State v. Harris
| Decision Date | 19 March 1999 |
| Docket Number | No. 78,434,78,434 |
| Citation | 975 P.2d 1228,26 Kan.App.2d 42 |
| Parties | STATE of Kansas, Appellee, v. Darrel R. HARRIS, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The fact that a seizure of property by law enforcement officers occurs in the civil context does not render the Fourth Amendment inapplicable.
2. In this case, the defendant's Fourth Amendment rights were implicated by the entry into his dwelling by law enforcement officers executing a writ of assistance.
3. K.S.A.1998 Supp. 60-206 is applicable to a writ of assistance, and computation of the 10-day period for the execution and return of the writ must be done in the manner provided by that statute.
4. Due process does not require that a party be given notice and a hearing prior to the issuance of a writ of assistance.
5. Law enforcement officers who enter a dwelling under a properly issued and valid writ of assistance are legally in the dwelling and may seize any contraband in plain view. Neither the entry nor the seizure is unreasonable as a matter of law.
6. In determining the legality of a search and/or seizure, reasonableness is still the ultimate standard under the Fourth Amendment.
7. Under the facts of this case, even if the evidence seized by law enforcement officers were held to be an unreasonable search and seizure, the evidence still would have been admissible because exclusion of such evidence would not serve the purpose of the exclusionary rule and the officers had no reason to believe that their search and seizure was or might have been unconstitutional.
Rebecca E. Woodman, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for the appellant.
Frederick B. Campbell, assistant county attorney, and Carla J. Stovall, attorney general, for the appellee.
Before BRAZIL, C.J., LEWIS, J., and ROGG, S.J.
Defendant appeals from the order of the trial court refusing to suppress evidence. The evidence in question was found in a residence in plain view of officers who were in the residence to execute a writ of assistance.
The home in which the evidence was found had been mortgaged to a financial institution. Defendant became delinquent in payment of the note which was secured by the mortgage. In due time, the financial institution which held the mortgage began foreclosure proceedings. These proceedings were instituted in 1993 in Anderson County and are found in case No. 93-C-3.
Defendant was personally served in the foreclosure proceeding but did not appear in person or by counsel until after a default judgment had been entered against him. Defendant then filed a motion to set aside the default judgment. However, defendant later withdrew this motion and permitted the default judgment to stand. The sale was confirmed, and a sheriff's deed was issued to the purchaser. The mortgage was foreclosed, and a redemption period of 6 months was set by the trial court. Defendant was represented by counsel on the motion to set aside the default judgment.
Long after the redemption period had expired, defendant refused to vacate the premises. The journal entry of foreclosure contained the following language:
"IT IS FURTHER ORDERED that upon praecipe of the holder of said Sheriff's Deed, the Clerk of this Court shall issue to the Sheriff of Anderson County, Kansas, a Writ of Assistance directing said Sheriff to place the holder of said Sheriff's Deed in possession of the above-referenced real estate and the improvements thereof."
In 1996, the attorney for the holder of the sheriff's deed filed the praecipe discussed above, and a writ of assistance was issued.
The writ of assistance issued in this case reads as follows:
situated in Anderson County, Kansas.
/s/ Louann Maley" (Emphasis added.)
Of particular importance to our decision is the requirement that the writ of assistance be executed within 10 days of its receipt by the sheriff. The writ of assistance was received by the sheriff on May 1, 1996.
On May 13, 1996, five county law enforcement officers went to the dwelling of defendant to execute the writ of assistance. The officers first attempted to gain entrance into the house by knocking on the door, and yelling through the door and the windows, but no one was in the house. The officers entered the house under the writ of assistance, intending to execute that order. While engaged in a general search for their own safety and other purposes, the law enforcement officers discovered, in plain view, drugs and other items of contraband in the dwelling occupied by defendant.
After the contraband was discovered, the police officers halted the search and obtained a search warrant under which they continued their search and seized the evidence in question.
The search yielded a significant amount of contraband. We will not detail those items specifically. However, we observe that defendant was convicted of cultivation of marijuana, possession of cocaine, no drug tax stamp, possession of drug paraphernalia, and possession of marijuana.
All of the evidence defendant seeks to suppress came from the dwelling in question and was discovered as a result of execution of the writ of assistance and seized under the search warrant.
Defendant argues that the writ of assistance was defective and that the seizure of any items of evidence from the house under the search warrant should be suppressed as fruit of the poisonous tree. Defendant argues that the officers were not legally on his premises when they observed the drugs in plain view. Defendant argues that the writ of assistance was defective and void. We do not agree, and we affirm defendant's convictions.
First, it is clear that the fact that a "seizure occurred in [a] civil context does not render the Fourth Amendment inapplicable." Glass v. Mayas, 984 F.2d 55, 58 (2d Cir.1993); see Soldal v. Cook County, 506 U.S. 56, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992).
In Soldal, two law enforcement officers participated in the eviction of the plaintiff from his mobile home and in the seizure and removal of that mobile home from the lot in which it was parked. The facts of that case indicate that the law enforcement officers knew that the landlord had no eviction order and that his actions were illegal. Despite this fact, they assisted the landlord in evicting the plaintiff and in removing his mobile home.
The plaintiff brought a § 1983 suit against the law enforcement officers and the manager of the trailer park on the grounds they had violated his right to be secure from unreasonable searches and seizures.
The 7th Circuit Court of Appeals sustained a trial court decision granting summary judgment to the defendant. See Soldal v. County of Cook, 923 F.2d 1241, reh. granted 931 F.2d 445, reaffirmed en banc 942 F.2d 1073 (7th Cir.1991).
The basis of the decision by the 7th Circuit Court of Appeals was that the removal of the mobile home did not constitute a seizure for purposes of the Fourth Amendment or a deprivation of due process for purposes of the Fourteenth. The appeals court concluded that because the seizure was not made in the course of public law enforcement and because it did not invade Soldal's privacy, it was not a seizure as contemplated by the Fourth Amendment.
The Supreme Court disagreed with the 7th Circuit and reversed its decision. The Court concluded that when State action invades the Fourth Amendment rights of a citizen, these rights apply in either a criminal or a civil context.
In the instant matter, there is no question that law enforcement officers of the state of Kansas were...
To continue reading
Request your trial
-
State v. Mendez, 86,751
...it was not a Fourth Amendment violation which would require the evidence obtained to be suppressed, citing State v. Harris, 26 Kan. App. 2d 42, 50-51, 975 P.2d 1228, rev. denied 267 Kan. 890, cert. denied 528 U.S. 957 With these contentions of the parties in mind, we first set forth the app......