State v. Thatcher

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NOT DESIGNATED FOR PUBLICATION

No. 118,921

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JASON R. THATCHER,
Appellant.


MEMORANDUM OPINION

Appeal from Clay District Court; JOHN F. BOSCH, judge. Opinion filed November 2, 2018.
Affirmed.

Sam S. Kepfield, of Hutchinson, for appellant.

Richard E. James, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., PIERRON and LEBEN, JJ.

PER CURIAM: In this appeal, Jason R. Thatcher contests the constitutionality of a
search of his home which led to the discovery of drugs and related paraphernalia which
led to his convictions for possession of methamphetamine and possession of drug
paraphernalia. He contends the district court should have suppressed the evidence
obtained in the search which formed the bases for these convictions.

Thatcher's problems began when a neighbor, Jacqueline Mossburgh, called the
police to report that Thatcher was discharging a gun at his home in Clay Center.
Thatcher, a convicted felon, lived with two other individuals: Evan Booth, who is also a
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convicted felon, and Thatcher's girlfriend, Melissa Webb, who is not. Officer Harold
Stellner responded and investigated Mossburgh's complaint. He interviewed Mossburgh
and her boyfriend, Christopher Troy, who reported that this is a frequent occurrence.
Stellner also interviewed neighbors Lisa Anderton, Patricia Snyder, and Chuck Loader
who all confirmed that they had heard what they believed to be gunfire coming from
Thatcher's home. They also reported hearing large fireworks-type explosions, some of
which were louder than others. Mossburgh told Stellner that her ex-husband "fires off
homemade pipe bombs" and had been with Thatcher in the past at Thatcher's home. One
neighbor, Mary Ihnen, reported that Thatcher frequently shot off a gun, but she was
afraid to report it because Thatcher's brother is the mayor of Clay Center.

Nine days after the conclusion of the investigation, the police obtained a search
warrant from the local magistrate, who found probable cause to believe the crimes of
felon in possession of a firearm, possession of explosives, and unlawful discharge of a
firearm had been committed. The warrant allowed the police to search, among other
things, in and around the residence and all portions of the property where firearms and
explosive materials could be stored or hidden.

Officer Stellner executed the warrant that same day. In the master bedroom he
found photos and documents indicating that this was the bedroom of Thatcher and Webb.
All of Thatcher's belongings were on one side of the room and all of Webb's belongings
were on the other. On Thatcher's side, the officer found a 36" x 24" x 24" cabinet next to
pictures of Thatcher and his daughter and his daughter's birth certificate. Inside the
cabinet the officer found a glass smoking pipe for methamphetamine and three plastic
baggies with a white residue. The glass pipe later tested positive for methamphetamine.

Thatcher was charged with possession of methamphetamine and possession of
drug paraphernalia. Before trial, Thatcher moved to suppress all evidence gathered during
the search. He argued that the search was unlawful because (1) it exceeded the scope of
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the search authorized by the warrant, (2) the long gun the police were supposed to be
looking for could not have been found in the small bedroom cabinet, and (3) the warrant
was issued based on insufficient probable cause.

The district court denied the suppression motion, and the case went to trial. At trial
Thatcher renewed his objections to the admission of the evidence collected during the
search of his home, and his objections were again overruled. The jury found Thatcher
guilty as charged.

Thatcher appeals. He argues that the district court erred in denying his suppression
motion because (1) there was no probable cause to issue the warrant and (2) the search of
his home exceeded the scope of the search warrant.

The State bears the burden of proving the validity of a search and seizure. State v.
Overman, 301 Kan. 704, 710, 348 P.3d 516 (2015). In our review of these claims we first
review the district court's findings to see if they are supported by substantial competent
evidence. In doing so, we do not reweigh the evidence or reassess the credibility of the
witnesses. We review de novo the district court's ultimate conclusion not to suppress the
evidence obtained in the search. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893
(2016).

The Fourth Amendment to the United States Constitution guarantees "[t]he right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." A search is deemed to be reasonable if an officer
has obtained and properly executed a valid search warrant. A valid search warrant may
only be issued "upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized." U.S. Const.
amend. IV. Section 15 of the Kansas Constitution Bill of Rights provides identical
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protection to the Fourth Amendment. State v. Moralez, 297 Kan. 397, 404, 300 P.3d 1090
(2013).

Affidavit Validity

Thatcher asserts that the information contained in the affidavit was unreliable
because it was based on hearsay. But an affidavit in support of a search warrant may be
based on hearsay so long as the affiant sufficiently alleges the veracity and the basis of
knowledge of the declarant. State v. Hicks, 282 Kan. 599, 614, 147 P.3d 1076 (2006).
Concerns over the veracity and basis of knowledge of a hearsay declarant fall by the
wayside if "'an unquestionably honest citizen comes forward with a report of criminal
activity—which if fabricated would subject him [or her] to criminal liability.' [Citation
omitted.]" 282 Kan. at 614.

Here, the affidavit recounted the observations of Thatcher's neighbors—each
identified by name—regarding the possible crimes of a felon possessing a firearm,
possession of explosives, and the unlawful discharge of a firearm. No information was
obtained by an anonymous informant. There is nothing to suggest that Thatcher's
neighbors were anything other than observant and conscientious citizens doing their civic
duty in reporting apparent criminal activity. Mossburgh told dispatch that her boyfriend,
Christopher Troy, had seen "Jason Thatcher was shooting a gun off." Troy told dispatch
that he saw someone "hanging out a window" at Thatcher's house fire several shots with a
long gun. Statements from other neighbors were equally credible and confirmed Troy's
statement. None was anonymous. Each was identified by name. Had they fabricated the
story of the goings-on at Thatcher's home, they would have subjected themselves to
criminal liability. Together they formed a proper basis for a finding of probable cause.

Nevertheless, Thatcher claims this information from the neighbors was stale by the
time the warrant was issued and executed, nine days after the investigation.
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Information is stale when so much time has elapsed between the statements
forming the basis for the warrant and the officer acting on those statements that there is
no longer "a fair probability that evidence of a crime will be found at a particular place."
State v. Hensley, 298 Kan. 422, 429, 313 P.3d 814 (2013).

In considering whether information is stale, we consider four factors enumerated
in State v. Hemme, 15 Kan. App. 2d 198, 203, 806 P.2d 472 (1991): (1) whether the
criminal activity is continuous; (2) the time between the issuance of the warrant and the
alleged criminal activity relied upon to establish probable cause; (3) the use of present or
past tense verbs in the affidavit supporting the search warrant; and (4) the likelihood the
contraband would be moved from the location of the proposed search.

"The amount of time that must lapse before information regarding a crime
becomes stale is a particularized inquiry that takes into account the facts and
circumstances of each case." Hensley, 298 Kan. 422, Syl. ¶ 2. Thus, when the object of a
search includes items that are unlikely to have been destroyed in the interim, the time
between the information and the search can be longer. See United States v. Riccardi, 405
F.3d 852, 861 (10th Cir. 2005). Firearms fall into this category. Information about the
presence of firearms has been found not to be stale because possessors of firearms tend to
keep them for long periods of time. See United States v. Neal, 528 F.3d 1069, 1074 (8th
Cir. 2008); United States v. Singer, 943 F.2d 758, 763 (7th Cir. 1991); United States v.
Lancaster, 145 Fed. Appx. 508, 513 (6th Cir. 2005) (unpublished opinion). Here, the
period between the investigation and the issuance and execution of the search warrant
was only nine days. We conclude that, under these circumstances, the information about
the prospects of firearms being found in Thatcher's home was not stale.

With respect to the possibility of explosives in the home, discharging some form
of explosives was described in the present tense, apparently indicating that this was a
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periodic and ongoing activity. The likelihood that evidence of this activity would be lost
during the nine days between the police investigation and the execution of the warrant
was small. We conclude that, under the circumstances, the information about the
prospects of bomb-making materials being found at Thatcher's home was not stale.

Because the hearsay statements were reliable and the information provided by the
informants was not stale, there was sufficient evidence in the affidavit to find probable
cause.

Scope of the Search

Thatcher asserts that the officer went beyond the scope of the search warrant when
he searched the small plastic cabinet and when he seized drugs which were not the object
of the search.

If "objectively reasonable idicia present at the time of the search" reveal that an
area could contain the evidence identified in the search warrant, a search is authorized
and the evidence found in such place is lawfully discovered. Patterson, 304 Kan. 272,
Syl. ¶ 3. Here, the warrant authorized a search for "[f]irearms, [p]ipe bombs, and
[m]aterials for constructing pipe bombs." We interpret the scope of a warrant in a
common-sense fashion rather than a hypertechnical fashion. 304 Kan. at 275. Reading
this list in a common-sense manner, the term firearms includes hand guns, rifles, or
shotguns; and the material for constructing pipe bombs includes fuses and gun powder.
Some of these items are small enough to fit in the bedroom cabinet where the drugs and
drug paraphernalia were found. Accordingly, the search of the bedroom cabinet was
within the purview of the warrant.

But Thatcher contends that the warrant authorized a search for guns and bomb-
making materials, not drugs. Nevertheless, as found in State v. Galloway, 232 Kan. 87,
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91, 652 P.2d 673 (1982), items that are illegal in nature but not included in the warrant
may be seized under the plain-view exception to the warrant requirement. In applying the
plain-view exception, we consider whether (1) the officer was lawfully in the area to be
searched, (2) the officer's discovery of the evidence was inadvertent, and (3) the
incriminating character of the evidence was immediately apparent to the officer. 232 Kan.
at 91.

Here, the search of the bedroom cabinet was for firearms and bomb-making
materials. The officer was lawfully in the bedroom as a part of the search of the entire
house as called for in the warrant. The officer's discovery of drugs and drug paraphernalia
was inadvertent. The officer found these items in a cabinet he was searching in an attempt
to find a handgun or bomb-making materials covered by the warrant. Finally, the
incriminating character of these items was immediately apparent to the officer. He
testified that based on his training and experience he immediately recognized their
incriminating nature. Therefore, the plain-view exception applied, and the officer did not
violate the scope of the warrant by seizing these items.

The district court did not err in denying Thatcher's suppression motion.

Affirmed.