State v. Kermoade, 92,307.
| Decision Date | 11 February 2005 |
| Docket Number | No. 92,307.,92,307. |
| Citation | 105 P.3d 730,33 Kan.App.2d 573 |
| Parties | STATE OF KANSAS, Appellant, v. ANGELA C. KERMOADE and GEORGE GEFFREY MOYER, JR., Appellees. |
| Court | Kansas Court of Appeals |
Erica K. Schoenig and Steven J. Obermeier, assistant district attorneys, and Phill Kline, attorney general, for appellant.
Paul W. Burmaster, of Overland Park, for appellees.
Before McANANY, P.J., MALONE, J., and LARSON, S.J.
Petition for review denied 279 Kan. 1009 (2005).
In this interlocutory appeal, the State appeals the trial court's granting of Angela C. Kermoade's and George Geffrey Moyer, Jr.'s joint motion to suppress evidence obtained from a search of their residence. We agree with and affirm the trial court.
This appeal, like all involving suppression issues, is fact sensitive, and we first set forth in detail the facts as developed by the suppression hearing.
In December 2002, Officer Donald VanHoose and Detective Jess Rollwagon seized marijuana plants and equipment from the home of Randall Sandusky. Sandusky agreed to be an informant and told the officers he believed there was marijuana growing in a house across the street that belonged to "Angie" and "Geff." He also said Brian Spradling was growing marijuana in the same house. Neither Spradling nor the defendants herein had been under investigation. Testimony at the suppression hearing showed the officers considered Sandusky to be unreliable.
Later the same night the two officers and Sergeant Brian Wessling, all dressed in plain clothes, went to the defendants' home. VanHoose's badge was worn around his neck and was visible. VanHoose and Rollwagon went to the porch and Wessling was at the corner of the house. There were no visibly marked patrol cars. It was cold.
VanHoose knocked on the door. Kermoade answered and opened the door only slightly. VanHoose explained why they were there and asked for permission to come in. Kermoade said no. In response, VanHoose asked her to step outside to talk to them. Kermoade complied with the request and stepped outside on the porch but shut the door behind her. According to Rollwagon, Kermoade "acted like she didn't want to come out the door."
VanHoose told Kermoade they were investigating her neighbor, Spradling, and they believed he was growing marijuana in her home. He told her he was there to "get" her consent to search her home. According to VanHoose, Kermoade made it clear she did not want the officers to enter her home.
The officers then explained that if she did not consent they would apply for a search warrant and it would be up to the judge to grant or deny the request. Kermoade was told that the officers would "secure" the residence and although people would be free to leave, those remaining would have to be in the presence of an officer.
Kermoade told the officers she wanted to talk to her husband, Moyer, as she had questions about her decision. She went back inside her home but in doing so, the front door remained cracked open as much as 6 inches. Kermoade went downstairs out of the officers' view in the split level home.
According to the officers, they did not attempt to enter the house without permission. After Kermoade was inside for several minutes, the officers became concerned because they did not know what was going on in the home. The officers testified they did not have concerns for their safety. Rollwagon thought the residents might destroy evidence, but they did not hear a shredder, a toilet flush, or a garbage disposal run. The officers said they believed they smelled fresh marijuana while standing on the porch. For these reasons, Rollwagon yelled for Geff and Angie to come to the front door. Rollwagon said he did not push open the door when calling for defendants, although VanHoose acknowledged that at the preliminary hearing he had said that Rollwagon had swung the front door open.
The defendants came up the stairs. The officers said they were let in. There was testimony they were already inside the home. The officers did not perform a protective sweep of the home or look for other people in the home. The officers and defendants sat down in the living room and had an extended conversation. The search warrant process was explained again and the officers did not express an opinion as to whether they could obtain a warrant. Rollwagon reminded the defendants that decision would be up to a judge. Defendants inquired whether they had a right to refuse to give consent and the officers explained that the defendants did have the right to refuse.
The living room conversation lasted approximately 30 minutes. The defendants were not threatened, yelled at, or told they had to consent. At some point, the officers obtained the names of two other people in the house and allowed them to leave. At the end of the conversation, Kermoade asked Moyer, "What do you think?" Moyer responded that he thought they should cooperate. Defendants gave the officers consent to search the home, both verbally and in writing.
Defendants escorted the officers to the basement where marijuana plants and equipment to facilitate their growth was found. Defendants agreed to talk to the officers and disclosed information about the growing operation and Spradling.
Kermoade and Moyer were charged with cultivating marijuana in violation of K.S.A. 65-4105(d)(16) and K.S.A. 65-4163(a) and possession of drug paraphernalia in violation of K.S.A. 65-4152. Defendants moved to suppress, claiming the consent was not voluntarily given but coerced following the officers' unlawful intrusion into their home. In response, the State maintained the encounter was consensual, did not constitute a seizure, and the consents were voluntary.
The testimony at the suppression hearing from the three officers was similar to the facts previously set forth. VanHoose testified the defendants were free to leave during the living room conversation. Rollwagon said he would have complied if the defendants had asked him to leave. VanHoose did concede that his impression of Sandusky was that "he was not the most reliable individual." He said he would not have based a search warrant application solely on Sandusky's information. It was for that reason the officers knocked on the defendants' door.
Neither defendant testified, but the defense called Tindaro Nioci to testify regarding the officers' actions. He was visiting the defendants' home during the events in question and was one of the two individuals later allowed to leave. Nioci testified that as he came up from the lower level and walked to the kitchen to get a drink of water, he passed Kermoade while she was headed downstairs. At that time, he did not see anyone near the door. But, when he left the kitchen to go back downstairs, he saw three men standing inside the front door.
Ruling of the trial court
The trial court granted the defendants' motion to suppress. The court characterized the encounter as a "knock and talk" fishing expedition that is frequently fruitful. With the admission that the informant was not trusted, the trial court said no disinterested, detached magistrate would give a search warrant.
Kermoade was characterized as exhibiting a fair amount of legal acumen and did not want the officers in the home and said, "there was a denial of the consent search from the git-go." When a citizen is asked to come out on the front porch after denying entry one has to wonder how freely and voluntary that was. The court said at this point the "knock and talk" turned to a "knock and twist the arm out of the socket" because they would not take "no" for an answer.
The trial court stated that once Kermoade went downstairs the officers had nothing to assist them. They wanted to see the occupants so they yelled at them to come back upstairs. This goes to the question of voluntariness and freedom in giving the consent. The court stated the burden was on the State to show the consent was voluntarily given "and this one was extracted like a dentist pulls a bad tooth."
In discussing the "we'll come back after making an application for a search warrant" statement, the trial court pointed out officers cannot leave the impression you are absolutely entitled to obtain a search warrant. Here, the defendants were told the house was going to be "secured" and anybody there was going to have to stay in the immediate presence of a police officer. There still was nothing credible to justify a search warrant and the judge said:
The court granted the defendants' motion and ordered all the evidence and statements therefrom suppressed.
From this ruling, the State has taken an interlocutory appeal.
Did the trial court err in granting defendants' suppression motion?
The State contends Kermoade's contact with the officers was a consensual encounter and never became a seizure. The State further argues the consent to search was voluntary and, therefore, valid. The defendants principally argue for several reasons that the trial court was correct and should be affirmed.
The defendants point to and heavily rely on the standard of review restated in State v. Rexroat, 266 Kan. 50, 54-55, 966 P.2d 666 (1998), and arising from Justice Allegrucci's summary in State v. Ruden, 245 Kan. 95, 105, 774 P.2d 972 (1989):
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State v. Thompson
...279 Kan. 71, 77, 106 P.3d 1 (2005). Consent is voluntary if it is the product of free and independent will. See State v. Kermoade, 33 Kan.App.2d 573, 581, 105 P.3d 730, rev. denied 279 Kan. 1009 (2005). "[S]ubstantial evidence is such legal and relevant evidence as a reasonable person might......
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State v. Tush, 106,558.
...jurisprudence in this area involves the voluntariness of a defendant's consent in light of the illegal search. Cf. State v. Kermoade, 33 Kan.App.2d 573, 582, 105 P.3d 730, rev. denied 219 Kan. 1009 (2005). In such cases we are not only seeking to effectuate the purpose of the exclusionary r......
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State v. Gonzales, No. 93,845.
...both the voluntariness of the consent and a break in the causal connection between the illegality and the consent. State v. Kermoade, 33 Kan.App.2d 573, 581, 105 P.3d 730, rev. denied 279 Kan. 1009 (2005); Wilson, 30 Kan.App.2d at 106, 39 P.3d The State cites State v. Reason, 263 Kan. 405, ......
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State v. Parker
...obtained as a result of it. State v. Hardyway, 264 Kan. 451, 465, 958 P.2d 618 (1998) (Lockett, J., dissenting); State v. Kermoade, 33 Kan.App.2d 573, 581, 105 P.3d 730 (2005). Voluntariness of a consent is measured the proximity in time of the Fourth Amendment violation to the consent, the......