State v. Daly
| Decision Date | 13 April 1990 |
| Docket Number | No. 63964,63964 |
| Citation | 789 P.2d 1203,14 Kan.App.2d 310 |
| Parties | STATE of Kansas, Appellee, v. John R. DALY, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The Fourth Amendment to the United States Constitution and Section 15 of the Kansas Bill of Rights protect against unreasonable searches and seizures of persons and property. The exclusionary rule prohibits introduction into evidence of both materials directly obtained from an illegal search or seizure and evidence derived from the unlawful search or seizure.
2. The fruit of the poisonous tree doctrine extends the exclusionary rule to bar evidence indirectly obtained from an unlawful search. However, the fruit of the poisonous tree doctrine is inapplicable where the police learn of evidence from an independent source, or where the connection between the unlawful conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. Whether evidence is admissible under this doctrine is a fact question.
3. If a trial court's findings on a motion to suppress evidence are supported by substantial evidence, they will not be disturbed on appeal.
4. Letters and other sealed packages are in the general class of effects in which the public has a legitimate expectation of privacy.
5. A search occurs when a reasonable expectation of privacy is infringed upon, while a seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property.
6. Subjecting luggage or packages to a sniff test by a trained narcotics detection dog is not a search within the meaning of the Fourth Amendment or Section 15 of the Kansas Bill of Rights.
7. When luggage or packages surrendered to a third-party common carrier are detained for an immediate on-the-spot canine sniff, there is no impairment of the owner's privacy interests or possessory interests.
John C. Humpage, Topeka, for appellant.
Martin L. Miller, Asst. Dist. Atty., James E. Flory, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before ABBOTT, C.J., and REES and RULON, JJ.
John R. Daly, defendant, appeals his bench conviction for possession of cocaine. K.S.A.1989 Supp. 65-4127a.
On September 7, 1988, Robert VanHoesen, a Douglas County Sheriff's detective, received a telephone call from Detective Jim Gillespie of the Los Angeles, California, Police Department. Detective Gillespie informed Detective VanHoesen that he used a narcotics "sniffer" dog as part of a routine investigative procedure to examine packages being shipped from the Los Angeles airport by Federal Express. Detective Gillespie told Detective VanHoesen that the dog had identified a package being shipped to a Lawrence, Kansas, address. Detective Gillespie believed this package was suspicious because the seams of the box were covered with duct tape. He then directed the dog to the package, and the dog indicated that it contained narcotics.
On September 8, 1988, Detective VanHoesen telephoned the Federal Express office in Lenexa, Kansas, and arranged for a controlled delivery of the package. At 8:30 a.m., Sergeant Crossfield picked up the package at the Lawrence office of Federal Express and was provided with a Federal Express truck, uniform, and clipboard. Sergeant Crossfield took the package, which was addressed to John Daly, 837 Michigan, Building 9, Apartment 3, Lawrence, Kansas, to the Judicial and Law Enforcement Center in Lawrence.
Detective VanHoesen submitted an affidavit in support of a search warrant of the package, and a district judge issued the warrant at 9:37 a.m. Detective VanHoesen and Sergeant Crossfield opened the box and found it contained newspapers and a clear plastic bag containing a white, powdery substance. Sergeant Crossfield removed a small sample of the powder, and conducted a cocaine field test. The results of the test indicated that the substance was cocaine. The bag and package were then resealed.
Detective Mack Pryor, of the Lawrence Police Department, dressed in a Federal Express uniform and driving a Federal Express truck, proceeded with the package to the address to which the package was sent. He arrived at 837 Michigan at 10:30 a.m. and went to Building 9. The package was addressed to Apartment 3 in Building 9, but since the apartments were designated with the letters A through D instead of numbers, Detective Pryor went to Apartment C and rang the doorbell. After waiting five to ten minutes at Apartment C without any response, a man came out of Apartment A and asked Pryor if he was looking for Apartment A. Detective Pryor explained he was looking for Apartment 3 but had found the apartments to be designated by letters rather than numbers. The man in Apartment A then asked Pryor who he was looking for and Pryor responded "John Daly." The man identified himself as John Daly, accepted the package from Detective Pryor, and signed the Federal Express receipt form. Detective Pryor asked Daly if he was expecting a package from California, and Daly answered "yes."
After he delivered the package, Detective Pryor returned to the Federal Express truck and radioed Detective VanHoesen at the Judicial and Law Enforcement Center and informed him the package had been delivered and the correct address was Apartment A not 3. At that time, Detective VanHoesen was waiting for information from Pryor to complete an affidavit for a search warrant to search for the delivered package in Apartment A. The warrant was issued at 10:45 a.m. and received by VanHoesen at 10:48 a.m. Detective VanHoesen then radioed Sergeant Crossfield, who was waiting in a car near the apartment, and informed him that the warrant had been signed. VanHoesen then proceeded to the apartment building with the search warrant.
Within a few minutes, but before Detective VanHoesen arrived with the warrant, Crossfield, Pryor, and two other officers proceeded to Apartment A, and Pryor knocked on the door. When Daly answered, Pryor identified himself as a police officer and handcuffed Daly. The officers entered the apartment and, after being informed another person was upstairs, that person was brought down to the front room by Crossfield. The officers then remained in the front room until Detective VanHoesen arrived with the search warrant, which Crossfield testified was at about 10:50 or 10:55 a.m. Pryor testified that approximately 10 to 15 minutes elapsed from the time of entry and VanHoesen's arrival.
While in the front room, the officers observed drug paraphernalia and marijuana residue sitting in plain view. Officer Pryor testified that the package he had delivered was sitting between the coffee table and couch and some of the newspapers had been taken out. The officers did not look in the box until Detective VanHoesen arrived.
When Detective VanHoesen arrived with the search warrant, he discovered the plastic bag was not in the box and asked Daly for consent to search the apartment, which Daly denied. VanHoesen returned to the Judicial and Law Enforcement Center to request a third search warrant while the other officers remained at the apartment. VanHoesen's affidavit for the third warrant stated that the plastic bag had been removed from the box and "moved to an unknown location in the apartment." The affidavit further stated that the officers had observed, in plain view, pipes believed to be used for smoking hashish and marijuana, green vegetation believed to be marijuana, and a set of scales. The search warrant was issued at 1:39 p.m. and authorized a search for cocaine, marijuana, narcotics, paraphernalia, the plastic bag containing cocaine, items establishing identity of the person(s) in control of the apartment, and records of narcotics purchases and sales.
The third search warrant was executed shortly after its issuance, and the plastic bag containing cocaine was located under a blanket on a divan in the front room. The officers also seized various drug paraphernalia.
Daly was initially charged with possession of cocaine with intent to sell (K.S.A.1989 Supp. 65-4127a); possession of marijuana (K.S.A.1989 Supp. 65-4127b[a]: possession of drug paraphernalia (K.S.A. 65-4152[a]; and failure to pay tax imposed upon marijuana and controlled substances (K.S.A. 79-5201 et seq.). Following the preliminary hearing, Count I of the complaint was amended to charge only possession of cocaine, and the charge for failure to pay the controlled substance tax was dismissed by the trial court.
Daly filed two motions to suppress; one alleged the package was illegally seized in Los Angeles, the other claimed the officers' warrantless entry into Daly's apartment tainted the evidence seized under the third search warrant. Both motions were denied.
Following a bench trial, the trial court found Daly guilty of one count of possession of cocaine and not guilty of possession of marijuana and possession of drug paraphernalia. In ruling on the charges of possession of marijuana and drug paraphernalia, the trial court found the officers had illegally entered the apartment without a warrant and, thus, the marijuana and paraphernalia in plain view were unlawfully observed and excluded from evidence. The court explained that the affidavit for the third search warrant claimed these items were in plain view without stating that the officers viewed the items upon a warrantless entry. The court noted the affidavit did not mention the inevitable discovery rule but instead totally relied upon the illegal entry. Additionally, in finding the entry to be illegal, the court stated that there was conflicting testimony as to whether the search warrant was even signed by the judge prior to the officers' entry.
Daly asserts that the police officers' warrantless entry of his apartment, which the trial court found to be illegal, tainted the third search warrant and the cocaine...
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