State v. Jones

• Decision Date: 03 October 1997
• Docket Number: No. 75149,75149
• Parties: STATE of Kansas, Appellee, v. David Lee JONES, Appellant.
• Court: Kansas Court of Appeals

Page 1030

947 P.2d 1030

24 Kan.App.2d 405

STATE of Kansas, Appellee, v. David Lee JONES, Appellant.

No. 75149.

Court of Appeals of Kansas.

Oct. 3, 1997.

Syllabus by the Court

1. The emergency doctrine reflects a recognition that the police perform a community caretaking function which goes beyond fighting crime. The community looks to the police to render aid and assistance to protect lives and property on an emergency basis regardless of whether a crime is involved.

2. Warrantless entries into and searches of private property pursuant to the emergency exception are not prohibited by the Fourth Amendment to the United States Constitution or by Section 15 of the Kansas Constitution Bill of Rights.

3. A three-prong test to analyze the applicability of the emergency doctrine exception to warrantless searches is discussed.

4. In warrantless search and seizure cases, the reasonable grounds required under the emergency doctrine differ from the probable cause required under the crime-related exigent circumstances exception.

5. When a police entry is a genuine check on the welfare of a person, many concerns which justify the use of the exclusionary rule in search and seizure cases are not applicable.

6. In evaluating a warrantless search and seizure justified by the emergency doctrine, police officers' actions are judged on the basis of the facts facing them at the moment of their decision and are evaluated objectively with due consideration for the stress of the moment and the pressure to make important decisions based on often ambiguous facts.

7. In warrantless search and seizure cases, police entry to check on the welfare of a person may not be used as a stratagem for circumventing the Fourth Amendment to the United States Constitution.

Carol Smasal, Student Intern, Jean K. Gilles Phillips, Assistant Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

Steven J. Obermeier, Assistant District Attorney, Paul J. Morrison, District Attorney, and Carla J. Stovall, Attorney General, for appellee.

Before PIERRON, P.J., ELLIOTT, J., and DAVID W. KENNEDY, District Judge, Assigned.

PIERRON, Judge:

David Lee Jones appeals his conviction for possession of cocaine. A detailed statement of the facts is necessary in order to evaluate issues he raises on appeal.

On March 25, 1995, shortly after noon, Officer Doug Orbin of the Shawnee police department was dispatched to an apartment complex on a "check the welfare of a subject" call. There he met with Anthony and Donna Flamez, who were concerned about their son Tony. They had made plans to have dinner with Tony on March 22, 1995, but he had not shown up, and they had not seen him since. They had called Tony's apartment several times and left messages on his answering machine, but he had never answered the phone or returned their calls. The Flamezes said this was unusual behavior for Tony. They also said Tony had recently become acquainted with someone of whom he seemed to be afraid.

Officer Orbin, two other police officers, the Flamezes, and an apartment employee went up to Tony's apartment. The apartment employee had the manager's permission to open Tony's door if the need arose. After knocking on the door, calling for Tony, and receiving no response, Orbin asked the employee to open the door with the manager's key.

Inside, a man and woman were lying on the couch under a blanket. Orbin entered the apartment and asked the man if he was Tony. The man indicated he was not, and the Flamezes, standing outside the door, confirmed the man was not their son. Orbin asked the couple if they knew where Tony was and if he was all right, but neither had any idea where Tony was or when he would return. (Tony was later found in Jones' apartment, where he had gone voluntarily.)

While conversing with the couple, Orbin noticed a glass tube with burnt residue on the end lying on the coffee table in front of the couch. Orbin recognized the item as a crack pipe and asked the man what it was. The man responded that it was used to smoke crack.

Orbin attempted to identify the couple during this time, but the man gave several false names which came back with no record after a records check. Another officer noticed the man's picture lying on top of the woman's purse. On the back of the picture was the man's real name, David Lee Jones. A records check revealed an outstanding warrant for Jones. Orbin placed Jones under arrest and asked where his clothes were so he could get dressed. Jones pointed to his clothes, including a pair of pants, which were lying on the floor about 10 feet away.

Orbin checked the pants pockets for safety purposes before handing them to Jones. Inside the pockets were pieces of plastic and a vial containing a white powder residue, which Orbin believed to be a controlled substance. Subsequent testing revealed cocaine present on both the crack pipe from the table and in the vial recovered from the pocket.

Orbin estimated he had spotted the crack pipe within 2 minutes of entering the apartment. Within the next 5 to 10 minutes Jones' name was determined from the photograph, and within 30 seconds thereafter, it was determined that Jones had a warrant out for his arrest.

Jones testified he had been acquainted with Tony for about a year and had stayed overnight at Tony's apartment on many occasions. He said Tony sometimes gave him the key so he could stay there, and he liked to do so because it was peaceful. Jones said he kept clothes at Tony's place along with a few personal items.

At a suppression hearing, Jones argued the Flamezes' concern did not justify the warrantless entry of Tony's apartment. The State countered by asserting that the emergency exception to the warrant requirement recognized in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), and in People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976), was applicable. The trial court determined that Jones had standing to contest the search, and after applying the test provided in Mitchell, the court agreed with the State that the emergency doctrine exception was satisfied. The court denied the motion to suppress and the case proceeded to trial.

A jury convicted Jones on the possession of cocaine charge but acquitted him of the possession of drug paraphernalia charge. He was sentenced to a nondeparture sentence of 34 months. Jones filed a timely notice of appeal on the issue of the legality of the entry.

Jones' first argument regards the admissibility of certain evidence at the suppression hearing and the State's burden of proof. The State bears the burden of proving the lawfulness of its warrantless entry and subsequent seizure of evidence within the premises. See State v. Anderson, 259 Kan. 16, Syl. p 1, 910 P.2d 180 (1996). Jones argues the trial court relieved the State of its burden by allowing Officer Orbin to testify at the suppression hearing as to what the Flamezes had said to prompt Orbin to make the warrantless entry. He argues such testimony was inadmissible hearsay and the Flamezes should have had to testify personally in order for the court to determine whether they actually feared for their son's welfare and whether there was an actual emergency. Jones argues that unless Tony really was in danger, there was no legal justification for the warrantless entry.

Whether the Flamezes honestly feared for their son (and it appears they did) was not the issue. Whether Tony was truly in danger was also not the issue. The issue was whether there were sufficient facts to support a reasonable belief by Officer Orbin that an emergency existed which justified entry into the premises. While the Flamezes' testimony might have been helpful in this regard, it was not required. Officer Orbin was qualified to testify as to the information he acted upon, and it was for the trial court to judge his credibility.

As for Officer Orbin's testimony regarding statements made to him by the Flamezes, this evidence was admissible. Out-of-court statements made by third parties to police officers which are offered to the court merely to explain the officers' conduct in the course of their investigative duties are generally admissible because they are not offered for the truth of the matter stated. It is only when such statements also directly incriminate the defendant that they are inadmissible, absent application of some hearsay exception. State v. Johnson, 253 Kan. 75, Syl. p 7, 853 P.2d 34 (1993).

The trial court admitted the testimony merely as evidence of what led the officers to act, and not for the truth of the matters stated. This was not hearsay. None of the statements incriminated Jones. The testimony was properly admitted.

Jones also argues the evidence acquired by the police after entering the apartment should have been suppressed as fruit of the poisonous tree. Specifically, he argues the warrantless entry was not justified by any exception to the warrant requirement and was therefore illegal.

Appellate courts use a substantial competent evidence standard to review the factual underpinnings of a trial court's decision regarding the suppression of evidence, but the ultimate legal conclusion drawn from those facts is reviewed de novo with independent judgment. See State v. Webber, 260 Kan. 263, Syl. p 3, 918 P.2d 609 (1996), cert. denied --- U.S. ----, 117 S.Ct. 764, 136 L.Ed.2d 711 (1997). The facts and circumstances leading up to and including the initial entry are not in dispute. The issue raised by Jones may be resolved based on those undisputed facts.

The trial court ruled that Jones had standing to attack the warrantless entry because he was an overnight guest with permission to be on the premises. Substantial competent evidence supports the trial court's factual determinations in this regard, and the ultimate legal conclusion is supported by case law. See Minnesota v. Olson, 495 U.S. 91, 98-100, 110 S.Ct. 1684, 1688-90, ...