State v. Conners

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NOT DESIGNATED FOR PUBLICATION

No. 115,605

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

DARLA CONNERS,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed December 23, 2016.
Affirmed.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellant.

Shannon S. Crane, of Hutchinson, for appellee.

Before POWELL, P.J., PIERRON and HILL, JJ.

Per Curiam: The State brings this interlocutory appeal challenging the district
court's granting of Darla Conners' motion to suppress evidence obtained from the search
of her home. A few days after U.S. Marshals arrested Conners and her roommate, Buhler
Police Chief William Tracy entered her rental home at the request of the landlord without
a search warrant. Using information gathered during that initial entry, Tracy obtained a
warrant and conducted a more thorough search which yielded evidence of marijuana
cultivation. The State subsequently charged Conners with multiple drug crimes. Conners
moved to suppress the evidence, arguing that Tracy's initial entry into her rental house
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violated her constitutional rights. The court agreed, holding that the landlord did not have
either the actual or apparent authority to consent to the search of Conners' rental home,
and granted Conners' motion.

On appeal, the State argues that the district court erred in suppressing the evidence
for three reasons: (1) Conners did not have a reasonable expectation of privacy in the
rental house and, thus, lacked standing to challenge the search; (2) the district court erred
in applying the exclusionary rule to suppress the evidence; and (3) the evidence seized
from Conners' rental home would have inevitably been discovered just a few days later as
the landlord would have lawfully been able to assume possession of the premises. We
disagree and affirm the district court's granting of Conners' motion to suppress.

FACTUAL AND PROCEDURAL BACKGROUND

On January 31, 2014, U.S. Marshals, accompanied by Tracy, arrested Conners and
her roommate, John Galentine, at their rental home in Buhler, Kansas, a small community
located near Hutchinson. The couple was to be held for subsequent extradition to
Pennsylvania.

Within a few days, Lewayne Bartell, the rental house's owner, heard a rumor that
U.S. Marshalls had arrested Conners and Galentine at the rental house, and on February
3, 2014, he went to the house to determine whether anyone still lived there. On arrival,
Bartell approached the rental house's front door and knocked on it. When he did not
receive any response, he walked around the house to the backyard, where he saw a pile of
leaves, bags, and trash. At that moment, he did not know the leaves were marijuana as
Bartell did not open the trash bags or go through them. Although he expected tenants to
keep the backyard cleaner, Bartell did not find the yard's contents unusual or a reason to
call the police.

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Without obtaining permission from either Conners or Galentine, Bartell then
entered the rental house through the front door, which was unlocked. Once inside, Bartell
walked through the house and noticed it was still furnished and did not appear vacant. In
the basement, he discovered what appeared to have been a greenhouse. Bartell found
several plants, which he believed were marijuana, and paper pots where the plants had
been grown. Bartell then exited the house and returned to the backyard. This time, he
opened one of the trash bags and found marijuana. After leaving the rental house, Bartell
phoned Tracy and asked him to come check out the flowers growing in the basement.

When Tracy arrived, he walked around the outside of the rental house. In the
backyard, he found 10 to 15 trash bags against the back of the house. Some of the bags
were open, so he looked inside one and saw marijuana leaves. Tracy then entered the
house and went directly to the basement. There, he found lights hanging from the ceiling,
a ventilation system, pots, and several plants lying on the floor. At that point, Tracy
locked the house and left. Before leaving, Tracy moved one or two of the trash bags
containing marijuana from the backyard and set them inside the back door. He also taped
the doors with evidence tape.

Based on this information, Tracy obtained a search warrant the next day. On the
day after that, he and two drug task force agents conducted a search of the rental house.
They seized 131 stems grown in potting media, two large black plastic bags containing
green leafy vegetation, 1000-watt light bulb boxes, a power vent connected to the
chimney, clonnex rooting compound, calendars with days marked on them, and mailing
address labels showing Galentine resided at the rental house.

The State subsequently charged Conners with cultivation of marijuana and
possession of drug paraphernalia with intent to cultivate marijuana. Conners moved to
suppress the evidence seized from the rental house, arguing Tracy conducted an illegal
search in violation of her constitutional rights. She contended Bartell lacked authority to
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consent to Tracy's warrantless entry into her home and further contended Bartell lacked
authority to enter her home and was acting as a government agent. She also asserted no
probable cause supported the search warrant.

The district court held a suppression hearing at which the State offered the
testimony of Bartell and Tracy. Conners did not present any testimonial evidence but
admitted into evidence documentation of her monthly rent payment history.

Bartell explained he had been a landlord for 20 years and owned 14 properties in
Buhler. He recalled Conners and Galentine began renting the house in June 2013 and
described them as always very timely in paying their monthly rent. Bartell stated he left
the doors unlocked after leaving the rental house and testified that he did not escort Tracy
through the house. Bartell claimed he specifically told Tracy about the trash bags
containing marijuana in the backyard. He also testified he told Tracy that somebody
should come down there and take a look because there was stuff there they probably
needed to see.

Tracy testified he had been in law enforcement for 27 years. He explained that
when executing the arrest warrants for Conners and Galentine, he and a U.S. Marshal
entered the rental house through the front door while two other U.S. Marshals went to the
back of the rental house. Tracy stated the U.S. Marshals did not alert him that bags of
marijuana were in the house's backyard. Tracy further stated that at the time he entered
the house and stood in its kitchen, he did not observe anything odd in the house.

Tracy also testified that Bartell was present during his initial entry into the rental
house. According to Tracy, they entered the house through the front door, using a key to
unlock it. Before arriving at the rental house, Tracy did not suspect any illegal activity,
and the trash bags containing marijuana were not visible from the house's front side.
Tracy claimed Bartell did not tell him marijuana was present at the house, and he
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admitted that although he knew Conners lived at the rental house, he did not obtain
Conners' consent before entering.

At the conclusion of evidence, the State argued suppression of the evidence was
improper because Bartell had authority to consent to Tracy's entry into the rental house
and because the evidence of marijuana cultivation was in plain view. Alternatively, the
State asserted Conners did not have a reasonable expectation of privacy in the house as a
result of her and Galentine's failure to timely pay February rent.

Conversely, Conners maintained she had a reasonable expectation of privacy in
the curtilage adjacent to the rental house, highlighting Tracy's testimony that he was
unable to see any contraband from the public roadway and only observed it on entry to
the backyard. Furthermore, she argued Bartell did not have authority to consent to Tracy's
entry into the backyard or house and that no exigent circumstances existed to otherwise
justify Tracy's warrantless entry.

The district court granted Conners' motion to suppress. In its written order, the
district court made several factual findings:

 Conners was current on rent.
 Bartell went to Conners' rental house after hearing a rumor that she had been
arrested by federal marshals.
 Bartell entered the rental house without any indication Conners had abandoned
it.
 Tracy knew Conners was arrested on January 31, 2014.
 Three days after Conners' arrest, Bartell called Tracy and requested he come
search the rental house.
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 Bartell specifically asked Tracy to come check out flowers growing in the
house's basement.
 Bartell gave Tracy consent to search Conners' rental house.
 Bartell supplied Tracy with a key to the rental house.

Based on its factual findings, the district court found that Bartell, as the landlord,
lacked both actual and apparent authority to consent to a search of the rental house. It
concluded that Tracy had conducted a warrantless search of Conners' home and the State
had failed to demonstrate a valid exception to the warrant requirement.

The State timely appeals.

DID THE DISTRICT COURT ERR IN GRANTING CONNORS' MOTION TO SUPPRESS?

When reviewing a district court's ruling on a motion to suppress, we apply a
bifurcated standard of review. First, without reweighing the evidence, we assess whether
the district court's factual findings are supported by substantial competent evidence.
Second, we examine de novo the district court's ultimate legal conclusions drawn from
those facts. State v. Neighbors, 299 Kan. 234, 240, 328 P.3d 1081 (2014). "The State
bears the burden to demonstrate a challenged search was lawful." State v. Pettay, 299
Kan. 763, 768, 326 P.3d 1039 (2014).

The State's principal argument is that Conners did not have a reasonable
expectation of privacy in the rental house, meaning she lacks standing to challenge a
search of the house. Alternatively, even if Conners has standing to challenge the search,
the State contends the district court erred in applying the exclusionary rule to suppress the
evidence because law enforcement acted in good faith by merely responding to a request
by the landlord and property owner to search the premises. The State also argues that any
evidence uncovered illegally at the time would have inevitably been discovered as the
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landlord and owner would have been lawfully entitled to enter the premises in a few days.
We will examine the State's arguments in order.

1. Did Conners have standing to challenge Tracy's warrantless entry into the rental
house?

The State first argues Conners did not have a reasonable expectation of privacy in
the rental house and raises a question of whether Conners had proper standing to
challenge law enforcement's initial entry into the rental home. A criminal defendant must
have standing to challenge a search or seizure, and the burden is on the defendant to show
an expectation of privacy in the property searched. State v. Talkington, 301 Kan. 453,
476, 345 P.3d 258 (2015).

The Kansas Supreme Court has explained that the courts have used the reasonable
expectations test, as articulated in Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507,
19 L. Ed. 2d 576 (1967) (Harlan, J., concurring), to determine whether a defendant has
standing to challenge a search or seizure. Talkington, 301 Kan. at 461-62. "[A] search . . .
occurs under the Fourth Amendment when: (1) the government obtains information by
physically intruding on a constitutionally protected area, i.e., persons, houses, papers, or
effects, [citation omitted]; or (2) invades '"a subjective expectation of privacy that society
recognizes as reasonable."'" 301 Kan. at 462. "[T]he United States Supreme Court [has
subsequently] clarified that a traditional property rights baseline should be applied to
Fourth Amendment cases as well." 301 Kan. at 462; see Florida v. Jardines, 569 U.S.
___, 133 S. Ct. 1409, 1417, 185 L. Ed. 2d 495 (2013).

As the resident of a dwelling that is akin to a traditional home, a tenant possesses a
reasonable expectation of privacy throughout the interior of a leased single-family house.
See Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)
("[T]he Fourth Amendment has drawn a firm line at the entrance to the house."). Further,
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the area "'immediately surrounding and associated with the home'" is the curtilage and is
considered "'part of the home itself for Fourth Amendment purposes.'" Jardines, 133 S.
Ct. at 1414 (quoting Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L.
Ed. 2d 214 [1984]). "It harbors the intimate activity associated with the sanctity of a
person's home and the privacies of life." State v. Fisher, 283 Kan. 272, Syl. ¶ 1, 154 P.3d
455 (2007).

The State does not contend that Conners, under normal circumstances, did not
have a reasonable expectation of privacy in the rental house and its curtilage. Rather, the
State's argument is that because Conners and Galentine had not paid rent for the month of
February at the time of Tracy's initial entry and were incarcerated, Conners had a
diminished expectation of privacy in the rental house. We disagree.

Contrary to the State's argument, a reasonable person could have concluded based
on the evidence that Conners was current on rent. At the suppression hearing, Bartell
initially testified that Conners and Galentines' lease agreement required them to pay rent
by the first of each month. Bartell then discussed their payment history, which showed
they paid rent between the 5th and 9th of each month. Despite the express language of the
lease agreement, Bartell considered their payments timely. Although Conners and
Galentine had not paid February's rent when Tracy initially entered the rental house on
February 3, they were not yet untimely in paying.

Moreover, there is insufficient evidence to support the proposition that Bartell had
retaken possession of the property. There is no evidence in the record that indicates
Bartell had initiated any eviction proceedings or otherwise demonstrated an intention to
retake possession of the rental property. Also, as Conners' counsel pointed out to the
district court, Kansas' landlord-tenant act only considers a tenancy abandoned once the
tenant has been in default for nonpayment of rent for 10 days and has removed a
substantial portion of his or her belongings. See K.S.A. 58-2565(b). Bartell testified at the
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suppression hearing that the rental house was not vacant and Conners had not been in
default for nonpayment of rent for 10 days at the time Tracy entered the home. Therefore,
substantial competent evidence supports the district court's factual finding that Conners
was still current on rent and had not yet abandoned the property.

Having determined that substantial competent evidence supports a finding that
Conners was a current tenant of the rental house, it becomes clear that she had a
reasonable expectation of privacy in the rental house. See Pennsylvania. v. Strickland,
457 Pa. 631, 637, 326 A.2d 379 (1974) (finding defendant's absence due to arrest and
incarceration is not "a sufficient basis upon which to conclude that the accused has
abandoned any reasonable expectation of privacy in his home"). Thus, Conners had
standing to challenge Tracy's initial entry and search of the rental house.

2. Did an exception to the exclusionary rule allow for admission of the evidence?

For the first time on appeal, the State also contends the district court erred in
applying the exclusionary rule to suppress the evidence seized from Conners' rental
home. Unfortunately, it appears the State's argument is not properly before us because
typically, an issue not raised before the district court cannot be raised on appeal. See
State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). While there are exceptions that
allow for consideration of newly raised issues despite the general rule that they may not
be asserted for the first time on appeal, State v. Phillips, 299 Kan. 479, 493, 325 P.3d
1095 (2014), an appellant who wishes to raise an issue for the first time on appeal must
proactively invoke an exception and explain why the issue is properly before us. State v.
Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015); Kansas Supreme Court Rule
6.02(a)(5) (2015 Kan. Ct. R. Annot. 41). In fact, our Supreme Court has warned that
litigants who fail to comply with Rule 6.02(a)(5) risk having issues deemed waived or
abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). Later, in
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Godfrey, 301 Kan. at 1044, the court noted that "[w]e are now sufficiently post-Williams
that litigants have no excuse for noncompliance with Rule 6.02(a)(5)."

The State failed to comply with Rule 6.02(a)(5). In its appellate brief, the State
acknowledges it failed to raise the argument below that an exception to the exclusionary
rule allows for admission of the evidence seized from Conners' rental home, but it makes
no effort to articulate any exception to the general rule. Further, the State fails to
otherwise explain why this issue is properly before us or why it should be considered for
the first time on appeal. Accordingly, because the State failed to comply with Rule
6.02(a)(5), it has waived or abandoned this argument.

3. Would the evidence seized by Tracy have been inevitably discovered?

As a final point, the State contends law enforcement would have inevitably
discovered the evidence suppressed by the district court. The State argues Conners would
have relinquished any privacy right in the rental house within 1 week of Tracy's initial
entry, at which point the evidence still would have been inside the house, and law
enforcement would have lawfully seized it, presumably by entering with Bartell's
consent.

If the prosecution can establish by a preponderance of the evidence that otherwise
unlawfully obtained evidence ultimately or inevitably would have been discovered by
lawful means, the evidence is admissible under the inevitable discovery doctrine. Nix v.
Williams, 467 U.S. 431, 444-47, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984) (adopting
doctrine in context of Sixth Amendment violation and noting comparable considerations
in applying inevitable discovery to Fourth Amendment violations); State v. Ingram, 279
Kan. 745, 750, 113 P.3d 228 (2005) (doctrine applied to Fourth Amendment violation).
The State has the burden to "demonstrate ultimate admissibility." State v. Stowell, 286
Kan. 163, 166, 182 P.3d 1214 (2008). Importantly, "inevitable discovery involves no
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speculative elements but focuses on demonstrated historical facts capable of ready
verification or impeachment." Nix, 467 U.S. at 444 n.5. "[T]he inevitable discovery
exception does not invite speculation about the possible series of events under which the
evidence may have been discovered, but requires an affirmative showing of a reasonable
probability that the evidence would inevitably be discovered through lawful means
already initiated when the seizure was made." State v. Mollett, No. 97,999, 2008 WL
3852167, at *12 (Kan. App. 2008) (unpublished opinion), rev. denied 287 Kan. 768
(2009).

Conners contends the State failed to meet its burden to establish that the evidence
would have been inevitably discovered, regardless of the illegal search. She highlights
that no evidence showed the seized evidence would have remained in the residence after
her arrest, asserting that she could have had others remove the evidence from the house
after her arrest. Conners also concludes that the State's argument that the police would
have inevitably discovered the evidence through lawful means is a mere supposition.

As already established, substantial competent evidence supports the district court's
factual finding that Conners was current on rent. Thus, a conclusion that Conners had
relinquished any privacy right in the rental house is contrary to the evidence and would
require us to engage in improper reweighing of the evidence. See Neighbors, 299 Kan. at
240. Substantial competent evidence also supports the district court's factual finding that
Bartell told Tracy only that flowers were growing in the basement. Without further
information of illegal activity, any application for a search warrant would have been
denied for lacking probable cause. In light of the district court's factual findings, it
appears the State failed to present evidence to support application of the inevitable
discovery exception. The district court did not err in granting Conners' motion to
suppress.

Affirmed.