State v. Jackson, 104,309.

Citation260 P.3d 1240,46 Kan.App.2d 199
Decision Date29 July 2011
Docket NumberNo. 104,309.,104,309.
PartiesSTATE of Kansas, Appellee,v.Bobbie Jo JACKSON, Appellant.
CourtCourt of Appeals of Kansas
OPINION TEXT STARTS HERE
Syllabus by the Court

1. Generally, on a motion to suppress evidence, the appellate court reviews the factual basis of the trial court's decision for substantial competent evidence, and the ultimate legal conclusion drawn from those facts raises a question of law requiring de novo review. However, on a motion to suppress evidence where the facts are undisputed, the appellate court exercises unlimited de novo review of the district court's legal conclusions. Furthermore, the State bears the burden of proving the lawfulness of a search and seizure to the trial court by a preponderance of the evidence.

2. There are essentially two different approaches used to determine whether a social guest's personal property is subject to the reach of a search warrant—the physical proximity or possession test and the actual or constructive notice test.

3. Under the possession test, police may assume any object not worn by or in the close physical proximity of the guest is subject to the warrant.

4. The notice test has two major elements, the notice element and a relationship exception, which have not been applied uniformly in the jurisdictions where the test governs. The notice test generally requires actual or reasonable constructive notice to police that an object within the premises may not be subject to the warrant or, without such notice, police may assume that the object is subject to the warrant.

5. The relationship exception to the notice test distinguishes between a casual social guest and a visitor with a special relationship to the premises and authorizes the search of someone who is more than just a casual social visitor. Police are authorized to search the personal effects of a guest who is more than just a casual visitor if the circumstances suggest that there is a relationship between that person and the illegal activities described in the warrant.

6. The notice test together with the relationship exception are to be applied to protect social guests from unreasonable searches and seizures of their persons and property during execution of a search warrant.

7. Applying the notice test to the uncontroverted facts, we hold the State did not meet its burden to demonstrate the search of the social guest's purse was lawful. The State failed to rebut the reasonable assumption that three or four purses lying on a kitchen floor during a social gathering attended by three or four women were owned by the guests rather than by the female occupant of the residence.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.Joseph M. Penney, assistant county attorney, and Steve Six, attorney general, for appellee.Before GREENE, C.J., MALONE, J., and KNUDSON, S.J.KNUDSON, J.

After a bench trial on stipulated facts, Bobbie Jo Jackson was convicted of possession of methamphetamine and possession of drug paraphernalia. She was given a controlling sentence of 16 months' confinement. Jackson contends on appeal that there was an illegal search and seizure of her purse and the district court erred in overruling her pretrial motion to suppress the drugs and paraphernalia found therein. We agree. Jackson's convictions are reversed and vacated, and the case remanded to the district court for further proceedings consistent with this opinion.

The search of Jackson's purse

The controlling facts are not in dispute. On November 18, 2008, officers of the El Dorado Police Department executed a search warrant that authorized a search for illegal drugs and paraphernalia within the residence of Marla Davenport. The warrant specifically provided for the search of Davenport and any other persons living at the residence. Davenport, her son, and five nonresidents including Jackson and two other women were on the premises. The officers took all seven people, most of whom were found in a bedroom of the residence, to the living room before beginning a systematic search of the premises for drugs. At that time, the officers did not question Jackson or the other individuals.

In the kitchen, Police Officer Justin Phillips observed three or four purses lying on the floor in the kitchen. Phillips testified that in order to identify which purses belonged to Davenport and were subject to the reach of the search warrant, he began searching the purses for some form of identification. At the hearing on the motion to suppress evidence, Phillips testified that he did not first question the four women that were present as to ownership because he could not trust their responses to be truthful.

Phillips opened a purple purse with an orange handle and found within several items of drug paraphernalia in plain view. There was also in the purse a notice to appear addressed to Jackson. One of the items from the purse contained a residue that field- tested positive for methamphetamine. Jackson was placed under arrest for possession of methamphetamine.

The district court overruled Jackson's motion to suppress

In denying Jackson's motion to suppress, the district court recognized that had the purse been in her physical possession there would have been no legal justification under the search warrant to support the search. However, the district court reasoned: “In this case this purse was separated from any of the persons of the individuals within the residence. It is entirely reasonable for an officer, under these circumstances, to open that purse and first of all determine who it belonged to to initially search for proof of ownership.”

Regarding Phillips' failure to question the women as to ownership of the purses before opening Jackson's purse, the district judge stated, “And I do believe, as Officer Phillips does based on his experience, that officers should not have to rely on the reliability of persons present as to who owns what item.”

Jackson claims that the evidence seized from her purse should be suppressed because her privacy rights were violated under both the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. The State counters that because the purse was not on Jackson's person or in close proximity, Jackson had no recognized right of privacy and Officer Phillips had legal authority under the search warrant to open and search all containers that might have contained drugs or paraphernalia.

Standard of Review

Generally, on a motion to suppress evidence, the appellate court reviews the factual basis of the trial court's decision for substantial competent evidence, and the ultimate legal conclusion drawn from those facts raises a question of law requiring de novo review. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). However, on a motion to suppress evidence where the facts are undisputed, the appellate court exercises unlimited de novo review of the district court's legal conclusions. State v. Daniel, 291 Kan. 490, 495, 242 P.3d 1186 (2010). Furthermore, the State bears the burden of proving the lawfulness of a search and seizure to the trial court by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886, 190 P.3d 234 (2008).

When is a social guest's personal property subject to the reach of a search warrant?

There are essentially two different approaches used to determine whether a social guest's personal property is subject to the reach of a search warrant—the physical proximity or possession test (possession test) and the actual or constructive notice test (notice test). It is not clear from our case law which test is generally followed in Kansas. We will begin our discussion with a sampling of representative decisions from other jurisdictions.

Under the possession test, police may assume any object not worn by or in the close physical proximity of the guest is subject to the warrant. State v. Reid, 190 Or.App. 49, 60–61, 77 P.3d 1134 (2003). Because this rule allows police to search any object not in the physical possession of the guest, the rule is easily applied by police and easily reviewed by the trial court. State v. Andrews, 201 Wis.2d 383, 403, 549 N.W.2d 210 (1996). But as the Oregon Court of Appeals noted, the bright-line simplicity of the rule is not only an advantage, but also a fault because the rule is potentially arbitrary and inflexible. 190 Or.App. at 60, 77 P.3d 1134.

In contrast to the bright-line rule of the possession test, the notice test has two major elements, the notice element and a relationship exception, which have not been applied uniformly in the jurisdictions where the test governs. The notice test generally requires actual or reasonable constructive notice to police that an object within the premises may not be subject to the warrant or, without such notice, police may assume that the object is subject to the warrant. See United States v. Neet, 504 F.Supp. 1220, 1226–28 (D.Colo.1981); Annot., 51 A.L.R.5th 375.

The relationship exception to the notice test distinguishes between a casual social guest and a visitor with a special relationship to the premises and authorizes the search of someone who is more than just a casual social visitor. People v. Frederick, 142 Cal.App.4th 400, 411, 48 Cal.Rptr.3d 585 (2006). Police are authorized to search the personal effects of a guest who is more than just a casual visitor if the circumstances suggest that there is a relationship between that person and the illegal activities described in the warrant. 142 Cal.App.4th at 411, 48 Cal.Rptr.3d 585. For example, police were authorized to search the jacket of a visitor found at a residence at 3:45 a.m. because his presence at such an unusual hour suggested he was not a casual visitor. United States v. Gray, 814 F.2d 49, 51 (1st Cir.1987).

If the relationship exception is not met, then the rule considers police knowledge or constructive knowledge as to the ownership of an object. [W]ithout notice...

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3 cases
  • State v. Brown
    • United States
    • Iowa Supreme Court
    • January 5, 2018
    ...tests. For example, in State v. Jackson , a Kansas appellate court seemed to combine the notice and relationship tests. 46 Kan.App.2d 199, 260 P.3d 1240, 1243–44 (2011). A search is not valid, according to the Jackson court, if the officers have actual or reasonable constructive notice the ......
  • State v. Light
    • United States
    • Court of Appeals of New Mexico
    • May 23, 2013
    ...which meant that it could reasonably be expectedthat some of his personal belongings would be there”). {38} In State v. Jackson, 46 Kan.App.2d 199, 260 P.3d 1240, 1243–44 (2011), the Kansas Court of Appeals adopted a hybrid approach that it characterized as a “notice test” with a relationsh......
  • State v. Hunter
    • United States
    • Kansas Court of Appeals
    • October 30, 2015
    ...but the only exception being argued by the parties is the relationship exception to the notice test as articulated in State v. Jackson, 46 Kan.App.2d 199, 260 P.3d 1240 (2011). The relationship exception to the notice test allows police to search the personal effects of a guest on the premi......

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