State v. Hicks
Decision Date | 08 December 2006 |
Docket Number | No. 93,602.,93,602. |
Citation | 147 P.3d 1076 |
Parties | STATE of Kansas, Appellant, v. Gordon R. HICKS, Appellee. |
Court | Kansas Supreme Court |
Rick J. Scheufler, special counsel, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellant.
Michael S. Holland, of Holland and Holland, of Russell, argued the cause, and Michael S. Holland II, of the same firm, was with him on the brief for the appellee.
This appeal addresses the sufficiency of an affidavit supporting a search warrant, including the appropriate standard for review of the issuing magistrate's decision.
Defendant Gordon R. Hicks was charged with three drug possession counts and one count of intent to distribute drugs within 1,000 feet of a school. His arrest followed police execution of a search warrant at his home.
Hicks moved to suppress the evidence seized, and the district judge granted the motion, ruling the affidavit supporting the warrant was insufficient. The State filed an interlocutory appeal, and the majority of the assigned Court of Appeals panel reversed the district judge's decision. See State v. Hicks, No. 93,602, 2005 WL 2840295, unpublished opinion filed October 28, 2005. Judge Nancy L. Caplinger dissented. We granted Hicks' petition for review.
This case began when Officer Joshua Brown, with 9 months' experience on the Hoisington police force, including work on two drug cases, presented an application for a search warrant for Hicks' home. Brown had executed the affidavit in support of the application. After reciting his qualifications, the affidavit read in pertinent part:
Judge Barry A. Bennington reviewed the application and affidavit and issued a search warrant for Hicks' residence.
On a later motion to suppress, Judge Hannelore Kitts held that under the totality of the circumstances the affidavit "[did] not provide `an indicia of probable cause' to conclude illegal drugs would be found at Defendant's residence." Specifically, Judge Kitts concluded the affidavit did not contain sufficient substantial information because there was no indication regarding the informants' veracity or bases of knowledge; there was no time frame concerning when the informants made their reports or when the suspicious activities were observed; and there was no corroboration of informants' statements. Also, the mere fact that two visitors had prior drug-related criminal histories was unpersuasive. Further, the contents of the two trash bags did not provide corroboration because defendant denied ownership of the bags; police did not observe defendant placing the bags in the alley; and there was nothing linking the evidence in the bags to defendant. Judge Kitts noted that "anyone could have deposited the bags at this location."
Judge Kitts also held that the good faith exception to the exclusionary rule of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, reh. denied 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984), was inapplicable because there was so little indicia of probable cause in the affidavit that it was unreasonable for the executing officers to believe the warrant was valid.
On the State's interlocutory appeal, Judge G. Joseph Pierron and Senior Judge John J. Bukaty were in the majority. They determined that Judge Kitts impermissibly performed a de novo review of the warrant's supporting affidavit. They reasoned that review of such affidavits should be deferential to the issuing magistrate and that, although this case was "a close call, when viewed in the light of the totality of the circumstances, the issuing magistrate had a substantial basis for concluding probable cause existed for issuing the warrant." Hicks, slip op. at 17. They reversed the suppression of the evidence on that basis. They also stated that reversal would have been appropriate under Leon. Hicks, slip op. at 18.
In her dissent, Judge Caplinger concluded that the affidavit, at best, gave rise to suspicion of drug activity, but it did not establish the existence of probable cause. She asserted that the Court of Appeals majority impermissibly relied on inferences rather than facts in the record. Hicks, slip. op. at D-1.
Initially, we must acknowledge some inconsistency in the standard of review recited and applied in our previous cases of this type.
One formulation, invoked in this case by the Court of Appeals majority, requires a reviewing court to ensure that the magistrate that issued the search warrant had a substantial basis for concluding probable cause existed. In making its determination, (Emphasis added.) Hicks, slip. op. at 3.
This formulation is the one clearly applied by us in State v. Gilbert, 256 Kan. 419, 886 P.2d 365 (1994). In Gilbert, a magistrate had issued a search warrant, and a district court judge had suppressed the fruits of the search, holding the affidavit supporting the search warrant application insufficient. The Court of Appeals upheld the district judge's decision. Gilbert, 256 Kan. at 425, 886 P.2d 365.
On review, we first differentiated the standard of review to be applied in a case determining the propriety of a warrantless search and one in which the reviewing court was examining a magistrate's decision to issue a search warrant. In the latter case, we said:
"Where the district court, itself, is reviewing the propriety of the issuance of a search warrant by a magistrate, a district court and any other subsequent reviewing court assume a different role. The determination is made by examining the warrant and its supporting affidavit to determine if the issuing magistrate had a substantial basis for concluding that probable cause existed. As was held in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and followed in State v. Abu-Isba, 235 Kan. 851, 685 P.2d 856 (1984):
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