State v. Daino
Citation | 458 P.3d 252 |
Decision Date | 10 January 2020 |
Docket Number | No. 120,824,120,824 |
Parties | STATE of Kansas, Appellant, v. Gianni Massimo DAINO, Appellee. |
Court | Court of Appeals of Kansas |
Kendall Kaut and Jacob M. Gontesky, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.
Senanem D. Gizaw, of Johnson County Public Defender's Office, for appellee.
Before Gardner, P.J., Buser, J., and Lahey, S.J.
This is the State's interlocutory appeal from the district court's suppression of evidence taken from Gianni Massimo Daino's apartment. The district court found that Daino's actions, in response to the officer's request to enter his apartment, would be found by a reasonable person to indicate his consent for the officers to enter. Yet the district court felt compelled by Kansas law to hold that Daino's acts were implied consent, which is not valid. We find that Daino's acts, whether labeled as express consent or implied consent, gave valid consent for officers to enter his apartment.
The facts, as established at the suppression hearing, are not disputed. Olathe police officers were sent to investigate a narcotics odor in an apartment complex. Officers Robert McKeirnan and Kelly Smith responded in uniform and spoke with a male who told them that someone in unit 48 was partying and he could smell marijuana. Before the officers approached that unit, they could smell marijuana but could not tell where the smell was coming from. When the officers arrived at the door of unit 48, they knocked on the door but did not announce themselves. After about a minute, Daino, who was 18, answered the door and opened it 8-10 inches, enough to reveal a part of his body. The officers then noticed an overwhelming odor of fresh marijuana coming from inside Daino's apartment and that there had been a lot of smoking as well.
McKeirnan told Daino that he knew there was a lot of marijuana in the apartment because he could smell it, then said: McKeirnan testified that Daino then Daino had at first blocked McKeirnan's sight into his apartment, but after McKeirnan requested to enter, Daino "opened up the door completely and stood out of the way so that we could enter." McKeirnan said Daino opened the door about as far as it could go in the apartment.
McKeirnan then clarified that he did not recall Daino making any verbal response.
McKeirnan "absolutely" believed Daino was consenting to let him enter his apartment.
At counsel's request, McKeirnan stood up and replicated with the swinging door near the witness stand the actions Daino had taken at his door. The district court later detailed McKeirnan's demonstration this way:
Smith testified that McKeirnan knocked, Daino answered the door, McKeirnan asked to enter, and Daino opened the door wider and stepped back to let them inside. He believed Daino's acts meant that he was consenting to let them enter his apartment. Daino did nothing then or later to suggest he was somehow withdrawing his consent or limiting it, except for asking them on the "written consent to search" form not to search his roommate's bedroom.
The district court also heard an audio recording of the encounter. In that recording, McKeirnan asks, "Let me step in with you real quick and we'll get it figured out, okay?" A voice softly responds "[O]kay." Yet neither party argues on appeal that Daino verbally consented, and neither officer testified about the "okay" or its source at the suppression hearing. We thus disregard it, as do the parties.
Once inside the apartment, McKeirnan asked Daino where he kept his marijuana. Daino responded that it was in his bedroom. McKeirnan asked whether he could go to the bedroom to get it, and Daino either nodded or said it was okay. McKeirnan told Daino that as long as it was a little marijuana and some paraphernalia, he would write Daino a ticket and give him a court date. Daino responded, "[I]t's a lot of weed." The officers searched Daino's apartment and found these items:
• 27 grams of marijuana, and
• 2.09 grams of THC.
After seeing the large volume of drugs and paraphernalia in the bedroom, McKeirnan decided not to seize anything and went to his car to get a "consent to search" form. He reviewed that form with Daino, then Daino signed it, permitting the officers to search the apartment except for an absent roommate's bedroom. Officers then searched Daino's bedroom and seized the items. Because Daino had such a large volume of marijuana, McKeirnan decided he could not just issue him a citation as he had anticipated. So he arrested Daino and read him his Miranda rights.
The State charged Daino with intent to distribute marijuana in violation of K.S.A. 65-4105(d)(17), possession of an amphetamine in violation of K.S.A. 65-4107(d)(1), and possession of drug paraphernalia in violation of K.S.A. 21-5709(b)(1). Daino moved to suppress all evidence, arguing officers had found it in an illegal search in violation of the Fourth Amendment of the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights.
At the suppression hearing, the parties agreed the legal issues were:
The district court ruled only on the first of these, mooting the other two.
Daino argued that the officers' entry into his apartment was unlawful because he did not unequivocally, specifically, freely, and intelligently provide consent for them to enter. Daino contended his actions showed mere acquiescence to the officer's request to enter the apartment. On the other hand, the State responded that Daino gave valid nonverbal consent and distinguished nonverbal consent from implied consent.
After the evidentiary hearing, the district court granted Daino's motion to suppress, addressing only the first legal issue Daino had raised. The district court found that even though a reasonable officer would have found Daino's actions to be free, specific, and unequivocal consent for the officers to enter the apartment, Kansas law does not allow implied consent. Although the district court did not agree with that law, it applied that law anyway:
The State took an interlocutory appeal. It argues:
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State v. Daino
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