State v. Daino, 120,824

CourtUnited States State Supreme Court of Kansas
Writing for the CourtThe opinion of the court was delivered by Wall, J.
Citation475 P.3d 354
Parties STATE of Kansas, Appellant, v. Gianni Massimo DAINO, Appellee.
Docket NumberNo. 120,824,120,824
Decision Date13 November 2020

475 P.3d 354

STATE of Kansas, Appellant,
Gianni Massimo DAINO, Appellee.

No. 120,824

Supreme Court of Kansas.

November 13, 2020

Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellant.

Senanem D. Gizaw, of Johnson County Public Defender's Office, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by Wall, J.:

This case requires us to decide whether an individual may consent to law enforcement's entry into an apartment through nonverbal conduct under section 15 of the Kansas Constitution Bill of Rights.

The State charged Gianni Massimo Daino with several drug-related offenses after a warrantless search of his apartment led to the discovery of marijuana and other incriminating evidence. Daino moved to suppress all evidence seized as a result of the search. The State opposed the motion, arguing Daino's nonverbal conduct evidenced his voluntary consent. The district court granted Daino's motion, concluding as a matter of law that established Kansas precedent forecloses a finding of valid consent based on nonverbal conduct. In a split decision, the Court of Appeals reversed, holding that Daino's nonverbal conduct unequivocally expressed his voluntary consent. Daino petitioned for review, asking this court to decide whether Kansas law forecloses consent through nonverbal conduct. We conclude it does not, and nonverbal conduct can be probative of the existence of consent under the totality of the circumstances under section 15 of the Kansas Constitution Bill of Rights. We affirm the Court of Appeals' decision in part and reverse in part. Further, we reverse the order granting Daino's motion to suppress and remand the matter to the district court for further proceedings in light of the controlling legal standards set forth herein.


Dispatch sent Officers Robert McKeirnan and Kelly Smith to an apartment complex in

475 P.3d 357

response to a complaint about a narcotics odor. At the complex, the officers spoke with a person who said he could smell marijuana coming from apartment number 48. As the officers walked toward that apartment, they could smell marijuana but could not tell where the smell originated. McKeirnan knocked on the apartment door when they arrived, but he did not announce he was a police officer. Both officers were in uniform, but they stood to the side of the door as a general safety precaution.

After about a minute, Daino opened the door a few inches—enough to reveal part of his body but still blocking McKeirnan's line of sight into the apartment. McKeirnan noticed an overwhelming smell of both raw and burnt marijuana coming from the apartment. He told Daino he knew there was a lot of marijuana in the apartment because of the smell. McKeirnan then asked to come in the apartment. According to an audio recording McKeirnan made of the incident, McKeirnan told Daino: "Well, here's the deal, not a huge deal, but I gotta write a ticket if there's marijuana in the house, okay? 'Cause it's illegal, so let me step in with you real quick and we'll get it figured out, okay?"

At the suppression hearing, McKeirnan testified that Daino responded by nodding his head and saying, "Okay. Let's do this." Daino then opened the door as far as it would go and stood out of the way. McKeirnan then clarified he did not recall Daino verbally responding to the request to enter the apartment, but he "assumed that [Daino] was agreeing with me that ... it was okay for us to come in and take care of the marijuana." McKeirnan confirmed he "[a]bsolutely" believed Daino was allowing him in and "consenting to [his] presence."

At counsel's request, McKeirnan also demonstrated the nonverbal conduct and gestures Daino made in response to McKeirnan's request to enter, using a swinging door near the witness stand for illustrative purposes. The district court later described Daino's nonverbal conduct, as demonstrated by McKeirnan:

"[W]hen 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."

Smith also testified Daino opened the door and stepped back in response to McKiernan's request to enter the apartment. She also believed Daino was consenting to the officers' entry.

Once inside, McKeirnan asked Daino where the marijuana was located. Daino answered it was in his bedroom and pointed towards his room. McKeirnan said, "I'll go back there and grab that, okay?" and Daino nodded. McKeirnan said he would write Daino a ticket and give him a court date provided there was only a small amount of marijuana and some paraphernalia. Daino responded, "[I]t's a lot of weed."

In Daino's bedroom, McKeirnan saw a safe, medication bottles, some pipes, and LSD blotter paper. He asked Daino to point out the location of the marijuana and Daino complied. McKeirnan did not seize any items at that time. Instead, he asked Daino to sign a consent to search form. The form advised Daino that he had the right to refuse consent to the search. Daino signed the form, purportedly consenting to a search of the apartment except for his absent roommate's bedroom. According to the affidavit, the resulting search uncovered 27 grams of marijuana; 15 Amphetamine/Dextroamphetamine pills; a black notebook which appeared to be a ledger for drug sales; plastic bags of various sizes; a digital scale; $363 in cash; as well as other illegal narcotics and items of paraphernalia.

Given the amount of marijuana the officers recovered, McKeirnan knew he could not simply write Daino a ticket. McKeirnan arrested Daino and read him his Miranda rights. Daino then admitted to selling marijuana.

475 P.3d 358

According to McKeirnan, Daino was cooperative and compliant throughout the encounter, and he never limited or withdrew his alleged consent. McKeirnan also testified Daino was 18 years of age at the time of the search and was emotionally upset during the interaction. Daino cried at one point, but he was never so upset that he could not communicate with the officers.

The State charged Daino with possession of marijuana with intent to distribute under K.S.A. 65-4105(d)(17), possession of amphetamine under K.S.A. 65-4107(d)(1), and possession of drug paraphernalia under K.S.A. 2019 Supp. 21-5709(b)(1). Daino moved to suppress the evidence, arguing the officers obtained all evidence through an illegal search and seizure in violation of the Fourth Amendment to the United States Constitution and section 15 of the Kansas Constitution Bill of Rights. He challenged the officers' "knock-and-talk," the officers' entry into his apartment, the search of his bedroom, and the admissibility of his statements to police.

As for the officers' entry into the apartment, Daino argued he did not validly consent because he never verbally agreed to let the officers enter. For support, he cited State v. Poulton , 37 Kan. App. 2d 299, 307, 152 P.3d 678 (2007), aff'd in part, rev'd in part 286 Kan. 1, 179 P.3d 1145 (2008). Daino claimed that, like the defendant in Poulton , his nonverbal conduct showed mere acquiescence to the officers' claim of authority, not valid consent. The State advanced the opposite position.

The district court granted Daino's motion to suppress, ruling only on Daino's challenge to the officers' entry into the apartment. The court found McKeirnan was credible. It also found Daino's gesture clearly communicated an invitation to enter the apartment. But it construed Poulton as prohibiting implied or nonverbal consent "under any circumstances, regardless of how clear ... the gestures might be."

The district judge expressed his disagreement with what he perceived to be Poulton 's holding but acknowledged he was bound by that decision:

"[W]ere it up to me, I would find that consent was freely and specifically and intelligently given.

"But again, [ 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 Black[']s Law Dictionary [definition] of implied consent as, [m]anifested 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.


"Again, if I haven't said it already enough times, I don't agree. I believe if it were up to me that [Daino] 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."

After the district court explained its...

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