State v. Basurto

• Citation: 807 P.2d 162,15 Kan.App.2d 264
• Decision Date: 01 March 1991
• Docket Number: No. 64444,64444
• Parties: STATE of Kansas, Appellee, v. Miguel A. BASURTO, Appellant.
• Court: Court of Appeals of Kansas

Page 162

807 P.2d 162

15 Kan.App.2d 264

STATE of Kansas, Appellee, v. Miguel A. BASURTO, Appellant.

No. 64444.

Court of Appeals of Kansas.

March 1, 1991.

Review Granted June 13, 1991.

Syllabus by the Court

1. The protection of the Fourth Amendment against unreasonable searches and seizures extends to the residence of a defendant and to all other structures, buildings, or vehicles within the "curtilage" of that residence.

2. A search warrant which describes a specific residence as the place to be searched authorizes the search of that residence and any other structures, buildings, or vehicles located within the "curtilage" of the specifically described residence.

3. The failure of the search warrant to use the word "premises" in connection with the description of the residence does not, under the facts presented, render the search of an outbuilding within the "curtilage" of the residence outside the scope of the warrant.

Jack Focht, of Focht, Hughey, Hund & Calvert, Wichita, for appellant.

Debra Byrd Wagner, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before LEWIS, P.J., and ELLIOTT and RULON, JJ.

LEWIS, Judge:

This is a direct appeal by the defendant from his convictions of the crimes of possession of marijuana with intent to sell and possession of cocaine with intent to sell.

The principal issue on this appeal is whether evidence seized under a search warrant should be suppressed. Specifically, the question is whether the officers exceeded the scope of the warrant in searching a shed in the back of the defendant's dwelling.

There appears to be no question as to the propriety of the issuance of the search warrant. The only question at issue is the permissible scope of the search permitted under the warrant. The search warrant applied for and obtained in the instant matter described the place to be searched as follows:

"2528 N. Mascot, Wichita, Sedgwick County, Kansas, to be a single story residential structure, with white siding painted white with black trim that is the fourth (4th) residential structure south of twenty-fifth (25th) Street North on Mascot. The residence sits on the east side of Mascot facing west. The numbers 2 5 2 8 are displayed on a wood plaque in a horizontal manner directly to the north of the front door."

The warrant further described the items for which a search was to be made and then stated that those items "are located in or upon the above described persons, places, things, or means of conveyance."

The execution of the warrant took over two hours. However, this appeal involves only the legality of the search of an unattached shed or outbuilding located in the back of defendant's residence. We shall, therefore, limit our recitation of the facts to those necessary to deal with the issue presented.

The police officers, armed with the search warrant described above, first secured and then searched the defendant's residence located at 2528 North Mascot. The search of the residence itself is not at issue and was apparently routinely conducted. However, during or shortly after the residence was searched, it appears that the officers viewed the contents of an unattached shed located in the back of the residence. The shed contained what appeared to be a quantity of cocaine.

At this point, the officers appear to have been uncertain as to how to proceed. They seem to have questioned their authority to search the shed and seize the contraband items under the warrant in their possession. As a result, they first attempted to obtain a written waiver consenting to the search from the defendant's wife, who was present in the residence. Initially, the wife orally consented to the search but, after a written waiver was prepared, she refused to sign it. The officers then sought and obtained from the defendant a written waiver consenting to the search of the shed. After this was in hand, the shed was searched and a quantity of cocaine was removed.

The defendant argues that the search of the unattached shed was not authorized by the terms of the search warrant described above, which specifically only describes the residence of the defendant. As a result, defendant argues that the search of the shed was outside the scope of the warrant and that the items seized from the shed should be suppressed. We disagree.

We also note that the defendant argues that his consent to the search of the shed was illegally obtained. As will be seen, we do not reach that issue, although we tend to agree with the defendant's arguments in that regard.

Historically, the Fourth Amendment protection against unreasonable searches and seizures has extended not only to the residence of a suspect, but also to an area surrounding the residence, which is referred to as the "curtilage." See United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326, reh. denied 481 U.S. 1024, 107 S.Ct. 1913, 95 L.Ed.2d 519 (1987); Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984); Hester v. United States, 265 U.S. 57, 59, 68 L.Ed. 898, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924). In Dunn, the Supreme Court of the United States points out the historical basis for the curtilage concept as follows: "The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself." 480 U.S. at 300, 107 S.Ct. at 1139.

Since the "curtilage" is afforded the same Fourth Amendment protection as the residence itself, it has been generally held that a search warrant describing only the residence will authorize a search of any buildings or vehicles within the "curtilage" even though they are not specifically described in the warrant. In 2 LaFave on Search and Seizures § 4.10, pp. 312-13 (2d ed. 1987), the general rule is stated:

"A search made under authority of a search warrant may extend to the entire area covered by the warrant's description. For example, if the warrant authorizes search of a ranch, the entire acreage of the specified ranch may be searched. Similarly, if the warrant authorizes a search of 'premises' at a certain described geographical location, buildings standing on that land may be searched. This means that if the place to be searched is identified by street number, the search is not limited to the dwelling house, but may also extend to the garage and other structures deemed to be within the curtilage and the yard within the curtilage. Similarly, if the warrant also directs a search of a vehicle on the described premises, it is sufficient that the car is situated close enough to the house to be within the curtilage."

In State v. Vicars, 207 Neb. 325, 330, 299 N.W.2d 421 (1980), the Supreme Court of Nebraska dealt with the question of whether a search warrant describing the defendant's residence authorized the search of a shed located on the defendant's property. In answering that question in the affirmative, the Nebraska Supreme Court stated:

"The connected question is whether the search of that shed was made pursuant to a valid search warrant. The defendant argues that the search warrant did not extend to the calf shed because the description therein is as follows: 'A green single family dwelling described as: Original Town of Thompson, Lots 16 to 22, Fr. Lots 11-15, 29S 8C 1BAF 8 Blk 7....' The defendant contends that the search warrant describes the place to be searched as the house only, and does not include any of the outbuildings. The question of whether an outbuilding, which is in the curtilage of a dwelling house, may be searched under the same warrant as that building, even though it is not specifically described, was dealt with in the case of Bellamy v. State, 134 Ga.App. 340, 214 S.E.2d 383 (1975). The court stated: ' "Curtilage" comes down from early English days. An out-building on the grounds is within the "curtilage" and may be searched under such a warrant, though not described specifically.' [Citation omitted.]

"This view is not new. For instance, in Ford v. State, 34 Okl.Cr. 184, 185, 245 P. 909, 910 (1926), it was stated: 'Ordinarily, a search warrant covers the curtilage and appurtenances of the place described.' See, also, Seals v. State, 157 Tenn. 538, 545, 11 S.W.2d 879, 881 (1928), which also held: 'It is our opinion that a search warrant directing that a search be made of a principal building, identified by street number, authorizes the search of an outhouse so clearly appurtenant to and a part of the same premises as the coal house here involved.' Even back in 1865, it was stated: 'It would destroy the utility of the proceeding, if, beside the building principally named, all other buildings and places of concealment upon the same premises, occupied in connection with it and by the same person, could not also be searched, and by virtue of the same warrant.' Meek v. Pierce and Another, 19 Wis. 318, 321 (1865).

"We, therefore, hold that by finding that the defendant had a reasonable expectation of privacy in the calf shed in question, a valid search warrant would be required for the search and seizure of the blue jeans. We also hold that the search warrant included the calf shed as an outbuilding appurtenant to and within the curtilage of the dwelling house, and, therefore, it was within the scope of the warrant." 207 Neb. at 330-31, 299 N.W.2d 421.

In Kansas, we appear to have adopted the rules enunciated above. In State v. Ogden, 210 Kan. 510, 519, 502 P.2d 654 (1972), a search warrant directed the search of a "white frame residence" located at 1350 South Gordon, Wichita, Sedgwick County, Kansas. Operating under that warrant, evidence was seized from a trash can in the rear of the yard at 1350 South Gordon. The defendant argued that the search warrant authorized only the search of the residence described and that the search of the trash can exceeded the scope of the warrant. Our Supreme...