State v. Deffenbaugh
| Decision Date | 05 April 1975 |
| Docket Number | No. 47539,47539 |
| Citation | 533 P.2d 1328,216 Kan. 593 |
| Parties | STATE of Kansas, Appellee, v. Jon Richard DEFFENBAUGH, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The fruit of the poisonous tree doctrine is one facet of the exclusionary rule of evidence, which bars the admissibility in a criminl prosecution of evidence obtained in the course of unlawful searches and seizures. When applicable the doctrine bars not only evidence directly seized but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search.
2. The fruit of the poisonous tree doctrine is inapplicable where the government learns of the evidence from an independent source or one wherein the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.
3. The record is examined in a criminal action where the defendant was convicted of possession of narcotic drugs and for the reasons set forth in the opinion it is held that the trial court did not err (1) in refusing to suppress certain evidence, (2) in refusing to compel a witness to testify, (3) in refusing to compel the state to disclose the name of a confidential informant, (4) in imposing an increased sentence, and (5) in overruling defendant's motion for a new trial.
Edward A. McConwell, Shawnee Mission, argued the cause, and was on the brief for appellant.
J. J. B. Wigglesworth, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Margaret Jordan, Dist. Atty., were with him on the brief for appellee.
This is a direct appeal in a criminal action in which the defendant-appellant, Jon Richard Deffenbaugh, was convicted of five separate counts charging possession of illegal drugs-cocaine, morphine, methadone, marijuana, and amphetamines. Following the filing of the information the defendant by written motion moved to suppress certain evidence consisting of a quantity of drugs found in the defendant's possession at his home by police officers upon execution of a search warrant. The motion to suppress was overruled. Defendant waived trial by jury and the case was tried to the court. The defendant was found guilty on all five counts. The defendant has appealed to this court claiming trial errors.
The factual circumstances as disclosed in the record are confusing since they must be pieced together from fragments of testimony given at the hearing on the defendant's motion to suppress evidence and testimony offered after conviction on the defendant's motion for a new trial. The factual difficulty arose in this case because the state did not want to disclose the name of an undercover informant who furnished the police officers the information on the basis of which a search warrant was issued for the search of the defendant's room at his home. It is clear from the record that for a number of months prior to April 16, 1973, Kirk Hiatt, a resident of Leawood, Kansas, had served as an undercover agent and informer for law enforcement agencies in Johnson county. His own testimony establishes the fact that he had provided information to the police about drug activities in the county on seven different occasions and had been paid money each time for such information. On April 11, 1973, a robbery occurred at the Kansas University Medical Center at which time narcotic drugs were taken. On April 16, 1973, shortly before noon the defendant Deffenbaugh, was at the home of Kirk Hiatt in Leawood. Hiatt's testimony, taken in another criminal case in Wyandotte county arising out of the robbery of the KU Medical Center, disclosed that he knew police officers were watching his home on April 16 when the defendant was there. Apparently police officers were keeping his home under surveillance in view of his participation in drug activities as an undercover agent for the police. At the same time defendant was in Hiatt's home, Steve Shults, a Leawood police officer, was parked at the intersection a short distance from the house. It was his testimony that the Hiatt house was not under surveillance but according to Hiatt's testimony such was not fact. Officer Shults observed the defendant Deffenbaugh leave the Hiatt home and proceed east in his automobile on 103rd Street. Shults stopped the defendant's vehicle and without a search warrant searched the defendant's vehicle. He then took the defendant Deffenbaugh to the Leawood police department where defendant was interrogated and his person was searched. He was then released. During the search of defendant there was discovered on his person a 'list of things to do' and the names of certain people. The list of things to do led the police officers to the home of Bruce Davis. There a blue box was discovered which contained evidence of having been used to contain drugs. Later that afternoon Davis was questioned by the police officers at the Leawood police station. During the interrogation Davis suggested to the police that Kirk Hiatt may have been involved in the KU Medical Center robbery. Davis also indicated that defendant Deffenbaugh owned a similar blue box. Davis was then released.
The record shows that on April 16 at approximately the same time the defendant was arrested by Officer Shults, Kirk Hiatt drove away in his automobile from his home and proceeded to Kansas City, Missouri. There Hiatt was stopped by Officer Buford who told Hiatt to 'call Shults'. Some time between 12:30 and 1:00 p. m. on April 16 Hiatt called Shults at the Leawood police department. There is nothing in the record to show that at the time of that call Hiatt knew that defendant had been arrested or that he was at the police station. In the telephone call Hiatt told Shults that he could provide information about the robbery of the KU Medical Center.
On the following day, April 17, 1973, Hiatt had discussions with the police officers about the medical center robbery. On the morning of April 18, Hiatt went to the Johnson county sheriff's office where he gave full and complete information to the police officers including the fact that Hiatt had observed a quantity of drugs in the defendant Deffenbaugh's room. Hiatt informed them that the narcotics were kept in a blue box. Shortly after noon on April 18 the police officers obtained from Magistrate Judge Earle D. Jones a search warrant for the search of the defendant's residence located in Overland Park. The affidavit for a search warrant which was presented to Magistrate Judge Earle D. Jones was as follows:
'AFFIDAVIT FOR SEARCH WARRANT
'Lewis Hoskins and Bruce Shuman, Johnson County Deputy Sheriffs, and Steve Shults, Leawood Police Department, affiants, now appear before the undersigned magistrate, authorized to issue warrants in criminal cases, and make this affidavit in support of the issuance of a search warrant to search the following described place:
'a residence located at 5231 West 96th Street, Overland Park, Johnson County, Kansas, a part of the Villa Medici, and the attic and garage connected therewith;
and there to seize, secure, tabulate and make return thereof according to law the following property or things which have been used in the commission of a crime or which are contraband or which is property which constitutes or may be considered evidence, fruits or instrumentalities of a crime:
'cocaine, methadone, dexadrines, morphine, demarol, marijuana and a blue-green metal box approximately 18 6 8 with a combination type lock.
'Affiants say that they have probable cause to belive that the above listed things to be seized are located upon said described premises based upon the following facts:
'Affiant Steve Shults states this informant on two different occasions gave information which resulted in arrests for possession of marijuana; and later gave information for a search warrant for marijuana which resulted in an arrest and conviction.
'Affiant Bruce Shuman states that this informant has given information which has proven correct; and has on one occasion made arrangements for purchase of narcotics by an undercover agent, said purchase was actually made.
'/s/ Lewis Hoskins
'/s/ Bruce Schuman
'/s/ Steve G. Shults
'Subscribed and sworn to before me this 18th day of April, 1973.
'/s/ Earle D. Jones'
Armed with a search warrant police officers went to the defendant's place of residence, searched his room, and discovered quantities of cocaine, morphine, methadone, amphetamines, and marijuana in a blue-green metal box. There was apparently no dispute that the box belonged to the defendant and that he had possession of illegal drugs. The defendant Deffenbaugh was arrested and charged with the five counts of possession of drugs as discussed above.
The defendant's motion to suppress the evidence found in his home was filed on June 1, 1973. In his motion the defendant alleged that the search of his motor vehicle and his person at the police station on April 16, 1973, was an illegal search since it was carried out without a search warrant and without probable cause; that the unlawful search on April 16, 1973, provided the information which brought about the search of the defendant's room on April 18, 1973; and that as a...
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