State v. Hunter

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NOT DESIGNATED FOR PUBLICATION

No. 112,963

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JESSICA J. HUNTER,
Appellee.


MEMORANDUM OPINION

Appeal from Pratt District Court; FRANCIS E. MEISENHEIMER, judge. Opinion filed October 30,
2015. Affirmed.

Kenneth Van Blaricum, county attorney, and Derek Schmidt, attorney general, for appellant.

Tracey T. Beverlin, of Hanson, Jorns & Beverlin, LLC, of Pratt, for appellee.

Before MALONE, C.J., GREEN and POWELL, JJ.

Per Curiam: The State appeals the district court's decision to suppress evidence
that was obtained as a result of a search of Jessica Hunter's purse during the execution of
a search warrant. Hunter was a social guest on the premises subject to the search warrant,
but she was not named in the warrant. The State argues that the district court erred when
it suppressed the evidence because Hunter was more than a casual social guest at the
residence; thus, she was subject to the warrant. For the reasons stated herein, we reject
the State's argument and affirm the district court's judgment.

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Pratt police department Detective Jeff Ward filed an affidavit and application for a
search warrant with the Pratt County District Court on December 16, 2013, at 11:45 a.m.
The search warrant affidavit alleged that Pratt police Corporal Jon McCarley, who had
been a law enforcement officer since 2006 and had experience with drug and narcotic
investigations, had spoken with Justin Lee Reyna on December 15, 2013, at 6:10 p.m.
Reyna told McCarley that he previously had smoked marijuana and methamphetamine
with Bryan Thomas Roberts at a residence on Brendon Court in Pratt, Kansas. Reyna
indicated that Roberts was living at this address, and McCarley knew from prior
experience that Roberts often stayed there. Reyna told McCarley that he had been to
Roberts' house the previous night, December 14 at around 9 p.m., and had observed
Roberts crush up some type of prescription pills, mix them into a solution, and use a
needle to inject the solution into his body. Reyna said that Roberts did not have a
prescription for these pills.

Based on this information, the district court issued a search warrant for the
residence at a residence on Brendon Court in Pratt, Kansas, on December 16, 2013, at
11:58 a.m. The warrant authorized police to search for "[c]ontrolled dangerous
substances to include but not be limited to unlawfully obtained or possession prescription
only medications; Drug paraphernalia used to inject, inhale, ingest, or otherwise
introduce illegal drugs into the human body." The police did not execute the search
warrant that day.

On December 17, 2013, around 7:50 a.m., Pratt police officer Mike McAbee was
dispatched to the residence on Brendon Court for a report of a pharmaceutical theft.
When he arrived, he spoke with Kathy Saloga who was living at the residence with
Roberts and Joann Pearce. Saloga showed him what prescription medications she was
missing, but she did not name anyone she considered as a suspect. McAbee took a report,
gave her his business card, and started to leave the residence.

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As McAbee was leaving the residence, he received a call from Sergeant Kent
Wyatt who told McAbee to remain at the residence because officers were en route with a
search warrant for the residence. While McAbee waited for the other officers to arrive, he
continued to speak with Saloga. She told him that Roberts and Hunter were in the
residence in Roberts' room. She guessed that Hunter had spent the night at the residence.

Two officers arrived with the search warrant, and McAbee assisted in executing
the warrant. McAbee did not read the search warrant before the search was conducted. He
also was not briefed before the warrant was executed. McAbee testified that he assisted in
the search warrant "blind" as to the information surrounding the search. The only thing
McAbee knew about the search was that it was related to a drug issue. He also was aware
of past drug issues involving the residence and Roberts. However, he was not aware of
the specific illegal acts that justified the search warrant.

When McAbee reentered the residence, he met Hunter at the front door. Hunter
was holding her purse, and she retrieved identification from her purse and provided it to
McAbee. Hunter told McAbee that she wanted to leave but McAbee told her she could
not leave because she was subject to the search warrant. McAbee searched Hunter's purse
without her consent and found a white substance that tested positive for the presence of
amphetamines and green vegetation that tested positive for marijuana. McAbee also
found a marijuana pipe and a set of digital scales in the purse. Hunter admitted that she
knew the marijuana pipe was in her purse but she was not aware of the methamphetamine
and that someone else must have put it there.

On January 29, 2014, the State charged Hunter with one count of possession of
opiates, opium, or narcotic drugs; one count of possession of hallucinogenic drugs; and
one count of possession of drug paraphernalia. On March 4, 2014, Hunter filed a motion
to suppress the evidence. In the motion, Hunter argued that the search warrant did not
provide justification for the search of her purse and wallet.
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On June 3, 2014, the district court held a joint preliminary hearing and hearing on
the motion to suppress. The judge who presided over the hearing was the same judge who
authorized the search warrant. McAbee and Saloga were the only two witnesses who
testified at the hearing. After the evidence was presented, the State argued that the search
of Hunter's purse was valid under the warrant because she was a visitor at the residence
who was more than a casual, social guest. Hunter argued that McAbee was not authorized
to search her purse based on the warrant due to the lack of any evidence of a relationship
between Hunter and the illegal activities described in the warrant. The district court took
the suppression issue under advisement.

On November 18, 2014, the district court issued a comprehensive memorandum
opinion, including detailed findings of fact and conclusions of law. The district court
ultimately ruled that it did not matter whether Hunter, who was not named in the search
warrant, was more than a casual visitor at the residence because the State had failed to
meet its burden of showing that there was a relationship between Hunter and the illegal
activities described in the warrant. Thus, the district court found that McAbee was not
authorized to search Hunter's purse based on the warrant, and the district court granted
the motion to suppress the evidence. The State timely filed this interlocutory appeal.

On appeal, the State argues that the district court erred when it suppressed the
evidence. Specifically, the State argues that McAbee was authorized to search Hunter's
purse based on the warrant because Hunter was more than a casual social guest at the
residence. The State does not argue that there is any other basis for the search of Hunter's
purse. Hunter argues that her status as a social guest at the residence does not matter
because the State failed to prove a relationship between Hunter and the illegal activities
described in the warrant.

The standard of review of a district court's decision on a motion to suppress
applies a bifurcated standard. The appellate court reviews the district court's factual
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findings to determine whether they are supported by substantial competent evidence. The
ultimate legal conclusion is reviewed using a de novo standard. State v. Reiss, 299 Kan.
291, 296, 326 P.3d 367 (2014). Here, although the district court set forth detailed findings
of fact in its memorandum opinion, none of the factual findings are disputed by the
parties on appeal. When the material facts to the district court's decision on a motion to
suppress evidence are not in dispute, the question of whether to suppress is a question of
law over which an appellate court has unlimited review. State v. Stevenson, 299 Kan. 53,
57, 321 P.3d 754 (2014).

The parties do not challenge the general rule that a social guest on premises
subject to a search warrant who is not named or described in the warrant is not subject to
a search. See State v. Vandiver, 257 Kan. 53, Syl. ¶ 2, 891 P.2d 350 (1995). There are
some exceptions to this general rule, but the only exception being argued by the parties is
the relationship exception to the notice test as articulated in State v. Jackson, 46 Kan.
App. 2d 199, 260 P.3d 1240 (2011). The relationship exception to the notice test allows
police to search the personal effects of a guest on the premises where a search warrant is
being executed if that guest is more than a casual visitor and "if the circumstances
suggest that there is a relationship between that person and the illegal activities described
in the warrant." 46 Kan. App. 2d at 203.

The parties dispute whether the relationship exception applies to the search of
Hunter's purse. The State argues that Hunter was more than a casual visitor at the
residence because she had spent the night with Roberts. But that is only the first part of
the relationship test as articulated in Jackson. As the district court found, it did not matter
whether Hunter was more than a casual visitor because the State had failed to meet its
burden of showing that a relationship existed between Hunter and the illegal activities
described in the warrant. See Jackson, 46 Kan. App. 2d at 203.

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McAbee had not read the warrant application or the warrant, so he certainly could
not have known if there was a relationship between Hunter and the illegal activities
described in the warrant. In any event, as the district court found, there was no evidence
establishing a relationship. The search warrant application was based on Reyna's report to
McCarley that he previously had smoked marijuana and methamphetamine with Roberts
at the residence on Brendon Court. Specifically, Reyna told McCarley that on the evening
of December 14, 2013, Reyna was at the residence and observed Roberts crush up some
type of prescription pills, mix them into a solution, and use a needle to inject the solution
into his body. Reyna told McCarley that Roberts did not have a prescription for these
pills. As the district court found, there was absolutely no evidence connecting Hunter
with the illegal activities described in the application for the search warrant. The district
court found this lack of connection to be especially apparent because it had been more
than 2 days from the time that Reyna had observed Roberts crushing up the prescription
pills to the time that Hunter's purse was searched without her consent.

The district court issued a comprehensive memorandum opinion finding that the
State had failed to meet its burden of establishing a relationship between Hunter and the
illegal activities described in the warrant. After reviewing the record and the briefs
submitted by the parties, we conclude that the district court's findings are supported by
substantial competent evidence, and the district court's ultimate legal conclusion to
suppress the evidence should be affirmed. We further conclude that the district court's
memorandum decision adequately explains the reasons for the decision.

Affirmed under Rule 7.042(b)(3) and (5) (2014 Kan. Ct. R. Annot. 67).