State v. Gordon, 48339

• Decision Date: 07 January 1977
• Docket Number: No. 48339,48339
• Citation: 221 Kan. 253,559 P.2d 312
• Parties: STATE of Kansas, Appellant, v. Ersel F. GORDON, Appellee.
• Court: Kansas Supreme Court

Page 312

559 P.2d 312

221 Kan. 253

STATE of Kansas, Appellant, v. Ersel F. GORDON, Appellee.

No. 48339.

Supreme Court of Kansas.

Jan. 7, 1977.

Syllabus by the Court

1. The constitutional guaranties against unreasonable search and seizure protect an aggrieved person's property, not property in which he neither has nor claims any ownership or interest. To protect this interest one must have standing to object to the use of evidence in a criminal proceeding against him on the ground of an illegal search and seizure.

2. Bases for obtaining standing to challenge a search warrant include: (1) Ownership or possessory interest in the property seized; (2) ownership or possessory interest in the premises searched, or (3) reasonable expectation of freedom from governmental intrusion on the premises.

3. Where evidence is being sought for crimes against an employer, an employee has no expectation of freedom from intrusion of governmental searches of the employer's premises initiated by the employer and no standing to object to governmental search and seizure, except as to areas specifically assigned for the employee's exclusive personal use.

4. It is constitutionally required that a search warrant shall particularly describe the place to be searched.

5. General or blanket warrants which give the executing officers a roving commission to search where they choose are forbidden.

6. A search warrant may not ordinarily authorize the search of multiple premises owned or occupied by different persons.

7. 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.

8. In an interlocutory appeal by the state from an order suppressing evidence obtained under search warrants in a multiple occupancy building it is held: (1) Defendant had no standing to object to the search and seizure as to items taken in certain described areas, and (2) as to evidence obtained from areas assigned for defendant's exclusive use the search warrants were impermissibly overbroad in the location of the area to be searched.

Kiehl Rathbun, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Margaret W. Jordan, Dist. Atty., and William P. Coates, Jr., Asst. Dist. Atty., were on the brief for appellant.

David J. Waxse, Payne & Jones, Chartered, Olathe, argued the cause and was on the brief for appellee.

HARMAN, Commissioner:

This is an interlocutory appeal by the state from an order suppressing evidence obtained under search warrants.

The state charged defendant Ersel F. Gordon with sixteen counts of felonious theft and two counts of forgery. The investigation which led to these charges involved issuance of two search warrants which, with the resulting searches, are the focus of this appeal.

The parties stipulated to the facts at the hearing of the defendant's motion to suppress. At the time of the alleged crimes defendant Gordon was administrator of a local retirement housing project known as 'Lakeview Village', operated by Evangelical Village and Bible Conference, Inc. which was the victim of the alleged crimes. The village, located on approximately seventy-five acres in Lenexa, Kansas, encompassed a highrise building, with the address 9100 Park Avenue, Lenexa, Kansas, which contained 189 apartments, twenty-four four-polex living units, lounges, dining rooms, shops of various kinds, storage areas for tenants and business offices. Each resident of Lakeview Village had a lifetime right of occupancy of certain quarters. Each occupant of a garden apartment had an individual mailing address. Approximately 189 persons resided in Lakeview Village in October, 1974, of which about 159 shared the 9100 Park Avenue address. As administrator defendant Gordon was responsible to the board of directors of Evangelical Village and Bible Conference, Inc., for all the Village's operations and property.

The administrative offices consisted of two adjoining rooms, one a large office containing secretarial and sales personnel desks with no private offices, designated by the parties as office A, and the second, designated office B, a slightly smaller room which contained a conference table and defendant's private desk, credenza and file cabinet. During October, 1974, there was normally no restriction during business hours on ingress and egress between the two rooms as to administrative employees at the Village. Both rooms were customarily locked except during business hours. As administrator defendant Gordon used office B as his office and kept therein certain property and documents not related to the operation of Lakeview Village.

On October 25, 1974, Johnson county law enforcement officers obtained the first of the search warrants in question. It directed seizure of 'all records pertaining to Lakeview Village Checking Accounts and records and books of account and business of Lakeview Village'. The locations to be searched were stated to be in Johnson county, Kansas, as follows: 'Lenexa State Bank; Lakeview Village, 9100 Park Avenue, Lenexa, Kansas; and Southgate State Bank, Prairie Village, Kansas.'

Upon arrival at Lakeview Village the officers proceeded directly to the administrative offices in the highrise building. They entered or searched no other rooms, areas or residences. In the offices they obtained certain items of personal property listed on the return to the warrant. After a discussion with the attorney for Lakeview Village the officers returned to the magistrate court and obtained an additional search warrant. This warrant was identical to the first except that it contained an additional directive to seize 'personal papers and property of Ersel F. Gordon'. The officers then returned to Lakeview Village and seized personal property as shown in the return of the second warrant. The seized items were taken from office A, office B and a records' storage area in the basement of the highrise building. We are told that seizure included a bank book, tape recording and personal items taken from defendant's desk, credenza and file cabinet.

The trial court ruled that defendant Gordon had standing to challenge the searches and seizures and that they were unlawful because the warrants authorizing them were facially invalid for overbroadness as to the area to be searched inasmuch as a multiple occupancy structure was involved.

We consider first the standing issue as it relates to office A and the basement storage area. The state concedes in its brief and in oral argument that defendant does have standing to challenge the search of his private desk, credenza and file cabinet located in office B and we need not be further concerned with the standing issue as to items taken from them. The stipulation of facts does refer to these depositories as defendant's private desk, credenza and file cabinet and it states that in office B he maintained certain property and documents not related to the operations and property of Lakeview Village. (The state says a written record was made by the officers at the time of the search as to the exact location from which each seized article was taken.)

The fourth amendment to the federal constitution and section 15 of the Kansas bill of rights secure the people against unreasonable searches and seizures of their These guaranties protect an aggrieved person's property, not property in which he neither has nor claims any ownership or interest. To protect this interest one must have standing to object to the use of evidence in a criminal proceeding against him on the ground of an illegal search and seizure (State v. Boster, 217 Kan. 618, 539 P.2d 294). In State v. Summer, 210 Kan. 802, 504 P.2d 239, we recognized three bases for obtaining standing to challenge a search warrant: (1) Ownership or possessory interest in the property seized; (2) ownership or possessory interest in the premises searched, or (3) reasonable expectation of freedom from governmental intrusion on the premises.

Defendant Gorden asserts he has the necessary standing under precedent stated in Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154. There DeForte, a vice-president of a local union, was indicted on charges of conspiracy, coercion and extortion in that he had misused his union office to 'organize' owners of juke boxes and compel them to pay tribute. The union had refused to comply with a subpoena duces tecum whereupon law enforcement officers, without a search warrant, conducted a search of the union's office and seized papers from an office shared by DeForte and other union officials. DeForte did not claim that the office was reserved for his personal use but he did have custody of the papers at the moment of their seizure. In discussing whether DeForte had fourth amendment standing, the court first recognized that since the papers seized did not belong to DeForte he could have personal standing only if, as to him, the search violated the 'right of the people to be secure in their . . . houses . . ..' The word 'houses' is not to be taken literally, the court explained, and the constitutional protection may extend to commercial establishments (392 U.S. at 367, 88 S.Ct. at 2123). The court continued:

'Furthermore, the Amendment does not shield only those who have title to the searched premises. It was settled even before our decision in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, that one with a possessory interest in the premises might have standing. See, e. g., United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59. In Jones, even that requirement was loosened, and we held that 'anyone legitimately on premises where a search occurs may challenge its legality . . . when its fruits are proposed to be used against him.' 362 U.S., at 267, 80 S.Ct. at 734. The Court's recent decision in Katz v. United States, 389...