IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 89,300
STATE OF KANSAS,
Appellee,
v.
GREGORY C. FISHER,
Appellant.
SYLLABUS BY THE COURT
1. Curtilage is the area surrounding the residence, to which historically the Fourth Amendment protection against unreasonable searches and seizures has been extended. It harbors the intimate activity associated with the sanctity of a person's home and the privacies of life.
2. In cases concerning trash seizures by the State, our appellate courts analyze (1) whether curtilage exists and (2) whether the owner has a reasonable expectation of privacy in the trash.
3. The question of curtilage is a mixed question of fact and law. Appellate courts review the district court's factual findings for substantial competent evidence and review de novo the district court's legal conclusion whether a particular seizure occurred within the curtilage.
4. Under the facts of this case, the trash bag was found within the property's curtilage.
5. Under the facts of this case, the defendant maintained a reasonable expectation of privacy in his trash bag–a subjective expectation that was objectively reasonable.
6. The phrase "open view doctrine" refers to the rule that no search under the Fourth Amendment to the United States Constitution occurs where a law enforcement officer observes incriminating evidence or unlawful activity from a nonintrusive vantage point.
7. Unlike observations made from an open view, the phrase "plain view" deals with the circumstances where an officer has already justifiably intruded into a constitutionally protected area and then observes and removes incriminating evidence. It refers to seizures, not searches, under the Fourth Amendment.
8. We disapprove of any State attempt which (1) begins with law enforcement observing an object in open view from off the premises, (2) continues with a knock and talk procedure for justified entry onto the premises, and (3) then asserts plain view while on the premises as a legal basis to seize the identical object that had been observed earlier. Accordingly, under the facts of this case, the district court and Court of Appeals erred in upholding the seizure of the trash bag.
9. Under the facts of this case, as an alternative basis for holding the seizure of the trash bag was wrongful, law enforcement also exceeded the scope of the lawful intrusion into the curtilage of the property.
10. When an appellate court determines that the district court erred in upholding seizure of certain evidence upon which a search warrant's issuance was based in part, it must determine the validity of the warrant's issuance based upon the remaining, lawfully obtained, evidence.
11. When reviewing a motion to suppress evidence, an appellate court reviews the factual underpinnings of a district court's decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court will not reweigh the evidence. The ultimate determination regarding suppression of evidence is a legal question requiring independent review. However, the specific, narrower question within the district court's general determination regarding suppression, i.e., a magistrate judge's finding of probable cause to issue a search warrant, is reviewed under a different standard. The correct standard of review is more deferential to the magistrate judge–by all reviewing courts, district and appellate. More specifically, the standard is whether evidence provided the magistrate issuing the search warrant with a substantial basis for determining that probable cause existed.
12. In determining whether to issue a search warrant, a magistrate considers the totality of the circumstances presented and makes a practical, common-sense decision whether a crime has been committed and whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.
13. Although the smell of ether alone cannot establish probable cause, it may be considered with other evidence in the totality of the circumstances for determining whether probable cause exists to issue a search warrant.
14. Under the facts of this case, looking at the totality of the circumstances presented to the magistrate judge, the magistrate issuing the search warrant had a substantial basis for concluding that a crime had been or was being committed and that there was a fair probability that contraband or evidence of a crime would be found in the places to be searched. Therefore, even absent evidence of the contents of the trash bag upon which the issuance of the search warrant was based in part, the warrant was valid.
15. A defendant may forfeit his or her right to confrontation and waive any hearsay objections.
16. Multiplicity is the charging of a single offense in several counts of a complaint or information. Whether convictions are multiplicitous is a question of law subject to unlimited review.
17. In considering a double jeopardy issue, the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct, and (2) if so, by statutory definition, are there two offenses or only one?
18. Under the first step of the double jeopardy analysis, an appellate court determines whether convictions arise from the same conduct. In determining whether conduct is unitary, i.e., if it is the same conduct, several factors are considered, including (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.
19. Under the second step of the double jeopardy analysis, an appellate court determines whether, by statutory definition, there are multiple offenses or only one. Because the double jeopardy issue in the instant case arises from convictions for multiple violations of different statutes, the multiple description test is applied. In Kansas, that test is also the same-elements test. The test to determine whether charges in a complaint or information under different statutes are multiplicitous is whether each offense requires proof of an element not necessary to prove the other offense; if so, the charges stemming from a single act are not multiplicitous.
20. Under the facts of this case, defendant's convictions of manufacture of methamphetamine (K.S.A. 65-4159), possession of ephedrine (K.S.A. 65-7006), and possession of drug paraphernalia (K.S.A. 65-4152[a][3]) are not multiplicitous.
21. Under the facts of this case, defendant's sentences for unlawful manufacture of methamphetamine and possession of ephedrine are vacated and the matter is remanded for resentencing consistent with State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005), and State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004).
Review of the judgment of the Court of Appeals in an unpublished decision filed February 11, 2005. Appeal from Pottawatomie district court; TRACY D. KLINGINSMITH, judge. Judgment of the Court of Appeals affirming in part the district court and remanding for resentencing is affirmed. Judgment of the district court is affirmed in part, sentence is vacated, and case is remanded with directions. Opinion filed March 16, 2007.
Michelle A. Davis, assistant appellate defender, argued the cause and was on the brief for appellant.
Sherri L. Schuck, assistant county attorney, argued the cause, and Barry Wilkerson, county attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: Gregory C. Fisher was convicted of unlawful manufacture of methamphetamine, possession of ephedrine with the intent to manufacture methamphetamine, possession of anhydrous ammonia in an unapproved container for the production of methamphetamine, possession of methamphetamine, and possession of paraphernalia for use in the manufacture of methamphetamine. In State v. Fisher, No. 89,300, unpublished opinion filed February 11, 2005, a split Court of Appeals affirmed Fisher's convictions but remanded for resentencing in accordance with State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005), and State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). This court granted Fisher's petition for review; our jurisdiction is under K.S.A. 60-2101(b).
The issues on appeal, and this court's accompanying holdings, are as follows:
1. Did the district court err in failing to suppress evidence obtained pursuant to a search warrant partially based upon the contents of a trash bag seized from Fisher's property? No.
2. Did the district court's admission of hearsay evidence violate Fisher's right to confrontation under the Sixth Amendment to the United States Constitution? No.
3. Are Fisher's convictions for possession of ephedrine and possession of paraphernalia multiplicitous with his conviction for manufacture of methamphetamine? No.
FACTS
On August 20, 2001, Detective Shane Jager of the Pottawatomie County Sheriff's Department received information from fellow deputy Paul Hoyt concerning suspicious activity at 12420 Highway 63, Emmett, in Pottawatomie County. The property is located in a rural area approximately 4 miles north of the town of Emmett, on the west side of Highway 63. There are no other houses in the general vicinity on the west side of the highway. On the east side of the highway, the closest neighbor's house is approximately a quarter of a mile away.
The property is bounded on the east by Highway 63 and by barbed wire fencing on the north, south, and west which separates the property from surrounding pasture. Photographs reveal the house is approximately 25 yards west of the highway and sits on the northeast part of the property. Its front porch and door face south. A large shed (barn) is located 50 to 60 yards straight west of the house's western exterior near the barbed wire fence. A second, smaller shed sits equidistant between the house and the barn, but somewhat north, actually forming part of the north fence.
From Highway 63, a driveway runs from east to west on the south of the house, curving to the north and ending in a turn-around near the center of the area bounded by the three buildings. The only apparent walkway or sidewalk leads directly south from the house's front door to the driveway. According to photographs in the record, several large trees surround the house inside of the driveway.
According to Jager's suppression hearing testimony, Deputy Hoyt told him that a concerned citizen noticed a strong or peculiar odor emanating from trash being burned on the property and also observed numerous cars stopping there for short intervals of time. Hoyt further relayed to Jager that on August 28, 2001, he received information from another concerned citizen that a white female driving a van–that had been seen coming and going from the residence–drove to a shed located on the property, emptied boxes, placed more boxes in the van, and then left.
At approximately 1 a.m. on the day after Hoyt relayed the information about the delivery of boxes, Jager, Sergeant Chris Schmidt, and Deputy Shane Van Meter went to the area to determine if they could observe anything. While standing in a grass field to the west of the property, and approximately 30 yards west of the barn, Jager noticed a strong odor of ether. Based on his special training, coupled with the prior information of cars stopping at the residence, Jager suspected that methamphetamine was being manufactured and sold there.
Later that morning, Jager returned to the area twice more, once with the county attorney. From his parked position near Highway 63 about 50 yards south of Fisher's driveway, and once again off of Fisher's property, Detective Jager saw a burn barrel and a white translucent plastic trash bag near the barn. He then used binoculars to observe that the bag contained yellow containers. Based upon his training and experience, he associated the yellow bottles with the manufacture of methamphetamine, i.e., Heet bottles. Jager then walked to the field north of the property, where he again smelled ether. Jager testified that at that point he "[a]sked [the county attorney] how he felt about the trash bag. He said . . . it was not on curtilage, that I could obtain the trash bag, and I advised him that I would like to try . . . to talk to the residents, see what we could obtain from them, and that's when I went to the door of the residence."
Jager testified that after this discussion with the county attorney he got back in his vehicle and
"I pulled my patrol vehicle in the driveway, went to the front door, knocked on the door several times. [After no answer,] I got back in my vehicle and there's a circle driveway that goes around the back side of the residence there, got in, drove by. When I was driving by the white trash bag I noticed Actifed blister packs, several Heet bottles, and–and that's when I collected that white trash bag.
. . . .
". . . I was circling around to leave the property. I had taken this, if you want to say southwest part of the circle drive and started back around . . . and I could see that there were Heet bottles, Actifed blister packs, and pseudoephedrine."
Jager brought the bag to the sheriff's department for examination. In addition to the Heet bottles and 8 to 10 packs of ephedrine, the bag contained plastic gloves, coffee filters with a pinkish powder residue, and miscellaneous trash, including documents identifying Greg Fisher and Betty Harper.
Based upon the tips and Jager's information observed and obtained at the scene, including the contents of the bag, he applied for a search warrant which was obtained from Magistrate Judge Blaine A. Carter and executed for the house, outbuildings, and vehicles. Inside the doorway of the house, Jager found another white trash bag containing empty blister packs of pseudoephedrine, battery casings, lithium casings, three bottles of Heet, coffee filters, and other miscellaneous trash. He also found a white, cylinder-style grinder containing a pinkish substance on top of the microwave. In addition, he located pipes used to smoke methamphetamine and marijuana, glass jars containing residue, items used to manufacture methamphetamine, methamphetamine, and a cellophane bag containing ephedrine.
Inside the barn west of the house, law enforcement officers found a freezer containing a cooler of anhydrous ammonia. They also found a gas generator, rock salt, acid, coffee filters, a blender, Heet bottles, isopropyl alcohol, vinyl gloves, mason jars, a hypodermic needle, several pieces of hose, Epsom salt, Zip-Lock baggies, empty blister packs of pseudoephedrine, and battery parts to at least 59 "'Energizer L91 AA'" lithium batteries.
Approximately 1 hour after the search warrant was initially executed, Betty Harper arrived at the property. Defendant Fisher and David Holden arrived a few hours later. Fisher's left front pocket contained two baggies and a glass vial containing a powdery substance. All three items tested positive for methamphetamine.
Fisher was charged with unlawful manufacture of a controlled substance, possession of ephedrine with the intent to manufacture a controlled substance, unlawful possession of anhydrous ammonia, possession of methamphetamine, and possession of drug paraphernalia.
Prior to trial, Fisher moved to suppress all evidence seized from the property. After a hearing, the district court denied Fisher's motion.
Detective Jager, Detective Paul Schliffke, KBI Agent William Smith, Jeff Rosell, James Schieferecke, Jr., Betty Harper, and Mendy Roma all testified at the jury trial on behalf of the State. Fisher testified on his own behalf.
Detective Jager testified generally consistent with his suppression hearing testimony.
Among other things, Agent Smith testified about David Holden's statements. According to Smith, Holden told him that Holden stayed at the Fisher residence; that Fisher had three "eight balls" or 8 ounces of methamphetamine with a street value of approximately $750; that Holden and Fisher had used several grams of methamphetamine on August 29, 2001; that Fisher had given Holden a gram of methamphetamine; and that Holden believed he saw Fisher previously cooking methamphetamine. Holden was not present to testify. Nevertheless, the court also admitted Holden's written statement dated August 30, 2001.
Betty Harper testified that she lived at the residence with Fisher, her fiancé. Approximately 1 month before Fisher's arrest, Harper wrote a letter to Fisher asking him to stop the "hobby in the barn." Harper stated that she used methamphetamine she received from Fisher; however, she opined that to her knowledge, Fisher did not "cook" the methamphetamine.
Mendy Roma testified that she dated Fisher prior to his arrest. The day before Fisher's arrest, she went to the residence and observed him manufacturing methamphetamine in the back of his truck. She also testified that she witnessed Fisher manufacturing methamphetamine in the barn on several occasions.
For the defense, Fisher testified that Roma's friends, not he, used his barn to manufacture methamphetamine.
The jury convicted Fisher on all counts. A majority of the Court of Appeals affirmed Fisher's convictions, but remanded for resentencing in accordance with Campbell, 279 Kan. 1, and McAdam, 277 Kan. 136. Among other things, the majority held that the trial court did not err in refusing to suppress the evidence because the trash bag–upon which the search warrant was partially based–was observed in an open field 50 yards from the house and seized while in plain view.
Judge, now Justice, Lee A. Johnson dissented, stating that the encroachment into Fisher's backyard was unlawful and that a neutral magistrate should have made the probable cause determination prior to the trash bag's retrieval. He also expressed concern with the majority's expansive definition of an "open field." Fisher, slip op. at 22-23. (Johnson, J., dissenting.)
ANALYSIS
Issue 1: The district court did not err in failing to suppress evidence obtained pursuant to a search warrant partially based upon the contents of the trash bag seized from Fisher's property.
Fisher has consistently maintained that the State unlawfully seized the white trash bag from his property because it was within his curtilage. Because the warrant was issued based in part upon facts gleaned from this alleged unconstitutional seizure, he claims the evidence seized pursuant to the improper warrant was fruit of the poisonous tree and should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). At oral arguments, the State responded that the bag was outside the curtilage and, if not, it was seized while in Jager's plain view.
When reviewing a motion to suppress evidence, this court reviews the factual underpinnings of a district court's decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. This court will not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent review. State v. Horn, 278 Kan. 24, 30, 91 P.3d 517 (2004).
In rejecting Fisher's challenge, the district court examined the totality of the circumstances to justify the issuance of the magistrate's search warrant. During this examination, the court found that the bag was seized from outside the curtilage. It did not address the State's alternative claim that the plain view exception to warrantless searches applied. The district court stated:
"All right. The test that the Court must use when issuing a search warrant is the totality of the circumstances. You don't isolate individual things. You take all those observations, all that knowledge that law enforcement acquires and together you observe or determine whether there's probable cause. A law enforcement officer doesn't have to prove guilt. This is merely probable cause, suspicion to believe, reasonable suspicion.
"Here we had a report by a concerned citizen of a smell that was a strange smell to be associated with the burning of trash. Officers then went to an open field and observed from that field a trash bag that had bottles in it, yellow, that were consistent with ether Heet bottles, which is a known ingredient of the manufacturing of methamphetamine. And [Jager] smelled an odor consistent with ether, which is also a known substance with the manufacturing of methamphetamine. They then received a report that there was a lot of traffic that would come and go at night, which is consistent with drug trafficking at the residence. This is known to law enforcement. Ultimately, the officers went to the house to inquire. They had a right to be there. They have a right to go to the house and knock and talk to the occupants when they have that kind of information. They weren't trespassing at [that] point; and even if they were, this is not trespassing in the constitutional sense. It's a common law trespass, but it doesn't constitute an invasion of privacy when they went to that residence. The contents of that plastic trash bag, which wasn't protected from rural–this wasn't curtilage as I see it and under these facts. The Heet bottle that [then] became readily apparent, as did [blister packs of pseudoephedrine, after the attempted knock and talk] which are a known precursor for the manufacturing of methamphetamine. They had a right to take the trash, and what they found was further consistent with the process of manufacturing methamphetamine, specifically the coffee filters with the pinkish, powdery residue. These are consistent with items of manufacturing methamphetamine.
". . . [T]he motion to suppress will be denied." (Emphasis added.)
While Fisher objects to the seizure of the bag, he does not dispute the propriety of the methods or locations, on and off the premises, used for obtaining information, i.e., ether odor and apparent yellow containers in the bag, up to and including Jager's knock and talk. He essentially argues that lawfully made observations do not equate to the right to seize. "[W]hile the characterization of an observation as a nonsearch plain view situation settles the lawfulness of the observation itself, it does not determine whether a seizure of the observed object would likewise be lawful." (Emphasis added.) 1 LaFave, Search & Seizure § 2.2(a), p. 450 (4th ed. 2004). See, e.g., State v. Blair, 31 Kan. App. 2d 202, Syl. ¶ 3, 62 P.3d 661 (2002) (officers lawfully on street smelled ether coming from an attached garage but had no probable cause to search the garage and residence where they found evidence of manufacture of methamphetamine).
At the scene, however, and now on appeal, the county attorney concluded the bag lawfully observed by Jager could be seized from Fisher's property because (1) it was trash and (2) it was outside the curtilage. Curtilage is the area surrounding the residence, to which historically the Fourth Amendment protection against unreasonable searches and seizures has been extended. See State v. Basurto, 15 Kan. App. 2d 264, 266, 807 P.2d 162, aff'd 249 Kan. 584, 821 P.2d 327 (1991) (citing United States v. Dunn, 480 U.S. 294, 300, 94 L. Ed. 2d 326, 107 S. Ct. 1134, reh. denied 48 U.S. 1024 [1987]).
California v. Greenwood, 486 U.S. 35, 100 L. Ed. 2d 30, 108 S. Ct. 1625 (1988), is of guidance on the seizure issue. There, the Supreme Court addressed a situation where (1) the trash bag (2) was admittedly outside the curtilage; it determined seizure was proper. Despite the seizure of the bag from outside the curtilage, the Court nevertheless engaged in a reasonable expectation of privacy analysis. 486 U.S. at 39-44. Since Greenwood, lower courts have struggled with exactly how the concept of curtilage fits into the analysis of trash seizures. See e.g., United States v. Redmon, 138 F.3d 1109 (7th Cir.) (en banc), cert. denied 525 U.S. 1066 (1998). In trash cases, this court has not only analyzed whether curtilage exists but also whether the owner has a reasonable expectation of privacy in the trash. See State v. Kimberlin, 267 Kan. 659, 662-66, 984 P.2d 141 (1999).
In Kimberlin, the defendant placed his trash in opaque trash bags. He then put them out for city trash collection by placing them in the location customarily used for trash pickup: 5 to 8 feet from the public street which was 50 to 55 feet in front of his house in El Dorado. A drainage ditch ran between the bags and the street. There was no fence or barrier separating the trash from the street other than the drainage ditch. Defendant mowed the entire area, including the ditch. Similar to the instant case, the police retrieved the bags, discovered contraband and paraphernalia, and used the contents to support a search warrant. The execution of the warrant revealed marijuana and drug paraphernalia which served as evidence to convict. The defendant contended on appeal that the trash bags were unlawfully taken and examined by law enforcement.
As our first reason for upholding the seizure, we began by observing that the curtilage concept was not part of the Greenwood Court's rationale in deciding the issue. Instead, Kimberlin noted: "[T]he Greenwood holding was based upon Greenwood's lack of a reasonable expectation of privacy in his discarded trash. Absent such a reasonable expectation of privacy, there is no violation of the Fourth Amendment. Clearly, under Greenwood, the search of defendant's trash herein was not constitutionally impermissible as claimed." 267 Kan. at 663.
We turned to a second reason for upholding the seizure, rejecting Kimberlin's argument that prior Kansas case law discussing curtilage in other contexts required us to distinguish Greenwood and reach a different result based upon the search and seizure section of the Kansas Constitution Bill of Rights, § 15. 267 Kan. at 664. In responding to his argument, we discussed United States v. Long, 176 F.3d 1304 (10th Cir. 1999), which addressed both the curtilage and the reasonable expectation of privacy arguments. We held:
"As in Long, [1] there was no indication that this was a secluded place or a place used for intimate activities associated with the sanctity of the home, thus, it does not have the basic attributes of curtilage. [2] Whether the trash was inside or outside the curtilage is not determinative in garbage cases. Once defendant placed his trash out for collection adjacent to a public thoroughfare, he defeated any reasonable expectation of privacy in the garbage. Long supports the state's position in this case, as does Greenwood." (Emphasis added.) Kimberlin, 267 Kan. at 666.
To analyze the parties' positions in the instant case, we will therefore examine both curtilage and reasonable expectation of privacy in trash.
Curtilage
The State has the burden of proof to show that a search and seizure was lawful. State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990) (citing Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L. Ed. 2d 290, 98 S. Ct. 2408 [1978]). Because the State alleges the area is not curtilage, it therefore has the burden of proving that point.
However, the standard of review for whether the bag was seized from within the curtilage has not been established in Kansas law. In Kimberlin, 267 Kan. at 666, this court determined that the property did "not have the basic attributes of curtilage." However, we did not state our standard of review; rather, because the relevant facts were not in dispute, we concluded that the general question of whether to suppress the seized evidence was a matter of law with an unlimited scope of review. 267 Kan. at 662.
Other courts are split. Many federal circuit courts of appeals, for example, have held that the determination of curtilage is a question of fact. See, e.g., Long, 176 F.3d at 1308 (curtilage is a factual determination subject to clearly erroneous standard of review);United States v. Reilly, 76 F.3d 1271, 1275 (2d Cir. 1996); United States v. Friend, 50 F.3d 548, 552 (8th Cir. 1995); United States v. Brady, 993 F.2d 177, 178-79 (9th Cir. 1993); United States v. Acosta, 965 F.2d 1248, 1255 (3d Cir. 1992); United States v. Hatch, 931 F.2d 1478, 1480 (11th Cir. 1991). For state courts, see State v. Sutton, 112 N.M. 449, 452, 816 P.2d 518 (1991); State v. Russo, 68 Or. App. 760, 763, 783 P.2d 163 (1984).
The recent trend, however, has been to treat the issue as a mixed question of fact and law. Several courts rely upon the Supreme Court's decision in Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911, 116 S. Ct. 1657 (1996), which held that on appeal, a judge's ultimate determination of Fourth Amendment questions similar to curtilage–reasonable suspicion and probable cause–should be reviewed de novo, while findings of historical fact should be reviewed only for clear error under the federal rules. See United States v. Breza, 308 F.3d 430, 435 (4th Cir. 2002); United States v. Diehl, 276 F.3d 32, 37 (lst Cir. 2002); United States v. Johnson, 256 F.3d 895, 898, 911-13 (9th Cir. 2001); State v. Martwick, 231 Wis. 2d 801, 811-14, 604 N.W.2d 552 (2000); see also United States v. Reilly, 91 F.3d 331, 331 (2d Cir. 1996) (assumed, without deciding, that Ornelas requires appellate court to review the district court's finding of curtilage de novo.) As the First Circuit Court of Appeals stated in Diehl: "As in those inquiries, the question of curtilage requires a court to make a legal judgment about the significance of a collection of facts." 276 F.3d at 37. Accordingly, "[t]here is no conceptual difference between calling an area 'curtilage' and telling an officer he had 'probable cause' or 'reasonable suspicion.'" Johnson, 256 F.3d at 912.
Several of these courts also rely upon their own historical two-step standard of review to constitutional search and seizure inq