State v. Cowdin, 79824

• Decision Date: 22 May 1998
• Docket Number: No. 79824,79824
• Parties: STATE of Kansas, Appellant, v. Tony L. COWDIN, Appellee.
• Court: Kansas Court of Appeals

Page 929

959 P.2d 929

25 Kan.App.2d 176

STATE of Kansas, Appellant, v. Tony L. COWDIN, Appellee.

No. 79824.

Court of Appeals of Kansas.

May 22, 1998.

Review Denied Sept. 10, 1998.

Syllabus by the Court

1. Rules governing the issuance and execution of search warrants are noted and discussed.

2. When the information in an affidavit for a search warrant is stated to have been obtained from the defendant's spouse, who resides with the defendant in the residence to be searched, no further showing of the witness' reliability is required.

3. The basis of an informant's knowledge of the facts related in an affidavit for a search warrant is a factor to be considered in determining the validity of the search warrant.

4. An affidavit for a search warrant should disclose facts such as the informant's criminal record and other matters of relevance.

5. The failure of an affidavit for a search warrant to state the type of facts such as the informant's criminal record and other matters of relevance is improper but will not render the affidavit unreliable and insufficient to support the issuance of the search warrant unless the omission is of material facts.

6. In order to determine if omissions in an affidavit for a search warrant are material, it must be determined whether, if the issuing judge had had the omitted information when he or she examined the affidavit, a finding of probable cause to issue the warrant still would have been proper.

7. Law enforcement officers are not required to include rumors about the affiant in an affidavit for a search warrant.

8. A magistrate's determination of probable cause for issuance of a search warrant should be paid great deference by reviewing courts.

Bryan M. Hastert, Deputy County Attorney, Lawrence M. Wright, County Attorney, and Carla J. Stovall, Attorney General, for appellant.

Jacqueline Reid-Peterson, Topeka, for appellee.

Before LEWIS, P.J., RULON, J., and JACK A. MURPHY, District Judge, Assigned.

LEWIS, Presiding Judge:

The State of Kansas prosecutes this interlocutory appeal from an order suppressing evidence obtained from defendant's residence pursuant to a search warrant.

The legal problems for this defendant began when the police responded to a domestic dispute call at his residence. Defendant and his wife, Heidi, were present and involved in a domestic dispute. Heidi plays a significant role in the developing story.

When Undersheriff Craig Davis arrived at defendant's house in response to the domestic disturbance call, he was invited into the home by defendant. While at defendant's home, Davis saw, in plain view, a Bendix/King radio in the house. This was of some significance because the sheriff's department had been made aware of the fact that defendant was suspected of receiving radios stolen from the Wellsville Police Department. To Davis' knowledge, Bendix/King radios, such as he had seen in defendant's home, are not sold to individuals but are sold only to fire departments and police departments.

Davis left the house and advised the sheriff of what he had seen. The sheriff decided to ask Heidi to come to the sheriff's office for questioning. Heidi did so and was interviewed for more than 2 hours and was at the office for approximately 10 hours.

While at the sheriff's office, Heidi told the officers conducting the questioning that defendant had received property stolen from the Wellsville Police Department and that he was in possession of guns, marijuana, and other drugs. She pinpointed for the officers the location of the contraband in defendant's house.

Based on her information, an application was made for a search warrant. The affidavit identified Heidi as the informant, indicated that she resided at the residence to be searched along with defendant, who is her husband, and recited the facts she had provided to the police officers.

Defendant's arguments and the trial court's basis for suppressing the evidence is based on what the affidavit did not say. The affidavit did not point out a recent false report of rape by Heidi, her past use of drugs, and a theft conviction. Heidi was also rumored to be having an extramarital affair with a member of the Ottawa Police Department. None of this information was disclosed in the affidavit. However, at least as to the information concerning the alleged affair, the record shows the officers who prepared the affidavit had only heard rumors about the affair and had no hard evidence that it was actually taking place.

The affidavit was taken to a magistrate, who issued a search warrant authorizing the search of the residence of Heidi and defendant. The search was executed, and it is apparent that the information provided by Heidi was accurate; a varied quantity of drugs were found, along with stolen guns and other items of contraband.

The trial court, after hearing defendant's motion to suppress, granted the motion and suppressed the evidence seized under the search warrant. It did so for the following reasons:

(1) There was no information in the affidavit regarding the reliability of past information provided to law enforcement. Because of the domestic disturbance call, the affidavit on its face provides the bias of the informant.

(2) There was no corroboration in the affidavit for the information provided by Heidi, other than what Davis saw at the residence.

(3) Davis is a credible witness, but his observation is insufficient corroboration of the information provided by defendant's wife.

(4) "The affidavit omitted information that Heidi Cowdin had been previously convicted of falsely reporting a crime; that she had, at least twice previously, been institutionalized for drug abuse, and in fact, may have been intoxicated at the time she gave information to the officers; and that she was romantically involved with a City of Ottawa police officer."

(5) "These omissions from the affidavit, on the part of affiant Campbell, were deliberate, and material. They were deliberate in the sense that Officer Campbell was aware of the information, and simply chose not to include it, and they were material, from the standpoint that they could have substantially affected Judge Fromme's analysis of the totality of the circumstances, in determining the sufficiency of the affidavit."

(6) United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, reh. denied 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984), and Kansas cases interpreting the Leon doctrine do not apply because of the willful omission of certain information from the affidavit.

In determining whether the trial court erred in suppressing evidence, the first inquiry is whether the warrant was properly issued. The standard of review on that issue is well established:

"Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate. The complaint should supply the magistrate with sufficient factual information to support an independent judgment that probable cause exists.... Probable cause is the reasonable ground for belief that a specific crime has been committed and that the defendant has committed or is committing it.... Probable cause does not require specific evidence of each element of the offense as would be needed to support a conviction. Probable cause exists if the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been or...