State v. Johnson
| Decision Date | 09 July 1993 |
| Docket Number | No. 68333,68333 |
| Citation | 856 P.2d 134,253 Kan. 356 |
| Parties | STATE of Kansas, Appellee, v. Troy Dale JOHNSON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The trial court's findings with regard to the existence and voluntariness of a consent to search will not be overturned on appeal unless clearly erroneous.
2. A prerequisite to a valid ruse entry is that law enforcement officers must have a reasonable suspicion of criminal activity at the residence. If an officer has a justifiable and reasonable basis to suspect criminal activity at a residence, a ruse entry is permissible. This permission is to be construed narrowly.
3. The State has the burden to prove, by a preponderance of the evidence and not by clear and convincing evidence, that the defendant's consent to search was voluntary.
4. Probable cause and exigent circumstances relating to a warrantless residential arrest are discussed and applied.
5. A protective sweep is a quick and limited search of premises incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding, as defined in Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).
6. Offenses are not multiplicitous if they were committed at different times and at different places and did not arise out of a single wrongful act.
Rebecca E. Woodman, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.
Barry K. Disney, County Atty., argued the cause, and Tami L. Sullinger, Former County Atty., and Robert T. Stephan, Atty. Gen., were on the brief, for appellee.
This is a search and seizure case. Troy Dale Johnson was convicted of first-degree murder, conspiracy to commit first- degree murder, and aggravated battery. We consider: (1) law enforcement deception to obtain Johnson's consent to search his home (a ruse entry); (2) the warrantless arrest of Johnson in his home; and (3) the search of Johnson's home after his arrest. We also consider a separate issue of whether Johnson's convictions for aggravated battery and first-degree murder are multiplicitous.
We find no error and affirm.
Johnson's case was tried to the bench on stipulated facts. The stipulated facts include consideration of the testimony from the preliminary hearing and from the hearing on Johnson's motion to suppress. Johnson testified at the suppression hearing. The same trial judge presided at all three proceedings.
Steven Boyce, the victim, was a paid confidential drug informant. He was arranging to purchase crack cocaine from Johnson at Johnson's residence in Pittsburg, Kansas. Boyce informed for Detective Harrison, who was in charge of Crawford County's drug task force. Harrison did not intend either to conclude the investigation or arrest the participants that night. Police Chief Pommier of Girard, who assisted Harrison, was a member of the drug task force. Pommier was assigned to follow Johnson when Johnson went to pick up the cocaine. Harrison provided Boyce with a body wire transmitter and $350 in marked cash. At 8:26 p.m., Harrison dropped Boyce off near Johnson's residence. Harrison saw Boyce enter Johnson's house. Because of the body wire, Harrison heard Boyce converse with Johnson and others. At approximately 8:46 p.m., Harrison saw three males, including Boyce, enter a Chevy pickup. "The plan" did not call for Boyce to accompany Johnson.
Harrison and Pommier, in separate vehicles, followed the pickup (Johnson later was identified as the owner of the pickup) out of Pittsburg to a rural location known as Hornback's corner. Although Harrison maintained audio contact, he occasionally lost visual contact with the pickup. As he neared Hornback's corner, Harrison detected conversation and then thought he heard the pickup stop. Harrison did not wish to endanger Boyce so he abruptly turned around. Harrison heard Boyce mention something about a vehicle stopping and turning around and another voice expressing hope it was not the police. The transmission became garbled and then ceased. Harrison assumed the terrain interfered with Boyce's body wire transmission. Pommier joined Harrison south of Hornback's corner and confirmed that the pickup had stopped at that corner.
Harrison concluded that the drug transaction was completed and headed back toward Pittsburg. When he observed the pickup, he noticed it was occupied by only two persons. He was not overly concerned about Boyce's safety, although he could not tell if Boyce was in the pickup. The pickup pulled into a car wash and Harrison watched as Johnson cleaned the vehicle. Harrison still could not tell if the other person in the pickup was Boyce. Harrison had no audio contact with Boyce. Consequently, he decided to stay out of sight and wait for Boyce to contact him. Later, Harrison drove by Johnson's residence. The pickup was parked next to the house.
When Harrison had not heard from Boyce by 10:30 p.m., he called the sheriff. They decided to wait at least 30 minutes before taking any action that might endanger Boyce. Harrison continued to search for Boyce, looking for signs of foul play. Shortly after 2:00 a.m., Harrison and Pommier, concerned for Boyce's safety, decided to go to Johnson's residence to check out the situation. Harrison suggested they tell Johnson they had a parole violation arrest warrant for Boyce.
Harrison and Pommier knocked on Johnson's front door. When Johnson opened the door, Harrison and Pommier identified themselves as law enforcement officers. Neither officer was in uniform; however, both officers had their badges clipped to their belts and carried their guns in side holsters. Harrison was wearing a sheriff's department ball cap. The officers asked to speak to Johnson, and he allowed them to enter. As soon as they entered, Harrison noticed four .44 caliber revolver shells on the coffee table in the living room. The detectives informed Johnson they had received a telephone call telling them Boyce was at Johnson's house. They were looking for Boyce because they had a parole violation warrant for his arrest. (There was no telephone call or warrant for Boyce's arrest.) They asked Johnson if they could "talk to him about Steven Boyce and his whereabouts." When asked if anyone else was in the house, Johnson said his half-brother, Shawn Winkfield, was asleep in one of the bedrooms.
Johnson explained that Boyce had been at the house earlier that evening and that Johnson had given Boyce a ride at about 8:30 p.m. Harrison knew that statement was false because he was following Johnson's pickup at 8:30 p.m. Harrison asked if he and Pommier could walk through the house to look for Boyce. Johnson agreed. While walking through the house, Harrison saw an open duffel bag containing guns and a gun rack with shotguns. Johnson's house was not searched at that time. Harrison looked in the kitchen and bathroom and in a locked room which Johnson opened for him with a key. Harrison estimated they were in the home approximately 10 minutes.
Later that night, the officers feared something had gone wrong because they had not heard from Boyce. They decided to return to the house and arrest Johnson and Winkfield on the charge of conspiracy to sell cocaine. Johnson and Winkfield were arrested and read their Miranda rights. Harrison noticed that the four shells on the coffee table were in the same location and position as before. Winkfield's wallet was on the dresser in the bedroom. Harrison found two $20 bills in the wallet that matched the serial numbers on the money given to Boyce. Harrison saw a gun rack with two shotguns and the open duffel bag containing what appeared to be a .44 caliber revolver and a 9 millimeter automatic pistol. The pickup was parked in the driveway next to the home. The officers noticed the window glass from the passenger's side of the pickup was missing. Bloodstains appeared to be on the door handle and in the bed of the pickup. At the car wash the officers found what appeared to be bloodstains, shattered window glass, and paint chips similar in color to Johnson's pickup.
A search warrant for the residence and the pickup was obtained. The officers recovered Johnson's .44 caliber revolver, concrete blocks, the $350 buy money, and glass and blood samples from the pickup. Boyce's body later was located in the Arcadia Cliffs strip pit. Chains, a lock, and a concrete block similar in weight and distinguishing marks to the blocks found at Johnson's residence were attached to the body. The key to the chain padlock was found on Johnson's key chain.
Broken glass from a vehicle window was discovered. Glass removed from Johnson's pickup and glass located at the side of the road at Hornback's corner and at the Arcadia Cliffs came from a common source. Blood samples recovered from Johnson's pickup, Hornback's corner, and the Arcadia Cliffs were consistent with Boyce's blood. The State's pathologist performed an autopsy and determined that Boyce had been shot in the back of the left hand and in the right lower back or upper buttocks (neither wound was fatal). The cause of death was drowning. The body wire was discovered during the autopsy. Police later determined that Johnson's .44 caliber revolver was the gun used to shoot Boyce.
Johnson and Winkfield were again given Miranda warnings and were interrogated separately the morning after their arrests. Johnson was interviewed first (the interview lasted about two hours). Johnson stated: (1) He, Winkfield, and Boyce had completed a drug transaction the night before; (2) at Boyce's request, Johnson drove Boyce to a Dillon's parking lot in Pittsburg and let him out; (3) immediately after dropping Boyce off, an unknown person threw a rock through the passenger's side window of his vehicle; and (4) because of the rock incident, Johnson...
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