Opinion
111,384.
06-05-2015
STATE of Kansas, Appellee, v. Dionne M. JACKSON, Appellant.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Rick Kittel, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dionne M. Jackson appeals her convictions for possession of marijuana and possession with the intent to use paraphernalia. She contends that the district court erred by refusing to suppress the confession she gave to police officers on the night of her arrest. However, the totality of the circumstances indicates that Jackson's confession was the product of her free and independent will. Jackson further contends that the application for the warrant to search her home did not provide a basis to establish probable cause. But the affidavit in support of the application supplies a substantial basis to believe that probable cause existed. Thus, we affirm.
Facts
The parties stipulate to the following facts. On August 13, 2011, five officers of the Wichita Police Department executed a search warrant at 4247 East Menlo Street. Prior to arriving at the house, Officer Gabriel Ohmart informed the other officers that the targets of the search were Ray L. Goodwin—a white male—and Jackson—a white female. When the police entered the house, they observed Jackson sliding items under the couch in the living room. They then located Goodwin in the northeast bedroom of the house.
Officer Ohmart searched the bedroom in which Goodwin was found and discovered marijuana blunts, loose marijuana, a set of digital scales on the dresser, and marijuana located in a cigarette tin and a plastic bag. A second officer searched the living room and found a plastic bag containing marijuana, a blue glass bong with marijuana in it, as well as a black box under the couch containing marijuana. A third officer searched the kitchen and found a digital scale and marijuana.
After a fourth officer advised Goodwin of his Miranda warnings, he admitted that he and Jackson lived in the house. He also admitted selling methamphetamine but stated that he personally only used marijuana. Meanwhile, Officer Christopher Homberger arrested Jackson, handcuffed her with her hands behind her back, and placed her in the back seat of a police car. Because the officer felt she was being cooperative, he recuffed her hands in front of her and had her sit in the front seat of the police car. Officer Homberger then read aloud her Miranda warnings from a sheet of paper, and Jackson initialed each bullet point and agreed to talk.
Jackson admitted to Officer Homberger that she lived in the house and regularly smoked marijuana. Jackson also told the officer that the police would find a blue glass bong she used to smoke marijuana, a bag of marijuana in her purse, and some smoked blunts in an ashtray in the bedroom. Likewise, she told Officer Hornberger that the marijuana and scales found in the kitchen of the house most likely belonged to her.
On October 12, 2012, the State charged Jackson with possession of marijuana and possession of paraphernalia with intent to use. On May 3, 2013, Jackson filed a motion to suppress, arguing that the application for search warrant and attached affidavit were insufficient to establish probable cause. In addition, Jackson filed another motion a few days later, requesting that the district court determine whether she knowingly and voluntarily confessed on the night of the arrest.
The district court heard both motions on May 10, 2013. Jackson testified on her own behalf, while Officers Ohmart and Homberger testified for the State. During Jackson's testimony, her counsel introduced two photographs of the house, which show that it was painted light blue and that it generally had dark blue trim with two windows being trimmed or framed in white. The photographs also show that the house had a gray roof. Although there is no street number on the house, one of the four mailboxes located near the street outside the house displays the number “4247.”
Jackson testified that the police arrived at her house around 11:30 p.m. and knocked on the door. When she answered the door, the police arrested her and placed her in handcuffs. According to Jackson, she was subsequently interviewed for 3 hours in a police car. Jackson testified that it was very hot in the police car and she was tired.
Jackson further testified that she suffers from brain aneurisms which affect her memory and temper in addition to making her feel sluggish. Jackson also stated that a few hours before the interview, she had taken blood-pressure medication that “puts her to sleep.” She claimed that she relayed this information to Officer Homberger and asked him to turn on the air conditioning. She also claimed that she was told several times that if she would just admit to the crimes, they would issue her a ticket and let her go. According to Jackson, she initially denied knowing anything about the presence of any drugs in the house but finally confessed so she could “go to jail” and get out of the car.
Next, Officer Ohmart testified regarding the description of the house. He stated that the house was light blue with dark blue trim except for the windows on the north side. According to Officer Ohmart, these windows had white trim. During the course of Officer Ohmart's testimony, the State introduced the application for search warrant used to search the house. It describes the house as:
“The premise commonly known as 4247 East Menlo, being the second structure west of South Terrace on the south side of Menlo facing to the east, located in Wichita, Sedgwick County, Kansas. The residence is a single story, single residence structure that has blue in color siding with white trim, and a gray composite roof. The numbers for the address were identified using the City of Wichita GIS computer database.”
Attached to the search warrant application, was an affidavit prepared by Officer Ohmart giving the details of a confidential informant's (C.I.) purchase of methamphetamine from a man at the house. The affidavit states that within the preceding 72 hours, Officer Ohmart witnessed the C.I. enter the house with money the police had provided him to purchase drugs. While the C.I. was inside the house, a white male removed a plastic bag of methamphetamine, weighed out a portion of the drug on a scale, and gave the drug to the C.I. in exchange for the money. The C.I. also indicated that he saw additional methamphetamine next to the scale.
Officer Ohmart also testified that Jackson's house was the second structure on East Menlo Street. Even though the house did not have numbers on the side, the officer stated that the police verified the address in the search warrant by looking at a “Geo Crime Data Base.” In doing so, they were able to determine that the house's address was 4247 East Menlo Street.
Officer Hornberger testified that after Jackson was arrested, he walked her out to the police car where he interviewed her while other officers searched the house. He observed that she was calm and “pretty cooperative” and noted that she did not appear to be under the influence of any substance. After Officer Homberger saw that Jackson was being cooperative, he placed the handcuffs in front of her and had her sit in the front of the police car to conduct the interview. Shortly after midnight, the office read aloud her Miranda warnings from a sheet of paper, and Jackson initialed each bullet point. Although he could not recall exactly how long the interview lasted, he testified that it took longer than 1 hour but not as much as 3 hours.
Officer Homberger testified that he never made any promises to Jackson but may have advised her that, depending on her criminal history, she might be released with a citation for possession of marijuana. The officer said Jackson hesitated in formulating her answers to a few questions. However, he stated that she never told him that she did not want to talk to him and she never denied involvement in drug activity.
Moreover, Officer Homberger indicated that Jackson never asked for food or drink, requested to use the restroom, asked for an attorney, or invoked her right to remain silent during the interview. Although she told him that she smokes marijuana to relieve headaches caused by aneurysms, the officer testified that Jackson never mentioned that she might have a seizure. Lastly, Officer Homberger testified that he never displayed his weapon, used any force, or made any threats to get Jackson to talk.
The district court ultimately overruled Jackson's motion to suppress and found that the description of the house in the search warrant affidavit was sufficient. In addition, the district court found that the detailed explanation of the controlled drug purchase and the description of the house's interior were sufficient to establish probable cause that drugs remained in the house. Finally, the district court found that Jackson voluntarily confessed to the police.
The case against Jackson proceeded to a bench trial on stipulated facts. After considering the evidence, the district court found Jackson guilty of both counts and sentenced her to serve 18 months' probation along with an underlying prison sentence of 15 months for possession of marijuana. The district court also imposed an underlying sentence of 6 months for possession of paraphernalia and ordered it to run concurrent to the first sentence on the first count. Thereafter, Jackson filed this appeal.
Analysis
Voluntariness of Jackson's Confession
In reviewing a district court's denial of a motion to suppress a confession, we review the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts, however, is reviewed de novo. State v. Gibson, 299 Kan. 207, 215–16, 322 P.3d 389 (2014). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). In determining whether there is substantial evidence in the record to support a district court's decision, we do not reweigh the evidence, assess the credibility of the witnesses, or resolve evidentiary conflicts. State v. Ransom, 288 Kan. 697, 705, 207 P.3d 208 (2009).
Jackson contends that her confession was not knowingly and voluntarily given and, therefore, should be suppressed. When a defendant seeks to suppress a confession, the State has the burden to prove by a preponderance of the evidence that the confession was voluntary. That is, the State must show that the statement was the product of a defendant's free and independent will. 288 Kan. at 705, 207 P.3d 208. In determining if the State has done so, we consider certain nonexclusive factors based on the totality of the circumstances: (1) The defendant's mental condition; (2) the manner and duration of the interrogation; (3) the defendant's ability to communicate with the outside world; (4) the defendant's age, intellect, and background; (5) the officer's fairness in conducing the interrogation; and (6) the defendant's proficiency with the English language. State v. McMullen, 290 Kan. 1, 4, 221 P.3d 92 (2009).
“ ‘[T]hese factors are not to be weighed against one another on a balance scale, with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. See Brady [v. United States], 397 U.S. [742,] 754, [25 L.Ed.2d 747,] 90 S.Ct. [1463 (1970) ]. Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect's will was overborne and the confession was not therefore a free and voluntary act. [Citation omitted.]’ “ State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009) (quoting Green v. Scully, 850 F.2d 894, 902 [2d Cir.1988] ).
Here, Jackson argues that her “aneurysms, headaches, and side effects from medication—combined with the physical condition of the location in which her statement was obtained, rendered her statement involuntary.” Despite her continued assertion that the interview lasted for 3 hours, the evidence regarding the length of the interview was conflicting. After hearing the testimony and weighing the evidence, the district court found that the interview did not last for 3 hours. Moreover, the district court determined that Jackson never told Officer Hornberger about her discomfort or the effect of her medical issues. Accordingly, because there was substantial evidence presented to support these findings, we cannot replace our judgment for that of the district court.
Furthermore, we find that the totality of the circumstances indicate that Jackson gave a voluntary statement to Officer Homberger. At the time of her arrest, Jackson was about 33 years old and had a 10th-grade education. In addition, Jackson's exchange with the prosecution during cross-examination at the suppression hearing reveals that she is proficient with the English language. Moreover, there was no evidence that Jackson asked for an attorney or otherwise attempted to communicate with someone other than Officer Hornberger during the interview.
Although the exact duration of the interview cannot be determined from the record, the district court found it was less than 3 hours while officers searched the house. We do not find this length of time to be excessive under the circumstances presented. See Ransom, 288 Kan. at 706, 207 P.3d 208. Moreover, Officer Homberger admitted he often tells individuals that if they do not have a prior criminal history, they may simply be given a citation for possession of marijuana and then released from custody. His qualified statement cannot be fairly constmed as a promise made to Jackson. See McMullen, 290 Kan. at 6, 221 P.3d 92 (detective's statement that defendant would be allowed to go home after interview and that defendant's statement would be given to district attorney was not a promise of leniency).
Rather, Officer Homberger orally advised Jackson of her rights, and she initialed a Miranda waiver form. According to Officer Homberger's testimony, Jackson appeared to be calm, cooperative, and free from the influence of any mind-altering substance. Although Jackson indicated to the officer that she smoked marijuana to relieve headaches resulting from brain aneurysms, the district court found that she never told Officer Homberger that she was or was about to experience an aneurysm during the interview. See State v. Brooks, No. 104,185, 2011 WL 5143042, at *3 (Kan.App.2011) (unpublished opinion) (“Brooks testified that the Adderall kept him awake and more active. He acknowledged that he was able to ask questions, although he now alleges he did not understand what he was being asked. He did not ask to be allowed to go to sleep. He was not threatened during the interrogation. His answers were coherent, and he was able to provide a chronological recitation of events.”), rev. denied 294 Kan. 944 (2012). Therefore, we conclude that substantial competent evidence supports the conclusion that Jackson's confession was the product of her free and independent will and that the district court appropriately applied the law in this case.
Motion to Suppress Evidence
In reviewing a district court's denial of a motion to suppress, we apply a bifurcated standard. We review the district court's factual findings to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion reached by the district court, however, is reviewed under de novo standard. In reviewing the district court's factual findings, we do not reweigh the evidence or assess the credibility of witnesses. See Gibson, 299 Kan. at 215–16, 322 P.3d 389.
“A search warrant shall command the person directed to execute the same to search the person, place or means of conveyance particularly described in the warrant and to seize the things particularly described in the warrant.” K.S.A. 22–2507. When a party challenges an affidavit in support of an application for search warrant, the appellate court looks to see under the totality of the circumstances if the issuing magistrate had a substantial basis for concluding that probable cause existed. State v. Powell, 299 Kan. 690, 695, 325 P.3d 1162 (2014).
“ ‘This standard is inherently deferential. It does not demand that the reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided a substantial basis for the magistrate's determination that there is a fair probability that evidence will be found in the place to be searched. Because the reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as the issuing magistrate, the reviewing court may perform its own evaluation of the affidavit's sufficiency under this deferential standard.’ “ Powell, 299 Kan. at 695–96, 325 P.3d 1162 (quoting State v. Hicks, 282 Kan. 599, Syl. ¶ 2, 147 P.3d 1076 [2006] ).
Moreover, “[n]o search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.”K.S.A. 22–2511.
Jackson first contends that probable cause was absent because the search warrant affidavit did not explain how the C.I. had come to work for the police nor did it explain why police considered the C.I. to be reliable. The Kansas Supreme Court recently explained that the probative value of information by a confidential informant is determined by reviewing the totality of the circumstances. In doing so, “the informant's veracity and basis of knowledge remain relevant but do not have ‘independent status,’ meaning ‘a deficiency in one may be compensated for ... by a strong showing as to the other, or by some other indicia of reliability.’ “ State v. Hensley, 298 Kan. 422, 431, 313 P.3d 814 (2013) (quoting Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76 L.Ed.2d 527 [1983] ). Moreover, a single drug sale may provide probable cause “if such sale had occurred recently[ ] and additional facts had been established to provide some reasonable basis to infer drugs remained on the premise after the sale.” State v. Jacques, 225 Kan. 38, 42, 587 P.2d 861 (1978).
The search warrant affidavit in this case provided as follows:
“Your Affiant states that within the last seventy-two hours, your Affiant had contact with a confidential informant, herein after referred to as a C.I. The C.I. was strip searched by your Affiant and found to be free of illegal drugs, U.S. currency and contraband. Your Affiant gave the C.I. U.S. currency with which to purchase the methamphetamine from a white male or a white female. Your Affiant photocopied the U.S. currency prior to giving it to the confidential informant.
“Your Affiant and another officer of the Wichita Police Department transported the C.I. to 4247 East Menlo. The vehicle used to transport the C.I. was searched and found to be free of illegal drugs, U.S. currency and contraband. Upon arrival, your Affiant watched the C.I. approach the residence of 4247 East Menlo. Prior to making it to the front door, a white female contacted the C.I. on the front porch. The white female instructed the C.I. to go inside of the residence. Once inside, the C.I. made contact with a white male. The confidential informant gave the U.S. currency to this white male. The white male removed a plastic bag out of his pocket, which contained methamphetamine.
The white male weighed a portion of the methamphetamine and gave it to the C.I. The C.I. also observed additional methamphetamine next to the scale as the white male was weighing the methamphetamine. The C.I. returned to your Affiant's vehicle and provided your Affiant with a small clear Ziploc baggie containing a clear crystal like substance that was presented to the C.I. as methamphetamine.
“Your Affiant, another officer with the Wichita Police Department, and the confidential informant then returned to a predetermined location where your Affiant strip searched the confidential informant and found the C.I. to be free of illegal drugs, U.S. currency and contraband. The vehicle used to transport the C.I. was also searched and found to be free of illegal drugs, U.S. currency and contraband.
“The methamphetamine that was purchased by the C.I. at 4247 East Menlo was then tested by your Affiant with a Sirchie Methamphetamine Field Test Kit in which the clear crystal like substance tested positive for methamphetamine.”
Although the affidavit does not explain why the police believed that the C.I. was reliable, there was sufficient evidence in the affidavit to indicate that the C.I.'s information was credible. Initially, the extensive lengths that Officer Ohmart went to in order to ensure that the methamphetamine had to originate from the house bolster the C.I.'s credibility and reliability. See State v. Jones, 179 N.J. 377, 392, 846 A.2d 569 (2004) (Although confidential informant who supplied the tip was of unknown reliability, police officer's affidavit provided basis for probable cause where police conducted controlled purchases at a single-family home and performed background checks on individuals identified by the informant, which revealed prior drug-related convictions.). Likewise, Officer Ohmart personally observed the C.I. enter Jackson's home with the money and exit with the methamphetamine. A magistrate may “ ‘draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant.’ “ State v. Fisher, 283 Kan. 272, 307, 154 P.3d 455 (2007) (quoting Gates, 462 U.S. at 240 ).
The issuing judge could have reasonably inferred from Officer Ohmart's observations—independent of the C.I.'s credibility—that drugs were purchased in the house. Moreover, the affidavit was prepared within the 72 hours of the purchase, which is understandable since Officer Ohmart would not want to pinpoint the exact time of the sale to protect the C.I.'s identity. See State v. Bradley, No. 93,008, 2005 WL 3455759, at *3 (Kan.App.2005) (unpublished opinion). In addition, the C.I. observed that there was additional methamphetamine next to the scale as the seller was weighing the methamphetamine. As this court has previously found, evidence that drugs situated next to a scale fairly implies the sale of drugs. See State v. Udell, 34 Kan.App.2d 163, 167–68, 115 P.3d 176 (2005) ; see State v. Johnson, 33 Kan.App.2d 490, 503, 106 P.3d 65 (2004) ; Grimes v. Com., No. 2388–09–1, 2010 WL 3629540, at *3 (Va.App.2010). In addition, the C.I. encountered a white female at the front door and then purchased drugs from a white male in the house.
Furthermore, the address listed on the affidavit—4247 East Menlo—is the correct address. Although the house appears to have mostly dark blue trim, it is easy to understand why Officer Ohmart described the house as having white trim when, from one angle, it appears that the windows have white trim. Regardless, it cannot be characterized as anything more than a technical irregularity that does not affect a substantial right. See K.S.A. 22–2511. Therefore, applying a deferential standard, we conclude that the search warrant affidavit was sufficiently timely and provided a substantial basis for the issuing judge's determination that there was a fair probability that evidence of criminal activity would be found at the place to be searched.
Affirmed.
ATCHESON, J., concurring in part and dissenting in part.
Even given the relaxed standard against which we review a district court's decision to issue a search warrant, the application presented here could not have been construed as adequate to justify a police invasion of a private residence to search for illegal drugs and paraphernalia. The application established no more than an evanescent connection between the drug trafficker and the house the police searched. Probable cause to search requires far more than wispy association. I, therefore, would find the Sedgwick County District Court erred in denying Defendant Dionne M. Jackson's motion to suppress evidence. So I respectfully dissent from that part of the majority decision affirming the ruling.
The Fourth Amendment to the United States Constitution prohibits government agents from conducting unreasonable searches of citizens and their homes. Florida v. Jardines, 569 U.S. ––––, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (“At the Amendment's ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ “ [quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961) ] ); State v. Dugan, 47 Kan.App.2d 582, 588, 276 P.3d 819 (2012). A warrantless search of a private residence violates the Fourth Amendment, subject to a few limited exceptions that don't apply here. A judicial officer may issue a search warrant only upon probable cause. See Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001). Probable cause for a search warrant requires government agents to present specific facts to a judge that would lead a reasonable person to conclude evidence of a crime may be found in a particular place. Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ( “[P]robable cause to search ... exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.”); Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (search warrant may issue when the supporting affidavit establishes “a fair probability that contraband or evidence of a crime will be found in a particular place”); State v. Hicks, 282 Kan. 599, 611, 147 P.3d 1076 (2006).
When a court reviews a search warrant and supporting application in deciding a defendant's motion to suppress, the reviewing court is not to substitute its assessment of probable cause for that of the judge issuing the warrant. Rather, as the majority notes, the review is more deferential and asks whether the issuing judge had “a substantial basis” for finding probable cause. State v. Powell, 299 Kan. 690, 695, 325 P.3d 1162 (2014). Nonetheless, the legal principles governing how probable cause should be established inform that review.
The application for the warrant must set forth facts sufficient to demonstrate probable cause. Ornelas, 517 U.S. at 696 ; Gates, 462 U.S. at 239. But a government agent's unsupported conclusions or suppositions carry no weight in a warrant request. As the Gates Court stated: “Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” 462 U.S. at 239. The Kansas Supreme Court has been equally direct in holding that “[b]ald conclusions, mere affirmations of belief, or suspicions are not sufficient to support a finding of probable cause.” Hicks, 282 Kan. at 614, 147 P.3d 1076. By the same token, the judge issuing the warrant cannot assume factual circumstances outside those in the application to find probable cause. See Virgin Islands v. John, 654 F.3d 413, 420 (3d Cir.2011); United States v. Falso, 544 F.3d 110, 122 (2d Cir.2008).
The majority opinion sets out everything in the warrant application bearing on probable cause to search Jackson's house.
The parties focus on the reliability of the confidential informant. But that's mostly a sideshow. The informant made a controlled buy of methamphetamine from a man in the house. Using a typical protocol for those transactions, the law enforcement officers searched the informant and found no illegal drugs, gave the informant buy money, and watched from a distance as the informant entered the house. A woman met the informant on the porch and sent the informant inside. A few minutes later, while still under surveillance, the informant left the house and returned to the officers. They again searched the informant who then had some methamphetamine but none of the buy money. The obvious and wholly proper conclusion to be drawn from those facts must be that the informant got the methamphetamine inside the house.
The informant told the officers he bought the methamphetamine from a white male who had more and used scales for weighing it. Given the other circumstances, there is no reason to doubt those representations. The informant bought the methamphetamine from someone. We also know from the application that the controlled buy took place sometime during the 72 hours before Wichita Police Officer Gabriel Ohmart went to the district court to get the search warrant for the house.
But the application fails to establish anything close to probable cause to believe illegal drugs or paraphernalia might be found in the house by the time it was presented to the district court judge. See State v. Jacques, 225 Kan. 38, 42, 587 P.2d 861 (1978) (one recent drug sale may support probable cause if “additional facts ... provide some reasonable basis to infer drugs remained on the premises after the sale”). The application falters because of what it doesn't say and cannot establish.
First is the time element. The oblique statement as to when the controlled buy happened required the judge issuing the warrant to presume the outer range of the 72 hours. Nothing permits an inference the transaction happened only 12 or 24 hours earlier. So we have to treat the information as 3 days old when it came to the district court. That Officer Ohmart fuzzed the precise time to protect the identity of the informant doesn't allow the courts to simply pick randomly some period less than 72 hours.
Next, the only evidence linking the house to illicit drug use or trafficking is that single controlled buy. The application doesn't recite other controlled buys were made there. The officers conducted no trash pulls that yielded evidence of illegal drugs. They didn't see anyone arrive at the house only to leave a few minutes later, let alone a stream of such brief visits—circumstances experienced officers often cite as indicative of an active drug trade. See, e.g., United States v. Becknell, No. 13–10071–JTM, 2013 WL 3820018, at *3 (D.Kan.2013) (unpublished opinion); Sweeney v. Gansheimer, No. 1:09CV2377, 2010 WL 4955706, at *1 (N.D.Ohio 2010) (unpublished opinion). The informant didn't report seeing evidence of a methamphetamine manufacturing operation or such a large quantity of illegal drugs that the seller could not easily carry his merchandise around with him. The application tenders no representation by other persons, either named or anonymous, that Jackson's house was notorious as a place to get illegal drugs. In short, nothing suggests the continuing presence of illegal drugs there.
Moreover, nothing in the application for the search warrant ties the drug seller to the house on any continuing basis. The informant doesn't say he knew the seller to own the house, to live there, or even to be a frequent guest of the actual residents. Nor does the application identify the seller, let alone tie him to the house in some other way.
Conspicuously missing from the application is an explanation of why the officers chose to conduct a controlled buy at Jackson's house. We might suppose this wasn't some kind of random drug operation in which the informant was simply going up and down the street trying to buy methamphetamine from anyone answering his or her door. But we have no idea how the house was targeted. For all the application shows (or doesn't show), the informant may have contacted a familiar drug seller who told the informant to meet him at the particular house because he would be visiting there for a few hours. That would not be enough to get a search warrant 3 days later. Plainly, the seller was not at the house alone—a woman met the informant on the porch. Had the seller been the only person there, that would have been circumstantial evidence, however pallid, that he had a possessory interest in the place or at least permission from the occupants to be there unaccompanied—a license unlikely to be granted an infrequent visitor.
The application, then, provides no facts even suggesting any continuing connection between the drug seller and the house.
Taking account of all of the information, the application not only fails to establish probable cause to believe illegal drugs or evidence of drug trafficking would be found at the house 3 days after the controlled buy, it isn't even in the general vicinity of probable cause. The district court judge should not have issued a search warrant to Officer Ohmart based on the application. And the district court reviewing the warrant in conjunction with the motion to suppress erred in finding so much as “a substantial basis” for issuing the warrant. In turn, we should reverse the district court and remand with directions to grant the motion to suppress the evidence seized from Jackson's house.
The State has not argued the good-faith exception to the exclusionary rule as an alternative ground to prevent suppression of the evidence. United States v. Leon, 468 U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (evidence generally should not be suppressed if a law enforcement officer relies in good faith on a judicially approved search warrant); State v. Daniel, 291 Kan. 490, 492, 242 P.3d 1186 (2010), cert. denied ––– U.S. ––––, 131 S.Ct. 2114, 179 L.Ed.2d 908 (2011). So we do not consider it. See State v. Brown, 272 Kan. 843, Syl. ¶ 1, 35 P.3d 910 (2001).
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As to Jackson's motion to suppress the statements she made to the law enforcement officers during and immediately following the execution of the search warrant, I agree with my colleagues the district court properly denied relief based on the voluntariness of those admissions. And I, therefore, concur in that much of the majority's opinion. Jackson has not argued the statements should have been suppressed as the product of an illegal search and seizure. See Wong Sun v. United States, 371 U.S. 471, 485–86, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ; United States v. Shetler, 665 F.3d 1150, 1157 (9th Cir.2011).