State v. Baughman

• Decision Date: 21 September 2001
• Docket Number: No. 85,491.,85,491.
• Citation: 29 Kan. App.2d 812,32 P.3d 199
• Parties: STATE OF KANSAS, Appellee, v. DAVID G. BAUGHMAN, Appellant.
• Court: Kansas Court of Appeals

29 Kan. App.2d 812

32 P.3d 199

STATE OF KANSAS, Appellee, v. DAVID G. BAUGHMAN, Appellant.

No. 85,491.

Court of Appeals of Kansas.

Opinion filed September 21, 2001.

Kevin Loeffler, of Wichita, for appellant. Donna L. Longsworth, assistant county attorney, Matt Treaster, county attorney, and Carla J. Stovall, attorney general, for appellee.

Before BEIER, P.J., PIERRON, J., and BUCHELE, S.J.

BEIER, J.:

This case requires us to decide whether law enforcement officers' warrantless entry into a commercial building at night, when a door had been left ajar and a light left on inside, violated the business owner's Fourth Amendment right to be free of unreasonable searches and seizures.

Defendant-appellant David G. Baughman seeks reversal of his drug convictions, contending the district court erred in denying his motion to suppress evidence found in the building housing his business. Law enforcement officers discovered marijuana growing inside Baughman's business when they entered the building about 3:30 a.m., prompted by an open exterior door and a light inside. Suspecting a burglary in progress, the officers did not attempt to contact Baughman before entering the building, although at least one of them was aware the business was his. The building was located in Walton, Kansas.

One of the deputies testified that standard safety procedure dictated they should search a commercial building found in circumstances such as the one in this case before calling the business owner. Indeed, at oral argument, the State took the position that law enforcement officers should be permitted to enter a commercial building under these circumstances, even if an owner had been contacted and refused to give consent, because the officers are responsible for protecting the owner regardless of whether he or she declines to be protected.

After the officers observed a grow light and plants appearing to be marijuana in the building, they obtained a search warrant and seized numerous marijuana plants and growing equipment from the building. A detective testified that defendant waived his Miranda rights and admitted to growing the marijuana for his personal use.

Baughman moved to suppress the evidence and his statements. The district court denied the motion, relying primarily upon Banks v. State, 229 Ga. App. 414, 493 S.E.2d 923 (1997),overruled on other grounds Calbreath v. State, 235 Ga. App. 638, 640 n.3, 510 S.E.2d 145 (1998)

. Banks recognized a "security check" exception to the warrant requirement in specific circumstances. The Tenth Circuit had rejected a broad security check exception in favor of a more flexible approach in United States v. Bute, 43 F.3d 531 (10th Cir. 1994).

When, as here, the facts material to a motion to suppress evidence are not in dispute, the question of whether to suppress is one of law subject to unlimited review by the appellate court. State v. Rexroat, 266 Kan. 50, 53, 966 P.2d 666 (1998).

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, and a warrantless search is per se unreasonable unless it falls within a recognized exception. State v. Canaan, 265 Kan. 835, 840, 964 P.2d 681 (1998) (citing Katz v. United States, 389 U.S. 347, 357, 19 L. Ed.2d 576, 88 S. Ct. 507 [1967]).

Kansas has previously recognized several exceptions to the Fourth Amendment search warrant requirement: consent; search incident to a lawful arrest; stop and frisk; probable cause to search accompanied by exigent circumstances, of which hot pursuit is one example; the emergency doctrine; inventory searches; plain view; and administrative searches of closely regulated businesses. See Canaan, 265 Kan. at 843 (inventory search of impounded automobile; plain view); State v. Box, 28 Kan. App.2d 401, 404, 17 P.3d 386 (2000) (citing State v. Sanders, 5 Kan. App.2d 189, 195, 614 P.2d 998 [1980]) (consent, search incident to arrest, stop and frisk, exigent circumstances, hot pursuit); State v. Jones, 24 Kan. App.2d 405, 410-12, 947 P.2d 1030 (1997) (emergency doctrine recognized in State v. Jones, 2 Kan. App.2d 38, 573 P.2d 1134 [1978]); State v. Marsh, 16 Kan. App.2d 377, 381-87, 823 P.2d 823 (1991) (citing as controlling New York v. Burger, 482 U.S. 691, 702-03, 711-12, 96 L. Ed.2d 601, 107 S. Ct. 2636 [1987]); see also Steagald v. United States, 451 U.S. 204, 218, 68 L. Ed.2d 38, 101 S. Ct. 1642 (1981) (recognizing hot pursuit exception as one example of exigent circumstances exception); State v. Riddle, 246 Kan. 277, 280, 788 P.2d 266 (1990) (same). Although our appellate courts also frequently refer generally to "reasonableness" as the guiding principle of Fourth Amendment analysis, see, e.g., In re L.A., 270 Kan. 879, 21 P.3d 952 (2001)

(citing New Jersey v. T.L.O., 469 U.S. 325, 340, 83 L. Ed.2d 720, 105 S. Ct. 733 [1985]); State v. Jones, 27 Kan. App.2d 476, 479, 5 P.3d 1012 (2000),

affd.

270 Kan. 526, 17 P.3d 359 (2001), we do not interpret these references as a license to ignore or discount the recognized exceptions to the warrant requirement. Rather, we think it wise to avoid "the wild card of general reasonableness" as the rationale for our decisions in Fourth Amendment cases. See Alaska v. Myers, 601 P.2d 239, 245-46 (Alaska 1979) (Boochever, C.J., dissenting) (vague "reasonableness" standard; "leave it to the officer on the beat ... [and] the trial judge" to make an unguided determination); see also Bute, 43 F.3d at 534-35 (precedent "neither establishes nor condones application of an amorphous `reasonableness' test" to determine constitutionality of warrantless search; clearly defined exception to warrant requirement must apply). A vague standard resting only on an individual judge's or an individual law enforcement officer's idea of what is "reasonable" in any of myriad combinations of circumstances is bound ultimately to yield inconsistent, and consequently unfair, results.

We are thus faced with three options: (1) We can affirm, holding that this search fits within one of the exceptions to the warrant requirement already recognized in Kansas; (2) we can affirm, outlining and applying a new exception for Kansas cases; or (3) we can reverse, holding that none of the existing exceptions applies and declining to carve out a new one to fit nighttime security sweeps of unexpectedly open and lit commercial premises.

The district court chose the second option, electing to follow Banks in recognizing a new security check exception. Baughman argues this was error, because of the earlier Bute decision from the Tenth Circuit.

In Bute, police officers observed an open garage door on a commercial building about 11 p.m. No vehicles were in the garage; no one was in or around the building; there was no sign of forced entry. Suspecting an earlier burglary or vandalism, one of the officers entered through the open garage door to check out the situation and immediately smelled a very strong odor. Unable to identify it, he opened each of three doors along the wall in the garage. Behind the third door, he found a methamphetamine lab. A search warrant was obtained and executed, and physical evidence was collected. As in this case, the district court in Bute denied the defendant's motion to suppress. Bute, 43 F.3d at 533-34.

On appeal, the Tenth Circuit declined to follow California v. Parra, 30 Cal. App.3d 729, 106 Cal. Rptr. 531, cert. denied 414 U.S. 1116 (1973); Myers, 601 P.2d 239; and Illinois v. Gardner, 121 Ill. App.3d 464, 459 N.E.2d 676 (1984). Bute, 43 F.3d at 535-37. Each of those three cases had permitted warrantless searches of commercial premises left unlocked or open at night; each had followed a different route to that common conclusion.

Parra was first in time. In that case, a citizen reported around nightfall that a front door of a closed florist shop was open, and a police officer responded. The door could not be locked without a key. The officer was initially unsuccessful in finding the name of the proprietor, despite looking around inside the business and contacting his dispatcher. He and a back-up officer then resorted to a more diligent search, entering a back part of the store and opening a desk drawer. There they found drugs. The court invoked the Restatement (Second) of Torts § 197 for the proposition that a person who ordinarily would be considered a trespasser

"is privileged to enter and remain on land in the possession of another if it reasonably appears to be necessary to prevent serious harm to the land or chattels of the other party, unless the actor has reason to know that the one for whose benefit he enters is unwilling that he shall take such action." 30 Cal. App.3d 729 at 732-33.

Myers came next. In that case, police officers on routine patrol observed a light in a normally dark exterior corridor at 2:30 a.m. As they approached its source, they saw that a fire exit of a closed theater had been propped open. They entered the theater and found defendant and others using drugs. The majority of the Alaska Supreme Court based its approval of this search on its belief that occupiers of commercial premises have a less intense expectation of privacy than occupiers of residential premises. And, "[w]hen a police intrusion takes place in a context in which only a `diminished expectation of privacy' exists, such a search must be `reasonable' within the meaning of the Constitution, but may not necessarily be subject to the warrant requirement." 601 P.2d at 242. It observed that, at 2:30 a.m., "when the doors close, the [business] owner has gone home, and night falls, the owner's interest is normally not the protection of private conduct; at such a time, when the property is most vulnerable to burglary, the security of the premises ordinarily becomes the paramount interest." 601 P.2d at 243. Accordingly, the court said:

"[W]e hold that law enforcement personnel may enter commercial premises without a warrant only when, pursuant to a routine after-hours

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