State v. Dugan

• Decision Date: 04 May 2012
• Docket Number: No. 106,152.,106,152.
• Citation: 47 Kan.App.2d 582,276 P.3d 819
• Parties: STATE of Kansas, Appellee, v. Troy E. DUGAN, Appellant.
• Court: Kansas Court of Appeals

47 Kan.App.2d 582

276 P.3d 819

STATE of Kansas, Appellee,

v.Troy E. DUGAN, Appellant.

No. 106,152.

Court of Appeals of Kansas.

May 4, 2012.

Syllabus by the Court

1. In reviewing a district judge's ruling on a motion to suppress, the appellate court accepts the factual findings if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence.

2. To further the protection against unreasonable searches and seizures, the Fourth Amendment to the United States Constitution requires warrants based on probable cause be presented under oath to a judicial officer and any warrant describe with particularity the places to be searched and the person or objects to be seized. The warrant requirement interposes an independent reviewingauthority—a judge—to assess the sufficiency of the grounds government agents advance for interfering with citizens or their property.

3. The rights secured in the Fourth Amendment are at their zenith when government agents attempt to enter a person's home. Except in carefully circumscribed situations, law enforcement officers violate the Fourth Amendment if they enter a dwelling without either a search warrant for the premises or an arrest warrant for a resident they reasonably believe will be found there. Those limited instances permitting warrantless entry generally require government agents to have probable cause coupled with particularized, exigent circumstances to breach the constitutional sanctity of a private residence.

4. The sufficiency of exigent circumstances to excuse the warrant requirement of the Fourth Amendment depends upon the totality of the relevant facts in a given case.

5. Probable cause may be coupled with an exigent circumstance requiring immediate law enforcement intervention. In effect, the exigent circumstance with its inseparable need for prompt action supplants the warrant requirement of the Fourth Amendment.

6. The courts have generally recognized four types of exigent circumstances that may obviate the warrant requirement: (1) preventing harm to law enforcement officers or others by capturing a dangerous suspect; (2) securing evidence in the face of its imminent loss; (3) hot pursuit of a fleeing suspect; and (4) thwarting escape of a suspect. Those categories of exigency are not exclusive, and the facts of a given case might support some different imperative rendering a search or seizure constitutionally reasonable under the Fourth Amendment without a warrant.

7. Hot pursuit comes into play as a warrant exception when law enforcement officers chase a person who then attempts to evade their efforts to arrest or otherwise take him or her into custody. The chase need not be lengthy.

8. Under the facts of this case, there was no hot pursuit when a police officer followed a suspect driving from the scene of a traffic offense but did not engage the emergency equipment on the patrol car to stop the suspect. The officer used the lights only after the suspect had driven into the garage of his home and had begun to close the garage door. The officer did not orally advise the suspect that he was under arrest or to stop.

9. Hot pursuit alone does not furnish an absolute exception to the warrant requirement of the Fourth Amendment, at the very least when the pursuit stems from a comparatively minor offense without aggravating circumstances implicating broader law enforcement or safety concerns. Hot pursuit simply presents one type of exigent circumstance to be evaluated as any other exigent circumstance might be—by looking at all of the relevant facts. In other words, hot pursuit does not hand law enforcement officers an automatic or per se exemption from the constraints of the Fourth Amendment.

10. The Platten factors, used to assess exigent circumstances, are considered and applied to the facts of this case. State v. Platten, 225 Kan. 764, 770, 594 P.2d 201 (1979). All of those factors need not be present, and those that are, need not point one way. They depict areas worthy of consideration in making an integrated analysis of the relevant factual circumstances. The analysis is guided by what a reasonable law enforcement officer would have understood from the circumstances at the time of the challenged search or seizure. It is not undertaken from an after-the-fact perspective looking at information that came to light as a product of the search or seizure or otherwise during any later investigation.

11. To qualify as an exigency, the potential loss of evidence—be it through destruction, concealment, or removal—must present an imminent threat rather than a mere possibility. The courts consider various circumstances in determining exigency, including: (1) the time needed to secure a search warrant; (2) the reasonableness of the officers' belief the evidence may be immediately lost; (3) potential danger to the officers guarding the site while awaiting a warrant; (4) whether those persons with possession of the evidence are aware of the officers' presence; and (5) the ease with which the evidence might be destroyed or hidden.

12. Under the facts of this case, there was no showing of an imminent loss of evidence creating exigent circumstances obviating the need for a warrant.

Edward C. Gillette, of Gillette Law Firm, P.A., of Mission, for appellant.

Samantha Clark, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

Before GREENE, C.J., ATCHESON, J., and BRAZIL, S.J.

ATCHESON, J.

The United States Constitution draws a line at the threshold of a person's home over which law enforcement officers may not step without a warrant from a judge or exigent circumstances so compelling as to override that fundamental right. The Fourth Amendment's prohibition against unreasonable searches of dwellings or seizures of their occupants reflects a tenet the founders considered essential to the ordered liberty they fought a war to achieve and then cherished as this nation matured. That prohibition is no less significant nearly two and a half centuries into this country's maturation. The comparatively mundane facts of this case belie the magnitude of the constitutional right and the significance of the constitutional issue—when government agents may claim exigency to override Fourth Amendment protections of citizens in their own homes.

I. Factual and Procedural History

The Douglas County District Court denied a motion to suppress evidence a Lawrence police officer obtained after she stuck her foot in a garage door to keep it from closing and then entered a private home to search and seize Defendant Troy E. Dugan based on a reported misdemeanor traffic offense. The district court found the officer's actions did not offend the Fourth Amendment to the United States Constitution. Although the question might be closer than some, we do not share the district court's tolerance for the governmental breach of a private residence and, therefore, reverse that ruling with directions the motion be granted.

The salient facts may be set forth in short order. About 1 p.m. on September 19, 2009, Dugan was driving his black SUV in downtown Lawrence when he rear-ended a sedan that had lawfully stopped at an intersection. Rather than stopping, checking on the welfare of the other driver, and exchanging insurance information as the law required, Dugan drove off. Several witnesses saw the collision and furnished general physical descriptions of Dugan. Someone caught the tag number on Dugan's SUV and informed the police.

The police dispatcher then put out a radio call with a description of the SUV, its tag number, Dugan's name and address, and the vehicle's involvement in a hit-and-run accident resulting in a personal injury. Leaving the scene of such an injury accident is a Class A misdemeanor under state law, K.S.A. 8–1602, and the comparable municipal ordinance.

Lawrence Police Officer Laurie Scott heard the dispatch and positioned her patrol car on a side street in anticipation the SUV would pass by her going from the scene of the collision to Dugan's residence. Scott's hunch proved prescient. An SUV matching the dispatcher's description passed, and Scott began to follow it. Scott saw no damage to the SUV and could not get close enough to make out the tag number. She did not engage the emergency equipment on her patrol car or otherwise attempt to stop the SUV. Scott later testified that the SUV may have sped up some, but she saw nothing suggesting any traffic violations as she followed.

The SUV made a turn into the driveway of the address identified as Dugan's. The driver apparently activated an automatic garage door opener and drove into the garage. Scott engaged the emergency lights on her patrol car after she pulled into the driveway. As the garage door was coming down, Scott confirmed the tag on the SUV matched the one in the dispatch. She got out of her car, approached the closing door, and stuck her foot beneath it, thereby triggering a safety mechanism causing the door to open. Scott entered the garage and confronted Dugan.

Dugan displayed signs of intoxication—he was unsteady on his feet; his speech was slurred; he had difficulty getting his driver's license in response to Scott's request; and he smelled of alcohol. After a second Lawrence police officer arrived, Dugan said he was aware of the collision and admitted having several beers. Dugan performed poorly on standard field sobriety tests. He was arrested and refused to take a breath test.

The Douglas County district attorney charged Dugan with felony driving under the influence in violation of K.S.A. 8–1567. Dugan had three past DUI convictions. He was also charged with several...