State v. Gilbert, 77291

• Decision Date: 25 July 1997
• Docket Number: No. 77291,77291
• Citation: 24 Kan.App.2d 159,942 P.2d 660
• Parties: STATE of Kansas, Appellant, v. Randolph S. GILBERT and Poppy Joleen Gilbert, Appellees.
• Court: Kansas Court of Appeals

Page 660

942 P.2d 660

24 Kan.App.2d 159

STATE of Kansas, Appellant, v. Randolph S. GILBERT and Poppy Joleen Gilbert, Appellees.

No. 77291.

Court of Appeals of Kansas.

July 25, 1997.

Review Denied Sept. 23, 1997.

Syllabus by the Court

1. Searches and seizures conducted by the State outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth and Fourteenth Amendments to the United States Constitution, subject only to a few specifically established and well-delineated exceptions. Absent one of these exceptions, the seizure of items not particularly described in a search warrant is unconstitutional.

2. Probable cause alone is not sufficient to justify a warrantless search or entry into a private residence. In addition to probable cause, exigent circumstances must exist, which make an immediate warrantless search imperative.

3. A report of domestic violence does not per se establish exigent circumstances justifying a warrantless entry into a private residence. Each case must be decided upon its particular facts and circumstances.

4. In reviewing the suppression of evidence by a trial court, an appellate court uses the substantial competent evidence standard of review for the factual underpinnings of the decision and reviews the ultimate legal decision drawn therefrom de novo with independent judgment.

Thomas R. Stanton, Assistant County Attorney, Julie McKenna, County Attorney, and Carla J. Stovall, Attorney General, for appellant.

James L. Sweet, of Sweet & Sheahon, and Roger D. Struble, of Blackwell, Blackwell & Struble, Salina, for appellees.

Jared S. Maag, Assistant Attorney General, for amicus curiae Attorney General Carla J. Stovall.

Before BRAZIL, C.J., MARQUARDT, J., and EDWARD E. BOUKER, District Judge, Assigned.

EDWARD E. BOUKER, Judge:

The State brings this interlocutory appeal challenging the district court's decision to grant the motions of Randolph S. Gilbert and Poppy Joleen Gilbert to suppress evidence obtained during a search of their residence.

Randolph and Poppy were each charged with three counts of endangering a child, contrary to K.S.A. 21-3608; one count of possession of marijuana, contrary to K.S.A.1995 Supp. 65-4162(a)(3); one count of possession of paraphernalia, contrary to K.S.A. 65-4152; and one count of possession of cocaine, contrary to K.S.A.1995 Supp. 65-4160. Randolph was also charged with two counts of battery, contrary to K.S.A.1994 Supp. 21-3412(a).

Prior to trial, Randolph and Poppy filed separate motions to suppress. On July 1, 1996, a hearing was held, and the trial court granted the motions. The State appeals.

On January 24, 1996, police officers Patrik W. Goss and Shari Lanham responded to a report of a domestic dispute. Christina Marie Simms, who had made the report, appeared to be very upset, nervous, and worried about getting the police officers to go to the Gilberts' trailer, which was about a half a block away.

Simms told the police that while she was at the Gilberts, Randolph had hit both her and Poppy. Both officers testified that Simms had a big red mark and a scratch on her neck. Officer Goss testified that initially Simms told the police that Poppy had been hit, but that it was later determined that Randolph had slapped Poppy.

Upon arriving at the trailer, it was clear to Officer Goss that some sort of disturbance had taken place as there were several broken beer bottles in the street and driveway and a trash dumpster had been overturned. Officer Goss testified that the beer bottles had to have been broken recently because the spilled beer had not yet frozen, even though the temperature that night was well below freezing. Officer Lanham testified that the trailer had a window that was broken.

As Officer Goss approached the Gilberts' trailer, Poppy came to the front door, saying, "He's not here, he's not here." Officer Goss testified that it was obvious that Poppy was extremely upset and had been crying. When Officer Goss asked Poppy if Randolph was in the trailer, she replied, "You're not coming in here."

Officer Goss then placed his hand on Poppy's shoulder and moved her aside, entering the trailer. Officer Goss admitted that he went into the trailer against Poppy's will.

Officer Goss testified regarding why he went into the trailer:

"Based on the information from Ms. Simms, Ms. Gilbert's reactions before I even asked her anything was 'He's not here, you're not coming in here.' All that, the demeanor, her--it was obvious that a domestic violence had taken place. Based on the information I had received from my original reporting party, there was no doubt in my mind I was going in there to make sure everything was okay and check the welfare before I left."

Officer Goss also testified that he went into the trailer to make sure that Randolph was no longer inside and that everyone was all right.

During cross-examination, Officer Goss admitted to testifying at the preliminary hearing that his sole purpose for going into the trailer was to look for Randolph. Officer Goss also admitted that Poppy had not given him any indication that Randolph was inside the trailer other than her defensiveness. Officer Goss also testified that he has been involved in domestic violence situations in which the victim would not allow him to enter the residence because he or she was hiding the abuser.

When Officer Goss went into the master bedroom, he noticed that there was a light coming out from underneath the closet door. Believing that Randolph was hiding in the closet, Officer Goss drew his gun and opened the closet door. Instead of finding Randolph, Officer Goss found marijuana plants, which were being grown in the closet.

After checking the rest of the trailer for Randolph, Officer Goss completed the domestic violence investigation. Officer Goss testified that when he saw Poppy in a better light, he noticed that she had a swollen lip and blood on her shirt. At first, Poppy told Officer Goss that Randolph had hit her, but then she changed her story and told him that she had bitten her lip during the argument.

The drug task force was called and a search warrant was obtained.

At the suppression hearing, the State presented the testimony of Nicky Ludes and Sandra Wilcox, employees of the Domestic Violence Association of Central Kansas, who both testified that many victims of domestic violence are dependent upon the abuser both emotionally and financially and, therefore, often attempt to protect the abuser.

Lieutenant Carson Mansfield of the Salina police department testified that concerning domestic violence situations, police officers are generally trained to identify and separate the parties involved and to check out the location to see if anyone has been hurt. Lieutenant Mansfield also testified that police officers are trained to check a residence without a warrant, if they have cause to believe that a domestic violence situation exists.

In a domestic violence situation, safety is the primary concern; therefore, police officers are trained to go inside a residence to rule out that there is another injured party inside the house or that the perpetrator is inside, threatening the victim to get rid of the police. Mansfield testified that police officers are also trained to check a residence because it is sometimes difficult to identify the victim.

After hearing extensive closing arguments, the trial court took the matter under advisement. More than a week later, the trial court issued a memorandum decision, which stated, in part:

"The Court finds that Officer Goss's entry into the defendants' home without a warrant for arrest to be in violation of those rights guaranteed [them] by the Fourth Amendment of the Constitution of the United States and the laws of Kansas. On balance, Fourth Amendment protection must prevail over the State's argument that exigent circumstances exist per se in domestic violence cases. This Court acknowledges and appreciates the difficulty and dangers encountered by law enforcement officers investigating domestic violence. However, this Court sees no justification in abridging Fourth Amendment rights regardless of the kind of violation which takes place."

Our standard of review is set forth in State v. Webber, 260 Kan. 263, Syl. p 3, 918 P.2d 609 (1996), cert. denied --- U.S. ----, 117 S.Ct. 764, 136 L.Ed.2d 711 (1997):

"In reviewing a trial court decision regarding the suppression of evidence, we review the factual underpinnings of the decision by a substantial competent evidence standard of review and review the ultimate legal decision drawn from those facts de novo with independent judgment."

In the present case, the police officers initially entered the Gilberts' home without a warrant.

"Searches conducted by the State outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th Amendment--subject only to a few specifically established and well-delineated exceptions. Absent one of these exceptions the seizure of items not particularly described in a search warrant is unconstitutional." State v. Galloway, 232 Kan. 87, Syl. p 1, 652 P.2d 673, cert. denied 475 U.S. 1052, 106 S.Ct. 1278, 89 L.Ed.2d 586 (1986).

See State v. Platten, 225 Kan. 764, Syl. pp 3 and 4, 594 P.2d 201 (1979).

In Monroe v. Darr, 221 Kan. 281, 287, 559 P.2d 322 (1977), the Kansas Supreme Court stated: "Probable cause alone is not sufficient to justify a warrantless search or entry into a private residence. In addition to probable cause it is necessary for the police officer to show exigent circumstances which make an immediate warrantless search imperative."

In determining whether exigent circumstances existed, the Platten court relied upon the nonexclusive list of factors set forth in United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert. denied 439 U.S. 913, 99 S.Ct. 283, 58 L.Ed.2d 259 (1978):

"(1) the gravity or violent...