleagues in concluding “it would not be an illogical leap to believe that law enforcement might ask for consent to search the hotel room based solely on the items found in the Durango and on Tush.” Slip op. at 17. Without supporting evidence that is a leap too far.
On the other hand, my reading of the record convinces me that the officers sought consent because, as a result of the illegal protective sweep, it was immediately apparent that the motel room contained a methamphetamine laboratory. As determined by the district court,
“Immediately upon entering the room, Officer [Hampton] smelled acetone, immediately recognized that smell as being associated with a meth lab, called it to the other officer's attention....
....
“They sealed off the room then, based on that knowledge, and called the drug enforcement agents in and notified management of the motel. I think they even cleared other rooms in the motel as a safety precaution.”
The district court's findings were supported by Officer Hampton who also testified that after the sweep he contacted Tush who advised, “ ‘There's a meth lab in the bathroom.’ “ With this knowledge, Officer Hampton testified the officers “ventilated that room as well as we could and evacuated ... that entire side of the hotel. Then we actually ended up evacuating that entire building of the hotel out of fear for explosive [ sic ].”
At the time of the purported protective sweep, given the highly inflammatory nature of methamphetamine manufacturing, there were many good reasons for the officers to quickly obtain the hotel manager's consent. And while the officers' actions in promptly seeking the hotel manager's consent were laudable—given the dangerous situation which the officers discovered—it also proves that the reason the officers sought consent was not to obtain evidence of forgery. In short, the clear evidence is that the hotel manager's consent was obtained as a direct consequence of the officer's exploitation of the illegal protective sweep. Given these unique circumstances, I would suppress the evidence and contraband because the third party consent was not sufficiently attenuated from the violation of Tush's Fourth Amendment right against illegal searches and seizures.