Opinion
No. 110,396.
2014-10-24
STATE of Kansas, Appellee, v. Hillary E. RICE, Appellant.
Appeal from Lyon District Court; W. Lee Fowler, Judge.Rick Kittel, of Kansas Appellate Defender Office, for appellant.Jonathon L. Noble, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Rick Kittel, of Kansas Appellate Defender Office, for appellant. Jonathon L. Noble, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
When police are legally invited into a person's home they may seize any items they discover in plain view that they have probable cause to believe are contraband. The incriminating nature of the items seized must be immediately apparent, without any additional manipulation. In this case, police were invited into Hillary Rice's home and once inside observed two Q-tips in an ashtray that they suspected might be drug paraphernalia associated with the use of methamphetamine. Because they could not be certain based solely on their observation, the police officers seized the Q-tips to examine them further, conducted field tests on them at a remote location, and then used the results of the tests to obtain a warrant to further search Rice's home for drugs and drug paraphernalia. Rice moved to suppress the results of the search because the officers lacked probable cause to seize the Q-tips and therefore any evidence obtained as a result of the unlawful seizure must be suppressed. She appeals the district court's denial of her motion. Because we find that the incriminating character of the Q-tips was not immediately apparent without further manipulation of them, the officers lacked legal justification to seize the Q-tips within Rice's home. Accordingly, we reverse the decision of the district court, order all evidence obtained after and as a result of the seizure of the Q-tips suppressed, and remand the case for further proceedings.
Factual and Procedural History
Officer Lisa Sage accompanied two Department for Children and Families (DCF) workers to Hillary Rice's home in order to conduct a home check. An additional officer arrived at Rice's home a little later.
Upon arriving, they knocked on the door and Rice answered. Rice allowed Officer Sage and the DCF workers into her home, and they stepped into the living room. A 2–year–old boy, Rice's son, was also in the home. While the DCF workers were visiting with Rice, Officer Sage described Rice's behavior as “very unusual, fidgety, moving around a lot, making large, large actions and movements with her hands, and she had a cigarette in her hand and she was looking for a lighter and she would look in the same places over and over again.” She also seemed distracted while speaking with the DCF workers, and she would be civil at times and then would turn defensive and angry. During her time as a law enforcement officer, Officer Sage had seen this kind of behavior exhibited by people who were under the influence of methamphetamine.
Officer Sage also saw two clear ashtrays on the coffee table that contained ashes and some cotton-tipped swabs, commonly referred to as Q-tips. According to Officer Sage, Q-tips are often used as a filter when people smoke methamphetamine and are also used to clean out a smoking device. She testified that it is common to see Q-tips around a drug user's home. At a glance, the Q-tips did not appear to be discolored. It was not until they were actually removed from the ashtray and examined that a discoloration was observed. Rice was asked whether she had used the Q-tips in conjunction with methamphetamines, and she replied that she had not.
When asked how long it had been since she had used drugs, Rice responded, “ ‘Awhile.’ “ During the interview, the young child was in the living room with access to the coffee table where the ashtray was located. The Q-tips in the ashtray were seized by law enforcement and field tested at the police station while officers and the DCF workers remained with Rice at her home. They tested positive for methamphetamine. Rice was arrested on suspicion of possession of methamphetamine and aggravated endangering a child, at which point she was taken to the county jail and the child was taken into police protective custody.
While Rice was being transported to the county jail, Officer Sage watched over the house until another officer took over. Officer Sage then returned to the police station to draft a search warrant in order to get permission from the court to search Rice's home. Upon searching the home, law enforcement officers found another ashtray in the kitchen containing more Q-tips with blackened ends, a clear glass pipe—typically used to smoke drugs—found within a bag that had been on the floor of the living room, and several more Q-tips with black residue on them in a trash can in the back bedroom.
Rice was charged with possession of methamphetamine, possession of drug paraphernalia, and aggravated reckless endangerment of a child.
Rice filed a motion to suppress the evidence found in her home, arguing that the search warrant was invalid because there was no probable cause to believe the Q-tips initially found inside the home were drug paraphernalia at the time they were seized and tested.
The district court denied the motion to suppress, finding that the search warrant was valid because (1) the officers gained lawful entry into Rice's home; (2) the officers observed the Q-tips in plain view and, based upon their training, they believed the Q-tips could have been drug paraphernalia; (3) Rice's behavior suggested that she may have been under the influence of drugs; and (4) the Q-tips tested positive for methamphetamine.
A jury found Rice guilty of possession of methamphetamine, possession of drug paraphernalia, and aggravated endangering a child. Rice was sentenced to 16 months' imprisonment.
Rice filed a timely notice of appeal.
Analysis
Rice raises several issues on appeal. Because our decision regarding the lawfulness of the seizure of the Q-tips is wholly dispositive of the appeal, we find it unnecessary to address the remaining issues raised by Rice.
Rice contends that the actions by law enforcement when the Q-tips were seized and tested were unconstitutional because there was no probable cause to justify the seizure of the Q-tips. This illegal search and seizure led to the search warrant and law enforcement's discovery of the remaining Q-tips, the glass pipe, and the methamphetamine residue within the glass pipe. Because of the initial unconstitutional search and seizure, all of the evidence found in Rice's home should have been suppressed.
When, as here, the material facts to a 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. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).
The State bears the burden of proof for a suppression motion. It must prove to the district court the lawfulness of the search and seizure. See State v. Carlton, 297 Kan. 642, 646, 304 P.3d 323 (2013). Any warrantless search is per se unreasonable unless it falls within one of the exceptions to the search warrant requirement recognized in Kansas. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied ––– U.S. ––––, 131 S.Ct. 2114, 179 L.Ed.2d 908 (2011). Evidence obtained in violation of the Fourth Amendment to the United States Constitution is subject to the exclusionary rule, which was created by the United States Supreme Court to deter police misconduct. Davis v. United States, 564 U.S. ––––, 131 S.Ct. 2419, 2426–27, 180 L.Ed.2d 285 (2011). Kansas similarly recognizes the exclusionary rule in criminal proceedings as an appropriate remedy for an unlawful search. See Daniel, 291 Kan. at 496, 242 P.3d 1186.
The State relies heavily on the argument that law enforcement saw the Q-tips in plain view and had probable cause to seize and test them based on the totality of the circumstances, i.e., the visibility of the Q-tips and Rice's abnormal behavior. Both parties rely on the analysis used by the United States Supreme Court in Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), for support. So we begin with a discussion of that case. Arizona v. Hicks
A bullet was fired through the floor of James Hicks' apartment, injuring a man in the apartment below his. Police officers lawfully entered Hicks' apartment on the basis of exigent circumstances in search of the shooter, other victims, and weapons. Once in the apartment officers noticed two sets of very expensive stereo equipment inside that seemed out of place. Suspecting the equipment was stolen, police recorded the serial numbers, moving some of the equipment to do so. The officers telephoned the numbers into the police station, and when they were informed that the equipment was stolen, they obtained a warrant to search the premises. Hicks was subsequently indicted for armed robbery. The trial court suppressed the evidence seized, and the case eventually ended up in the United States Supreme Court.
The Supreme Court found that the officers were lawfully in Hicks' apartment based on exigent circumstances. Since they were lawfully present, the officers were entitled to seize items in plain view under the plain-view exception to the warrant requirement if there was probable cause to believe that the stereo equipment was stolen. 480 U.S. at 326. A mere reasonable suspicion was not sufficient. Although the act of writing down the serial numbers was not a seizure under the Fourth Amendment, moving the stereo equipment into a different position to observe the serial numbers was a search. 480 U.S. at 324–25. Because the officers' suspicions had not reached the level of probable cause, the search was in violation of the Fourth Amendment, and the trial court was correct to suppress the evidence received through the serial numbers. 480 U .S. at 326.
We pause to note that the Supreme Court did state that something less than probable cause may be sufficient to seize items in plain view in the very limited circumstances when” the seizure is minimally intrusive and operational necessities render it the only practicable means of detecting certain types of crime.” 480 U.S. at 327. No such circumstances were present in the Hicks case. Likewise, this limited exception is not argued by either party here.
In Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), the Supreme Court clarified its decision in Hicks by saying not only must the officer be in a place he or she is lawfully entitled to be but two additional conditions must be satisfied. The item must be in plain view, and its incriminating character must be immediately apparent. 496 U.S. at 136. Our Kansas Supreme Court has also followed this analysis. In State v. Neighbors, 299 Kan. 234, 252, 328 P.3d 1081 (2014), the court reiterated that the officer must be lawfully in a position to observe the object, the object must be in plain view, and “the object's incriminating character must be immediately apparent without conducting some further search of the object.” See also State v. Fisher, 283 Kan. 272, 293–94, 154 P.3d 455 (2007) (The plain-view exception “deals with circumstances in which an officer has already justifiably intruded into a constitutionally protected area and then spots and removes incriminating evidence.”). Application of Hicks, Horton, and Neighbors to the facts of this case
The seizure of the Q-tips in this case cannot be upheld under the plain-view exception because their incriminating nature was not apparent without conducting some further search of the Q-tips, i.e ., seizing the Q-tips for further observation and field testing. See Neighbors, 299 Kan. at 252, 328 P.3d 1081 (questioning whether seizure of a Q-tip would be upheld under the plain-view exception, because its incriminating nature was not apparent without conducting some further search of it). According to Officer Sage, at a glance, the Q-tips did not appear to be discolored. It was not until they were actually seized that a discoloration was observed. And it was not until the Q-tips were tested that it was clear they were contaminated with methamphetamine. Because of these facts, the plain-view exception does not apply.
Because none of the exceptions to a warrantless search and seizure existed at the time Officer Sage seized the Q-tips and had them tested, the warrantless seizure of the Q-tips was unconstitutional. Thus, the Q-tips found on the coffee table were inadmissible at trial under the exclusionary rule.
Furthermore, the “fruit of the poisonous tree” doctrine “extend[s] the scope of the exclusionary rule to bar not only evidence directly seized, but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search.” State v. Deffenbaugh, 216 Kan. 593, 598, 533 P.2d 1328 (1975). Thus, under the fruit of the poisonous tree doctrine, because the unconstitutional seizure of the Q-tips and the following positive methamphetamine test were what led to the probable cause to obtain the search warrant, all of the evidence found in Rice's home should have been suppressed. Therefore, the district court erred when it denied Rice's motion to suppress the evidence.
Reversed and remanded.