State v. Hicks

Decision Date08 December 2006
Docket NumberNo. 93,602.,93,602.
Citation147 P.3d 1076
PartiesSTATE of Kansas, Appellant, v. Gordon R. HICKS, Appellee.
CourtKansas 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.

The opinion of the court was delivered by BEIER, J.:

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 See State v. Hicks, No. 93,602, 2005 WL 2840295, unpublished opinion filed October 28, 2005.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:

"2. Members of the Hoisington Police Department informed affiant that Gordon Hicks, who resides at 317 E. 5th St., Hoisington, Kansas, had drug activity going on at his residence. This information was obtained ... through information given to them by concerned citizens in the neighborhood. The citizens have informed officers there are a lot of people coming and going from Gordon Hick[s'] residence. One concerned citizen informed Officers that one night they went to Hick[s'] residence looking for their daughter and when Hicks opened the front door a large amount of smoke came out. The concerned citizen told Officers the smoke was Marijuana smoke. Another citizen living in the area told Officers Gordon Hicks changes his outside porch light with colored bulbs. The citizen stated when Hicks puts in a certain color people start stopping at Hick[s'] residence. In the past several weeks Affiant and other Officers of the Hoisington Police Department have been watching Gordon Hick[s'] residence. On April 5, 2003 at 1607 hrs. Jeff Shelor arrived at Hick[s'] house. Jeff Shelor was checked through [records] which indicated that Shelor was arrested for possession of Methamphetamine on June 14, 2000. On April 5, 2003 at 1700 hrs. and again at 1846 hrs. Eric Tauscher showed up at Gordon Hick[s'] residence. Eric Tauscher was checked through [records] which indicated that Tauscher was arrested on July 7, 2000 for Possession of Methamphetamine, Sale/Manufacturing other dangerous Non-Narcotic Drugs, and Possession of [Psuedoe]phedrine. A check of the criminal history records revealed that, on January 01, 2002, Eric Tauscher was placed in El Dorado Correctional Facility for Possession of Ephedrine.... On April 19, 2003 at 1907 hrs., Eric Tauscher returned to the residence again.

"3. On April 14, 2003 Affiant and Officer Israel Barrera of the Hoisington Police Department observed a large black trash bag behind Gordon Hick[s'] residence next to the alley. Affiant and Officer Barrera picked up the bag and brought it to the Hoisington Police Department to check the contents. In the bag Affiant and Officer Barrera ... located numerous brown and green stems and seeds. Affiant observed Officer Barrera field-[test] a stem and some seeds ... and g[e]t a positive test for Marijuana. On April 21, 2003 Affiant again drove in the alley behind Gordon Hicks' house and located another large black plastic trash bag next to the alley. This location is the normal place Gordon Hicks[ ] places his trash for [pickup] on Mondays, the normal trash day. Affiant brought the black bag back to the Hoisington Police Department and searched it. Inside the black bag Affiant found ... several brown and green stems and seeds and one roach (partial marijuana cigarette). Affiant field-tested one of the stems ... and got a positive test for Marijuana....

"4. Affiant ran Gordon Hicks through [records] and found that Gordon Hicks had been arrested and convicted on drug charges as follows: 05/20/1975 — Possession of Marijuana, 06-09-1995 — Possession [sic] Manufacture Drug Paraphernalia, 05-28-1997 — Sale of Methamphetamine and sale of Marijuana within 1000' of a school.

"5. A check of municipal records revealed that 317 E. 5th street Hoisington Kansas has utilities ... hooked up in the name of Lyle Hicks who is the deceased father of Gordon Hicks. The Hoisington Police Department Rolodex has the residence in the name of Gordon Hicks. Affiant and other Officers of the Hoisington Police Department have personal knowledge that Gordon Hicks resides at 317 E. 5th Street Hoisington Kansas."

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.

Standard of Review

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, "`the reviewing court is required to pay great deference to the issuing magistrate's finding of probable cause for the issuance of the warrant, and ... after-the-fact scrutinizing should not take the form of de novo review.' [Citation omitted.]" (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):

`The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit ..., including the "veracity" and "basis of knowledge" of [any] persons...

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