State v. Dannebohm

• Decision Date: 06 July 2018
• Docket Number: No. 116,981,116,981
• Citation: 421 P.3d 751
• Parties: STATE of Kansas, Appellant, v. Brandon Alvin DANNEBOHM, Appellee.
• Court: Kansas Supreme Court

421 P.3d 751

STATE of Kansas, Appellant,
v.
Brandon Alvin DANNEBOHM, Appellee.

No. 116,981

Supreme Court of Kansas.

Opinion filed July 6, 2018.

Douglas A. Matthews, assistant county attorney, argued the cause, and Amy J. Mellor, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant.

Donald E. Anderson II, of Anderson, Bristow, & Anderson Law Office, of Ellinwood, argued the cause and was on the brief for appellee.

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

Law enforcement officers searched Alexis Tracy's apartment for Brandon Alvin Dannebohm but did not find him. Instead, they found his safe, which contained 447.5 grams of methamphetamine. Dannebohm moved to suppress this evidence. But the State argued Dannebohm lacked standing to challenge the search because the apartment was not his and he did not live there.

The district court at first agreed with the State, but upon reconsideration, it found Dannebohm had standing and went on to suppress the evidence. The State filed an interlocutory appeal, and our Court of Appeals reversed, holding Dannebohm lacked standing. We disagree. Dannebohm had a reasonable expectation of privacy in Tracy's apartment at the time of the search, so he has standing to challenge the search. We thus reverse and remand this appeal to the Court of Appeals so it can rule on the merits of the State's appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On June 23, 2015, officers Chance Bailey and Jacob Harlow of the Ellinwood Police Department were searching for Dannebohm

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who had an outstanding arrest warrant. That evening, law enforcement received a tip that Dannebohm was at Tracy's apartment in Ellinwood. In fact, Dannebohm had arrived at Tracy's apartment that morning carrying a blue cooler as Tracy was leaving to run errands.

No one was present at Tracy's apartment when the officers arrived. Eventually, the apartment manager helped Officer Harlow get in touch with Tracy over the phone. He told Tracy they were looking for Dannebohm and believed he was inside her apartment. Tracy—who was in Great Bend—said Dannebohm was not there. She said she was driving home. Tracy did not mention that Dannebohm was with her in the vehicle at the time of the call. Afterwards, she dropped him off at her mother's house and returned to Ellinwood.

Once she arrived, Tracy told the officers she was "pretty sure" there was nobody in her apartment. Officer Harlow testified that Tracy said Dannebohm had been there earlier that day but "she didn't believe he was still there." Officer Harlow still asked Tracy for her consent to search the apartment for Dannebohm, and she assented. Tracy remained outside with Officer Bailey while other officers—along with a police dog—searched the apartment. Dannebohm was not inside. But resting on a bed was "a glass pipe with white and burnt residue." In the same room was a black Sentry safe being used as a TV stand. Tracy said the safe belonged to Dannebohm. Also in the room was the same blue cooler Dannebohm carried into the house that morning. Somewhere in the apartment the officers found a duffel bag containing clothing that evidently belonged to Dannebohm.

At some point, the dog alerted to the presence of drugs on the bed near the pipe. It also detected the presence of drugs on the safe. The officers seized the pipe and the safe but not the duffle bag. Rather than trying to open the safe, they took it to the police department where they placed it in an evidence locker. After obtaining a warrant, the officers opened the safe using the combination (which they already possessed because they had dealt with the same safe in a prior case). Inside was a warrant and bonding information for Dannebohm as well as 447.5 grams of methamphetamine.

Tracy said Dannebohm brought the safe to her apartment sometime before June 9, 2015. Before the search, she told the officers that if there were drugs in the safe, they belonged to Dannebohm and not her. Tracy stored no personal items in the safe. When asked if she could access its contents, she responded, "I'm pretty sure the PIN was written down somewhere but, I mean, I never really got into it." She said the safe was occasionally left open.

The State charged Dannebohm with possession with intent to distribute methamphetamine and no drug tax stamp. Before trial, he moved to suppress the evidence because he believed the search with the dog exceeded the scope of Tracy's consent. But before the court considered the merits of Dannebohm's claim, the State moved to dismiss his motion, arguing he lacked standing to challenge the search because he had no reasonable expectation of privacy in Tracy's apartment.

The district court conducted a bifurcated evidentiary hearing on the motion to dismiss. Tracy testified she had known Dannebohm for about 10 years. She and Dannebohm had no romantic relationship. Tracy thought of him as a brother. That summer Dannebohm was at her apartment at least once a day to check on her because she was pregnant. Tracy considered Dannebohm a welcomed guest. When asked if Dannebohm would ever stay the night, she answered, "Maybe once or twice." Tracy let him keep some clothes and "other things" at the residence. Tracy also permitted Dannebohm to be at the apartment when she was not there.

At the same time, Tracy stated on cross-examination that she was the only person on the lease. Dannebohm paid no portion of the rent, utilities, or food. He had no key to the apartment, and Tracy typically locked the door when she left. She did not believe Dannebohm listed her apartment as his address.

Dannebohm testified he had been a friend of Tracy's family for 15 years and he had known Tracy most of her life. At the time of the arrest, Dannebohm lived at a house north of Great Bend. He kept some clothes at

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Tracy's apartment and would at times sleep on the couch for a few hours. When asked whether he had ever stayed the night with her that summer, he responded, "Not that I recall. I might have but wouldn't have been like all night, you know. I probably fell asleep over there for a couple two, three hours or whatever and left. .... She'd cook[ ] supper and I would eat and fall asleep and leave." Dannebohm said he came and went from the apartment in June 2015 because Tracy was pregnant, and he was checking on her. For a two-week period, he was at the apartment daily to bring her items she requested. Sometimes Tracy would meet him at his vehicle, and Dannebohm would not come inside.

Officer Harlow testified he did not think anyone other than Tracy and her newborn child lived at the apartment. Officer Bailey—who had responded to a call on a separate incident at Tracy's apartment—knew Tracy resided at the apartment. Neither Officer Harlow nor Officer Bailey saw Dannebohm staying at the apartment.

The State argued Dannebohm could not show he had standing to request suppression of the evidence. In doing so, it emphasized that he did not reside at the apartment nor did he stay overnight. Dannebohm contended that because he was an ongoing welcomed guest, he had a reasonable expectation of privacy in Tracy's apartment. In rebuttal, the State posited that even if Dannebohm was a social guest, he was absent at the time of the search. This, according to the State, is what the legality of the search "hinged" on. The court agreed that the issue was whether Dannebohm was present at the time of the search. It ultimately granted the motion to dismiss, stating "I think this is, frankly, a gray area, and this is one way to get it resolved. ... Because I think the issue is whether the person's there or not, especially in a search of an apartment or a living complex."

Dannebohm later asked the court to reconsider, citing additional federal caselaw. And in November 2016, the court heard arguments on the motion. The district court judge began by stating that he had read Minnesota v. Olson , 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed. 2d 85 (1990), in its entirety and as a result had changed his mind. The court found it significant that Dannebohm napped at the apartment, kept some clothing there, and was a welcomed guest. Ultimately, the judge held Dannebohm had standing to challenge the search. He then proceeded to grant the motion to suppress, finding the application for a search warrant to search the safe was based on the dog's sniff of the safe, which exceeded the scope of consent. The State filed an interlocutory appeal challenging both the lower court's standing ruling and its ruling on the merits of the motion to suppress.

A panel of our Court of Appeals reversed solely on standing. State v. Dannebohm , No. 116,981, 2017 WL 3447883 (Kan. App. 2017) (unpublished opinion). In doing so, it acknowledged Dannebohm was a welcomed social guest at Tracy's apartment, but—as the panel reasoned—because he was not present at the time of the search, he was not a current guest. 2017 WL 3447883, at *5-6. The panel also held Dannebohm's connection to the apartment was "not so extensive that he had a reasonable expectation of privacy in the apartment even when he was not currently a guest." 2017 WL 3447883, at *6. The panel's holding mooted any discussion of whether the district court erred in suppressing the evidence. 2017 WL 3447883, at *6.

We granted Dannebohm's petition for review....