State v. Dye

• Decision Date: 05 February 1992
• Docket Number: No. 65046,65046
• Citation: 250 Kan. 287,826 P.2d 500
• Parties: STATE of Kansas, Appellee, v. Jerry E. DYE, Appellant.
• Court: Kansas Supreme Court

Page 500

826 P.2d 500

250 Kan. 287

STATE of Kansas, Appellee, v. Jerry E. DYE, Appellant.

No. 65046.

Supreme Court of Kansas Feb. 5, 1992.

Syllabus by the Court

1. A search warrant directed against a multiple occupancy structure generally will be held invalid if it fails to describe the particular room or unit to be searched with sufficient definiteness to preclude a search of other units. Following State v. Gordon, 221 Kan. 253, Syl. p 7, 559 P.2d 312 (1977).

2. An exception to the rule stated in Syllabus p 1 exists where the affidavit in support of the search warrant contains a sufficient description of the room or unit to be searched and the affiant is one of the officers executing the search warrant.

3. Under the facts of this case, a description in a search warrant is sufficient to indicate the proper scope of the search, where the search warrant directs the search of the rear apartment of a street address, which is identified in the affidavit as the defendant's apartment, and one of the officers executing the search warrant is the affiant who knows which of the two apartments was the defendant's.

Steven R. Zinn, Deputy Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

James K. Craig, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

ALLEGRUCCI, Justice:

Jerry Dye appealed his convictions by a jury of one count each of possession of cocaine, K.S.A.1991 Supp. 65-4127a, possession of marijuana, K.S.A.1991 Supp. 65- 4127b(a)(3), and possession of drug paraphernalia, K.S.A. 65-4152. The Court of Appeals found error in the admission of statements made by Dye and evidence found on him and reversed his convictions. 814 P.2d 43. We granted the State's petition for review.

Dye raises three issues in this appeal. He states that the "primary issue ... is the validity of [the] search warrant." The other issues raised are a defect in the drug paraphernalia count of the complaint and counsel's not being allowed to withdraw when he anticipated that he might become a witness.

In the Court of Appeals, the State conceded that the complaint was defective and that the conviction for the possession of drug paraphernalia should be overturned as a result. The Court of Appeals did not reach the third issue relating to defense counsel's motion to withdraw.

The Court of Appeals found reversible error with regard to the admission of evidence, but not on the ground urged by Dye. Dye argued that the warrant was deficient in not naming him or specifically identifying his apartment. The Court of Appeals found error in the admission of money, cocaine, and statements taken from Dye and made by him at the time the search warrant was being executed. The conviction for possession of cocaine was reversed because it was based solely on the cocaine found on Dye and his statement that it was cocaine. As to the conviction for possession of marijuana, the court said:

"Although it is a closer question whether, without the evidence and statements resulting from Dye's search, the jury would have found Dye guilty of possession of marijuana, we are not prepared to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the verdict on the possession of marijuana charge. We must reverse."

On the suppression issue raised at trial, the lack of specific identification of Dye's apartment, the parties agree on the following facts: Officer Blundell testified that there were two apartments and "another thing" which possibly could be considered an apartment at the rear of the Shorthorn Tavern building. The owner of the tavern testified that the building had two apartments plus a middle area which was used for storage. He also testified that at the time the search warrant was executed only Mr. Dye's apartment was occupied.

Blundell testified that he knew, and had known for four or five years, which apartment Dye lived in. Blundell variously indicated that the apartment was referred to as "apartment 2" and as the "back apartment." The City of Chetopa's utility records indicated that Dye lived in the "middle apartment at 102 North Sixth." There were no apartment designations posted on the premises.

Blundell testified that he had known Dye for 20 years. He had seen Dye going in and out of the apartment many times over a period of several years. Blundell was the affiant, he was one of the officers who searched Dye's apartment, and he informed the other officers which apartment was to be searched, although they also knew which apartment Dye occupied.

In the present case, the place to be searched was described in the warrant as "[t]he residence of 102 N. 6th Street in Chetopa, KS, an apartment in the rear of the Shorthorn Tavern." The description of the premises in the affidavit was as follows: "In the past two months, two purchases of marijuana have been made on Fridays from Jerry Dye at his residence, an apartment located at 102 N. 6th, in Chetopa Kansas."

The issue which was focused on in the district court and by the parties in their briefs in the Court of Appeals was whether the lack of specificity in identifying Dye's apartment in the warrant invalidated the search. Dye argued that the evidence should have been suppressed because the officers knew of the multi-unit character of the structure, but failed to conduct an investigation to obtain the specific designation of his apartment.

The State argued that any irregularity in the warrant was merely technical because Officer Blundell, the affiant and one of the executing officers, knew with certainty which apartment was occupied by Dye. The State also argued that, because there was no number on the apartment door and it was known by various designations, using an apartment number in the warrant would not have improved the specificity of the description. Furthermore, because Dye's apartment was the only one in which someone was living, the lack of specificity did not provide a "roving commission" for the police.

In State v. Gordon, 221 Kan. 253, 258, 559 P.2d 312 (1977), we found that "[i]t is constitutionally required that a search warrant shall 'particularly' describe the place to be searched." We held: "A search warrant directed against a multiple occupancy structure generally will be held invalid if it fails to describe the particular room or subunit to be searched with sufficient definiteness to preclude a search of other units." 221 Kan. 253, 559 P.2d 312, Syl. p 7.

We noted that a few courts had carved out exceptions to the rule that a search warrant lacking sufficient definiteness as to a subunit will be held invalid. With regard to these exceptions, this court found that "none of them, even if recognized, is applicable" in the circumstances of Gordon. 221 Kan. at 259, 559 P.2d 312.

Following the general rule as stated in Gordon, the Court of Appeals found the search warrant deficient but an exception to the rule was said to save the warrant in this case. It "provides that a slight 'deficiency in the warrant may be cured by a proper description in the supporting affidavit, although it is usually required that the affidavit be annexed or attached to the warrant.' 221 Kan. at 259 ." The Court of Appeals reasoned that the deficiency in the warrant is cured by the more specific description in the affidavit, even though there is nothing in the record to show that the affidavit was attached to the warrant, because the affiant also was an executing officer.

The Court of Appeals did not discuss or elaborate on its conclusion that the affidavit cured the defective description in the search warrant. The only additional fact relative to the description of the place to be searched was that it was the defendant's apartment. In Thomas v. State, 50 Md.App. 286, 437 A.2d 678 (1981), a similar question was before the court. There as here, the search warrant gave the correct street address of the apartment building but did not specify the apartment to be searched except that it was the defendant's apartment. The court upheld the validity of the search warrant, stating:

"The officers knew which building to enter because of the notation on the front of the search warrant. They knew which apartment to search because of the information in the attached affidavit in support of the warrant. This affidavit does not state the number of the apartment to be searched, but it adequately identifies the apartment by providing the name of the resident, Randolph Thomas, the appellant." 50 Md.App. at 293, 437 A.2d 678.

In State v. Kyles, 513 So.2d 265 (La.1987), both the affidavit and the search warrant gave the correct street number of the defendant's residence but did not indicate that there was more than one apartment at that address. The informant pointed out which apartment was the defendant's, and the officers waited until the defendant exited the apartment before they executed the search warrant. The court said: "Under these circumstances, there was little probability that the wrong place would be searched, and there was no violation of the particularity requirement." 513 So.2d at 270.

In United States v. Clement, 747 F.2d 460 (8th Cir.1984), the search warrant described the premises to be searched as " 'apartment of Vance Clements, No. 4 at 3300 Irvine Avenue.' " 747 F.2d at 461. The officers executing the warrant searched Apartment No. 3, which was the defendant's apartment. The court upheld the search warrant, stating:

"The test for determining the sufficiency of a warrant description is 'whether the place to be searched is described with sufficient particularity as to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.' United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.),...