State v. Landis

• Decision Date: 16 March 2007
• Docket Number: No. 95,466.,95,466.
• Citation: 156 P.3d 675
• Parties: STATE of Kansas, Appellee, v. James LANDIS, Appellant.
• Court: Kansas Court of Appeals

156 P.3d 675

STATE of Kansas, Appellee, v. James LANDIS, Appellant.

No. 95,466.

Court of Appeals of Kansas.

March 16, 2007.

Charles A. O'Hara, of O'Hara, O'Hara & Tousley, of Wichita, for appellant.

Ty Kaufman, county attorney, and Phill Kline, attorney general, for appellee.

Before GREEN, P.J., ELLIOTT and MALONE, JJ.

GREEN, P.J.

James Landis appeals his convictions and sentences for possession of marijuana with intent to sell within 1,000 feet of a school in violation of K.S.A. 65-4163(b); possession of methamphetamine in violation of K.S.A. 65-4160; possession of marijuana without a drug tax stamp in violation of K.S.A. 79-5208; and possession of drug paraphernalia in violation of K.S.A. 65-4152. Landis argues that the evidence obtained during the search of his residence should have been suppressed because material information was deliberately omitted from the affidavit in support of a search warrant.

We determine that the affidavit, which was based solely on hearsay statements from a person who was a participant in the crime under investigation, failed to establish probable cause to search Landis' residence. Moreover, consideration of the information deliberately omitted from the affidavit further magnifies the lack of probable cause in the affidavit. Because there was not probable cause to issue the search warrant, the evidence obtained from the search of Landis' residence should have been suppressed. Accordingly, we reverse and remand with directions to suppress the evidence obtained from the search.

One afternoon in June 2004, Trooper Dale Patrick stopped Janet Melroy for a traffic violation. Kevin Brown, Melroy's son, was a passenger in the car along with his two children and his girlfriend. During the stop, Patrick found marijuana and a pipe in the car. Melroy and Brown were placed under arrest and taken separately to the police station.

While driving to the police station, Patrick questioned Melroy about where she had purchased the marijuana. Initially, Melroy said that she had purchased the marijuana from a man named "John" in Wichita. Melroy told Patrick that she had purchased marijuana from this person several times. Later in their conversation, however, Melroy stated that this was the first time she had bought marijuana from him. Patrick testified that he asked Melroy whether she had purchased the marijuana in Canton, but she responded no. When Patrick asked Melroy where she had purchased the marijuana, Melroy responded that she bought it in several different places. Melroy also told Patrick that she met the person in McPherson. Patrick testified that he confronted Melroy about her conflicting statements and told her that he did not think she was being truthful with him. After arriving at the police station, Patrick told Detective Travis Hawkinson about Melroy's conflicting statements.

When Patrick and Hawkinson interviewed Melroy at the police station, Melroy changed her story and told the officers that she had obtained the marijuana from Landis at his residence earlier that day. Melroy told the officers that Landis had "fronted" her the marijuana and that she was supposed to pay him for it at a later time. Melroy stated that she had smoked marijuana at Landis' residence that day. Melroy described Landis' home and its location to the officers. Patrick testified that Melroy stayed consistent with her story that she had obtained the marijuana from Landis.

After the interview with Melroy, Hawkinson submitted an affidavit for a search warrant of Landis' residence. The affidavit for the search warrant contained the following information: that 1/4 ounce of marijuana and drug paraphernalia had been found in a car during a traffic stop; that Melroy and Brown were arrested and taken to the police station; that Melroy told the officers during her interview at the police station that she had purchased the marijuana on credit from Landis at his residence; that Melroy stated that Landis had handed her the marijuana when she came out of the bathroom at his residence; that Melroy stated that she was coming from Landis' residence when she was stopped by Patrick; that Melroy told the officers that she had previously purchased marijuana from Landis on several occasions that Melroy described Landis' residence; and that Hawkinson obtained Landis' address from another officer.

The trial court issued a search warrant for Landis' residence. The search warrant was executed at Landis' residence that evening. During the search, Landis revealed to Hawkinson where the drugs in his residence were hidden. According to Hawkinson, Landis went to the hot water heater in his house and got down on his hands and knees and pulled out a green sock. Landis then took a metal pipe and marijuana out of the sock. Landis also retrieved a small bag from underneath the water heater. Inside the bag was a plastic snort tube, methamphetamine, and marijuana. In addition, marijuana was discovered in Landis' garage.

Landis was charged in an amended complaint with possession of marijuana with intent to distribute within 1,000 feet of a school in violation of K.S.A. 65-4163(b), possession of methamphetamine in violation of K.S.A. 65-4160, possession of marijuana without drug tax stamps in violation of K.S.A. 79-5208, and possession of drug paraphernalia with intent to use in violation of K.S.A. 65-4152.

Before trial, Landis moved to suppress the evidence obtained during the search of his home. Landis argued that the affidavit for search warrant lacked probable cause on its face. Landis maintained that there were no facts in the affidavit upon which to find Melroy reliable. Moreover, Landis contended that the affidavit omitted Melroy's conflicting statements about where she had obtained the marijuana and that the judge issuing the search warrant was never made aware of those conflicting statements.

At the suppression hearing, Hawkinson testified that he knew Melroy had given conflicting statements concerning from whom Melroy had purchased the marijuana. Nevertheless, Hawkinson decided not to put this information in the affidavit. When asked why he did not include the information in the affidavit, Hawkinson stated: "Because almost every interview that we do with something like this, they're afraid, they make up a story." According to Hawkinson, he decided that Melroy's statements that she obtained the marijuana from someone other than Landis were not credible.

The trial court later filed a letter opinion on Landis' motion to suppress. The trial court found that Hawkinson had deliberately omitted information concerning Melroy's inconsistent statements from his affidavit for the search warrant. Moreover, the trial court found that this information was material, stating: "Conflicting statements made by an informant about the source of drugs clearly bear on the credibility of that informant, and should be disclosed to a magistrate in the search warrant affidavit." Nevertheless, the trial court found that this deliberate material omission did not destroy the probable cause for issuance of the warrant. The trial court stated that had the judge known about the omitted statements, he still would have issued the search warrant for Landis' residence. As a result, the trial court denied Landis' motion to suppress.

Landis' case proceeded to trial. The State was allowed to present testimony from Melroy concerning her purchase of marijuana from Landis. In her testimony, Melroy admitted to buying a 1/4 ounce of marijuana from Landis just before she was pulled over by Patrick. The jury found Landis guilty of the charged offenses. Landis was sentenced to 68 months in prison.

Probable Cause for Issuance of Search Warrant

On appeal, Landis contends that the evidence obtained during the search of his residence should have been suppressed because material information was deliberately omitted from the affidavit for search warrant. Landis points out that Hawkinson failed to include in the affidavit for the search warrant Melroy's conflicting statements about where and from whom she obtained the marijuana. Landis contends that this omitted information combined with the facts alleged in the search warrant affidavit failed to establish probable cause to issue the search warrant and that his motion to suppress should have been granted.

Standard of Review

In reviewing the trial court's denial of Landis' motion to suppress, this court reviews the factual underpinnings of the trial court's decision for substantial competent evidence. This court reviews the trial court's ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, determine the credibility of witnesses, or resolve conflicts in the evidence. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).

Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), a criminal defendant may challenge the veracity of an affidavit used by police to obtain a search warrant. State v. Ratzlaff, 255 Kan. 738, 753, 877 P.2d 397 (1994). Noting that a criminal defendant can challenge an affidavit for search warrant when there has been a deliberate omission, our Supreme Court in State v. Grissom, 251 Kan. 851, 907, 840 P.2d 1142 (1992), stated:

"In State v. Lockett, 232 Kan. 317, 319, 654 P.2d 433 (1982), this court, relying upon Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), reviewed the general rules applying to a false statement in an affidavit for a search warrant and extended the rules to a deliberate omission. This court stated that a person attacking the affidavit must show the deliberate omission of material information. 232 Kan. at 319, 654 P.2d 433."

Thus, a defendant attacking the sufficiency of an affidavit for a search warrant based upon an omission in the affidavit must establish two things: (1) that the omission was deliberate; and (2) that the omission was material. Lockett, 232 Kan. at 319, 654...