State v. Hunter

• Docket Number: 125,385
• Decision Date: 30 June 2023
• Parties: State of Kansas, Appellant, v. Michael G. Hunter, Appellee.
• Court: Kansas Court of Appeals

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State of Kansas, Appellant, v. Michael G. Hunter, Appellee.

No. 125,385

Court of Appeals of Kansas

June 30, 2023

NOT DESIGNATED FOR PUBLICATION

APPEAL FROM NESS DISTRICT COURT; BRUCE T. GATTERMAN, JUDGE.

Jacob T. Gayer, county attorney, and Derek Schmidt, attorney general, for appellant.

No appearance by appellee.

Before GREEN, P.J., HURST, J., and TIMOTHY G. LAHEY, S.J.

MEMORANDUM OPINION

PER CURIAM

The State appeals the district court's suppression of drug evidence found in Michael G. Hunter's mobile camper during the execution of a search warrant. The district court found that a K-9 search of the real estate on which the camper was parked was unlawful. Without the canine search the district court found the search warrant affidavit lacked probable cause. Because the property owner, Hunter's grandfather, consented to the canine search of his property we find the district court erred by declining to consider it in determining probable cause. We therefore reverse the district court's order suppressing the evidence and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The district court's memorandum decision sets forth the following summary of facts leading up to the issuance of a search warrant for Hunter's motor home:

"The relevant facts in this case are that Byron Hunter [Hunter's grandfather] is the owner of property at North Iowa [Street], Ness City, Kansas. The property is essentially a vacant lot, but contains several out buildings and on the date in question, a motor home belonging to Michael G. Hunter was also located on the property. The Defendant, according to testimony of Byron Hunter at the suppression hearing, had been staying on the property, rent free, but with the permission of Byron Hunter. On August 3 2020, Byron Hunter signed a document shown as State's Exhibit 1, titled 'Permission to Search'. The document is a form document and authorized Undersheriff Tanksley to search 'my residence' (there was no residence of Byron Hunter on the property), or other real property located at . . . North Iowa Street, Ness City, Kansas, and for a 'K9 sniff' to include garage and 'my motor vehicle' (Byron Hunter had no motor vehicle on the property), namely 'any on property'.

"Tanksley had conducted a routine drive by of the property through public streets and alley way and observed a high volume of known drug users entering and leaving the property. In the affidavit in support of issuance of a search warrant prepared subsequent to the free air sniff, Tanksley identified two (2) people telling him of drug activity, but provided no corroboration of these statements within the affidavit.

"Tanksley described the motor home situated upon the premises as an older motor home, self-contained, and mobile. As he entered the property on August 3, 2020, Tanksley searched the separate garage and then moved across the lot with his K9 to the front of the motor home, and then straight back along the side of the motor home to a passenger rear door with a stair case leading to the door. Here, his K9 'hit' on the location. Tanksley did not enter the motor home, but left to prepare an affidavit and application for search warrant, which was presented to District Magistrate Judge R. Scott Barrows."

Police found methamphetamine in Hunter's motor home when the search warrant was executed. Hunter was charged with possession of methamphetamine, in violation of K.S.A. 2020 Supp. 21-5706(a), and possession of drug paraphernalia, in violation of K.S.A. 2020 Supp. 21-5709(b)(2). Hunter moved to suppress the drug evidence found in his camper.

Before the district court, Hunter challenged the search warrant, contending the affidavit supporting the search warrant lacked probable cause. He specifically challenged the constitutionality of the K-9 search, noting that the Fourth Amendment to the United States Constitution protects the curtilage of a home. Relying on Florida v. Jardines, 569 U.S. 1, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), Hunter contended that his camper was his residence and the "free-air" sniff by the dog around his camper invaded the curtilage of his home so it required a search warrant. The district court agreed and granted Hunter's motion to suppress. The court held that the canine search violated Hunter's Fourth Amendment rights and that, without the K-9 search, the remaining information in the application for search warrant did not establish probable cause for the search of Hunter's motor home. The district court also held that no exceptions applied to cure this defect in the application for a search warrant.

The State timely appeals.

ANALYSIS

The State argues that the district court erred when it held that Hunter had a reasonable expectation of privacy within the curtilage of his camper, and asserts that Hunter's grandfather, Byron Hunter (Grandfather), the owner of the real property, had authority to consent to a search of the property. Alternatively, the State argues that the district court should have applied the automobile exception to the search warrant requirement, that even without the K-9 search the affidavit established probable cause, and finally, that the good-faith exception applied even in the absence of a warrant. Hunter has filed no response to this appeal.

Standard of Review

"On a motion to suppress, an appellate court generally reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and reviews the ultimate legal conclusion de novo." State v. Cash, 313 Kan. 121, 125-26, 483 P.3d 1047 (2021). In reviewing the factual findings, an appellate court does not reweigh the evidence or assess the credibility of witnesses. State v. Talkington, 301 Kan. 453, 461 345 P.3d 258 (2015).

The Fourth Amendment prohibits unreasonable searches and seizures. Warrantless searches are per se unreasonable unless they fall within an exception to the warrant requirement. State v. Perkins, 310 Kan. 764, 767, 449 P.3d 756 (2019). The judicially created exclusionary rule is designed "to deter unlawful searches and seizures by prohibiting the prosecution's use of unconstitutionally obtained evidence." 310 Kan. at 767. For the exclusionary rule to apply, there must first be a constitutional violation. State v. Hubbard, 309 Kan. 22, 33, 430 P.3d 956 (2018). The rule applies when it would act as a deterrent. State v. Pettay, 299 Kan. 763, 769, 326 P.3d 1039 (2014) (exclusionary rule is a deterrent measure and not a personal constitutional right).

A warrantless search violates the Fourth Amendment unless an exception applies-such as consent to the search. Perkins, 310 Kan. at 767-68. The State has the burden of establishing the scope and voluntariness of the consent to search. State v. Ransom, 289 Kan. 373 Syl. ¶ 2, 212 P.3d 203 (2009). To establish valid consent, the State must prove: (1) clear and positive testimony that consent was unequivocal, specific, and freely given; and (2) the absence of duress or coercion, express or implied. State v. Daino, 312 Kan. 390, 397, 475 P.3d 354 (2020). Whether consent is voluntary is an issue of fact which appellate courts review to determine if substantial competent evidence supports the district court's findings. State v. James, 301 Kan. 898, 909, 349 P.3d 457 (2015).

If the parties do not dispute the material facts, the suppression issue is solely a question of law. State v. Spagnola, 295 Kan. 1098, 1104, 289 P.3d 68 (2012).

The district court found that the area around Hunter's camper was curtilage.

The State argues that the district court erred when it determined that the area where the free-air sniff took place was part of the curtilage of Hunter's home. The Fourth Amendment protects the curtilage of a home. See United States v. Dunn, 480 U.S. 294, 304, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). Curtilage is the "area immediately surrounding and associated with the home" itself for Fourth Amendment purposes. Talkington, 301 Kan.453, Syl. ¶ 6. "It harbors the intimate activity associated with the sanctity of a person's home and privacies of life. The extent of curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself." 301 Kan. 453, Syl. ¶ 6. Four factors resolve whether a particular area is curtilage: (1) the proximity of the area to the home, (2) whether the area is enclosed, (3) how the area is used, and (4) the steps taken by the resident to protect the area from observation by people passing by. Dunn, 480 U.S. at 301. The district court found that the canine sniff invaded the curtilage of Hunter's home but did not explicitly consider the Dunn factors.

Only one of the four Dunn factors weighs in favor of finding curtilage here. Undersheriff Wesley Tanksley testified that he took the canine up to the door, stating that there was a step hanging out but that they "could stretch around it." This testimony indicates a close proximity to the home. As noted above, curtilage is the area immediately surrounding and associated with the home. Other than proximity, the record is bereft of evidence that any part of the surrounding lot was harboring "intimate activity associated with the sanctity of [Hunter's] home and privacies of life." Talkington, 301 Kan. 453, Syl. ¶ 6. On the contrary, the suppression hearing testimony affirmatively establishes otherwise.

The area was not enclosed or demarcated in any fashion by any sort of fence or other kind of marking. There was no landscaping, were no items of personal property in the area and the area was open and visible to people passing by the property from the street. In short, there was no objective indication it was used for any of the "'intimate...