State v. LeFort

Citation806 P.2d 986,248 Kan. 332
Decision Date01 March 1991
Docket NumberNo. 64538,64538
PartiesSTATE of Kansas, Appellant, v. James Donovan LEFORT, Appellee.
CourtUnited States State Supreme Court of Kansas

Syllabus by the Court

1. The purpose of the constitutional requirement that search warrants particularly describe the place to be searched and the person or property to be seized is to prevent general searches and the seizure of items at the discretion of the officer executing the warrant.

2. The test to determine whether a search warrant meets the constitutional requirement of specificity is one of practical accuracy rather than one of technical sufficiency, and absolute precision in the search warrant is not required in identifying the place to be searched or the property to be seized.

3. In determining whether the description given the executing officer in a search warrant was sufficient, the initial examination is directed to the description stated in the warrant. However, if the description in the warrant is inadequate due to a technical irregularity, the focus then shifts to the description contained in the application or affidavit for the warrant if the officers were able to use that description to execute the search warrant.

4. When an officer executing a search warrant is the affiant who described the property to be searched, and the judge finds there was probable cause to search the property described by the affiant and the search is confined to the area which the affiant described in the affidavit, the search does not affect the substantial rights of the accused and is in compliance with the Fourth Amendment of the Constitution of the United States and Section Fifteen of the Kansas Bill of Rights.

Vernon L. Steerman, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellant.

Edward C. Hageman, of Hageman & Hageman, Stockton, argued the cause and on the brief, for appellee.

LOCKETT, Justice:

The State of Kansas filed an interlocutory appeal from the district court's order suppressing evidence seized during the execution of a search warrant. The district court found that the warrant was defective because it lacked sufficient particularity in describing the place to be searched. The Court of Appeals found that the warrant met the test of practical accuracy sufficient to identify the residence to be searched and reversed the district court. 794 P.2d 1179. We accepted the defendant's petition for review.

The estranged wife of James LeFort told Osborne County Deputy Sheriff Lockhart that she had seen marijuana joints in her husband's house as recently as three days earlier and that two marijuana plants were growing behind that residence. Later that day Lockhart drove to LeFort's residence and observed marijuana plants outside his back door. The next day, Lockhart prepared an affidavit and application for a search warrant using a five-page form set. The form with carbon paper inserts combines the affidavit and the application for a search warrant on the first two pages, followed by the search warrant and return on the next three pages. Unfortunately, the carbon paper inserts for the warrant did not extend far enough for the full description of the premises to be searched to be reproduced on the warrant.

The search warrant provides the location to be at or on:

"the person of James Donovan LeFort and or the following described realty and or dwelling: a single family two-story type frame dwelling, white with blue trim and/or premises outbuildings to include two mobile home type trailers, all located or situated on realty at or adjacent to southwest corner of Second Avenue and Fourth Street and recorded by deed as owned by James LeFort and Geneva...."

While the search warrant signed by Judge Megaffin ended with the word "Geneva," the application and affidavit signed by Officer Wade Lockhart for the search warrant continued, stating:

"LeFort and legally described as Lot One (1) and the north sixteen feet (16') of Lot Two (2) in block twenty-two (22) in Fifield's Second Addition to the City of Alton, KS; and/or within motor vehicles parked on said realty which are identifiable as being owned or in the possession or control of James and Geneva LeFort, to wit: 1973 Dodge pickup truck, I.D. No. D17AJ35051019; 1980 Ford pickup truck, I.D. No. F15EPHJ4007; and including a 1949 Tray housetrailer, I.D. No. 6333426T, or any other motor vehicles upon the described realty."

The application for the search warrant was approved by a magistrate judge and the warrant issued. During the execution of the search warrant, Lockhart and the four law enforcement officers assisting him seized marijuana and drug paraphernalia.

LeFort was arrested and charged with two counts of possession of marijuana with the intent to sell, K.S.A.1989 Supp. 65-4127a(a); one count of possession of marijuana without having paid tax on it, K.S.A. 79-5204; and one count of possession of drug paraphernalia, K.S.A.1989 Supp. 65-4153(a)(2). Prior to trial, LeFort filed a written motion to suppress the evidence seized, claiming that the search warrant was defective because it failed to particularly describe the place to be searched.

At the hearing on the motion to suppress, the court noted there are seven towns in Osborne County, and an officer executing the search warrant could not ascertain from the face of the warrant the place to be searched. The district court found that the warrant failed to particularly describe the premises to be searched and sustained the defendant's motion to suppress the evidence seized. The State filed its interlocutory appeal.

The Fourth Amendment to the United States Constitution provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Section 15 of the Bill of Rights of the Kansas Constitution states:

"The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized."

The scope of Section 15 of the Kansas Constitution Bill of Rights is identical to that of the Fourth Amendment to the United States Constitution. State v. Deskins, 234 Kan. 529, Syl. p 1, 673 P.2d 1174 (1983).

To satisfy the specificity requirement of the constitutions the search warrant must describe the premises to be searched with sufficient particularity to permit the executing officer to locate the same from the face of the warrant. Steele v. United States No. 1, 267 U.S. 498, 45 S.Ct. 414, 69 L.Ed. 757 (1925); State v. Lambert, 238 Kan. 444, 447, 710 P.2d 693 (1985); State v. McClelland, 215 Kan. 81, 84, 523 P.2d 357 (1974).

LeFort claims that an officer attempting to execute the warrant would not have a sufficient description to locate the premises to be searched. He contends the search warrant was so broad that it could allow officers to search wherever they wanted. He relies on State v. Gordon, 221 Kan. 253, 258, 559 P.2d 312 (1977), which said: "[I]t is constitutionally required that a search warrant shall 'particularly' describe the place to be searched. Thus general or blanket warrants which give the executing officers a roving commission to search where they choose are forbidden." (Emphasis added.)

The State argues that under the circumstances the lack of the street address, city, county, and state on the face of the warrant is only a technical defect and the evidence should not be suppressed. The State refers to K.S.A. 22-2511, which states:

"No search warrant shall be quashed or evidence suppressed because of technical irregularities not affecting the substantial rights of the accused."

The State cites State v. Ames, 222 Kan. 88, 563 P.2d 1034 (1977), as authority that lack of specificity in the search warrant as to the premises location is merely a technical irregularity. In Ames, the defendant argued that a holster seized by officers during the execution of a search warrant should not have been admitted into evidence as the warrant only authorized the seizure of the gun. In addition, the defendant claimed that an accumulation of technical irregularities invalidated the search. The defendant pointed out that: (1) the return was unsigned; (2) the holster was not listed as an item seized in the return; (3) the officer gave the gun to the district attorney without prior authority of the magistrate, in violation of K.S.A. 22-2512; (4) no receipt for the items seized was given to the accused or filed with the magistrate, in violation of K.S.A. 22-2512; and (5) the date on the return was in error. 222 Kan. at 92-93, 563 P.2d 1034.

The Ames court noted that the courts prefer searches conducted under the authority of warrants to those conducted without benefit thereof. Therefore, warrants and their supporting affidavits are interpreted in a common sense, rather than a hypertechnical, fashion. To do otherwise would tend to discourage police officers from submitting their evidence to a judicial officer before acting. Because of the courts' preference for warrants, it is presumed, in the absence of a showing of illegality, that search warrants are valid. This presumption of legality also applies to supporting affidavits, as well as the proper performance by the issuing magistrate of his official duties. Consequently, one who attacks the validity of a search warrant carries the burden of persuasion. 222 Kan. at 92, 563 P.2d 1034.

The Ames court said that the test to prevent general searches is one of practical accuracy rather than one of technical sufficiency, and absolute precision in the search warrant is...

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19 cases
  • State v. Schultz
    • United States
    • Kansas Supreme Court
    • April 16, 1993
    ...and of the Fourth Amendment to the United States Constitution "is" identical or "is usually" identical. Compare State v. LeFort, 248 Kan. 332, 334, 806 P.2d 986 (1991) ("is identical") and State v. Deskins, 234 Kan. 529, Syl. p 1, 673 P.2d 1174 (1983) (scope "is identical" in "any particula......
  • State v. Thompson
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    • September 7, 2007
    ...identical" or "is usually" identical to the scope of the Fourth Amendment to the United States Constitution. Compare State v. LeFort, 248 Kan. 332, 334, 806 P.2d 986 (1991) ("is identical"), and State v. Deskins, 234 Kan. 529, Syl. ¶ 1, 673 P.2d 1174 (1983) (scope "is identical" in "any par......
  • State v. Kleypas
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    • December 28, 2001
    ...to be seized is to prevent general searches and the seizure of items at the discretion of the officer executing the warrant." State v. LeFort, 248 Kan. 332, Syl. ¶ 1, 806 P.2d 986 (1991). "`[I]t is constitutionally required that a search warrant shall "particularly" describe the place to be......
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    ...identical" or "is usually" identical to the scope of the Fourth Amendment to the United States Constitution. Compare State v. LeFort, 248 Kan. 332, 334, 806 P.2d 986 (1991) ("is identical"), and State v. Deskins, 234 Kan. 529, Syl. ¶ 1, 673 P.2d 1174 (1983) (scope "is identical" in "any par......
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1 books & journal articles
  • To Exclude or Not to Exclude:the Future of the Exclusionaryrule After Herringv. United States
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    • University of Nebraska - Lincoln Nebraska Law Review No. 43, 2022
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