State v. Daino

Citation458 P.3d 252
Decision Date10 January 2020
Docket NumberNo. 120,824,120,824
Parties STATE of Kansas, Appellant, v. Gianni Massimo DAINO, Appellee.
CourtCourt 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.

Gardner, 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.

FACTUAL AND PROCEDURAL BACKGROUND

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: "Well, here's the deal, not a huge deal, but I've got to write a ticket if there's marijuana in the house, Okay? Because it is illegal, so let me step in with you real quick and we will get it figured out, okay?" McKeirnan testified that Daino then "nodded and just said, ‘Okay. Let's do this.’ And then at that point he opened the door for me and invited me in." 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.

"[THE STATE:] Did the defendant specifically tell you, you could come into the apartment verbally?
"[MCKEIRNAN:] Verbally, he did not say, yes, sir, please come in.
"[THE STATE:] Did he say anything out loud to you?
"[MCKEIRNAN:] Not that I—not that I recall from that day. At that point, he just opened up the door and allowed us into the apartment."

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:

"I don't know how to accurately portray this on the record, but when the officer demonstrated what the defendant did in this case, any reasonable person that exists in the United States would have construed his gesture as ‘come on in the apartment.’
"He opened the door up, and he took his right hand and swung it across his body, and pointed into the apartment. No reasonable person could have construed that as don't come in, or I'm not sure if I want you to come in, or I'm still trying to decide whether I want you to come in. Any reasonable person would have construed that as come on in the apartment.
....
"... I think the officer candidly admitted it, and I appreciated that, that it was nonverbal. It was a gesture."

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:

• Black notebook which appeared to be a ledger for drug sales,
• Multiple glass bongs,
• Multiple containers with butane honey oil or "shatter" inside,
• Five 2mg Alprazolam

pills,

• 15 Amphetamine/Dextroamphetamine pills,

• Numerous plastic bags of various sizes,

• Digital scale,

• Grinder,

• Paper roller,

• Package of blotter papers,

• $363 in cash,

• Three strips of paper with confirmed LSD,

• 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:

1. whether officers had valid consent to enter the apartment;
2. whether the search of the bedroom was valid; and
3. whether Daino's statements to the officers were admissible.

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:

"Then I have to examine what I believe to be clear law stated by our Kansas appellate courts, which is consent may not be implied, the way I read it, under any circumstances, regardless of how clear I might think that the gestures might be.
"And in this case, if I haven't made it clear before, this is different than the defendant just opening the door, opening the door and simply allowing the officers to come in, opening the door and not affirmatively telling them that he doesn't want them to come in—and sometimes I can't help being a little bit of a smart aleck—but I think the universal gesture with his hands of, Come on in.
"And so, were it up to me, I would find that consent was freely and specifically and intelligently given.
"But again, State versus Poulton, I think, is clear that ... consent may never be implied. And one of the things that I think finally allowed me to land on a decision, one I don't agree with but one I think I have to make, is the fact that the Court of Appeals cited with approval the Blacks Law Dictionary of implied consent as, manifested by signs, actions, or facts, or by inaction or silence, which raise a presumption or inference that the consent has been given.
"Maybe I am just simpleminded but, again, even though I don't agree with it, I read the Kansas case law as saying that no action or gesture can be construed as implied consent.
"... In our state courts, consent by [im]plication, at least when it involves homes and DUI blood testing, is not voluntary consent. Kansas state courts want something more.
"Again, if I haven't said it already enough times, I don't agree. I believe if it were up to me that the Defendant did consent knowingly, voluntarily. But I believe that under the current status of Kansas law, it was not consent and, as a result, I must grant the motion to suppress."

The State took an interlocutory appeal. It argues:

the district court's factual finding that
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2 cases
  • State v. Daino
    • United States
    • United States State Supreme Court of Kansas
    • November 13, 2020
    ...both the Fourth Amendment and section 15. In a split decision, the Court of Appeals reversed the district court. State v. Daino , 57 Kan. App. 2d 653, 670, 458 P.3d 252 (2020). The majority observed that Kansas courts have traditionally interpreted section 15 as providing the same protectio......
  • In re Kupka
    • United States
    • United States State Supreme Court of Kansas
    • February 28, 2020
    ......Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors. "37. Duty Violated . The ......

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