State v. Lockett

• Decision Date: 03 December 1982
• Docket Number: No. 54049,54049
• Citation: 232 Kan. 317,654 P.2d 433
• Parties: STATE of Kansas, Appellee, v. Marion Lewis LOCKETT, Appellant.
• Court: Kansas Supreme Court

Page 433

654 P.2d 433

232 Kan. 317

STATE of Kansas, Appellee, v. Marion Lewis LOCKETT, Appellant.

No. 54049.

Supreme Court of Kansas.

Dec. 3, 1982.

Syllabus by the Court

1. Generally a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or application. An exception to this general rule is recognized if the challenger's attack is supported by allegations and an offer of proof under oath that the affidavit or application for search warrant contains material statements of deliberate falsehood or reckless disregard for the truth, or deliberate omissions of material facts.

2. Supervision over voir dire examination of the veniremen and control over the nature and extent of questioning are matters necessarily left to the sound discretion of the trial court.

Craig Stancliffe, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Michael J. Malone, Dist. Atty., were with him on the brief for appellee.

James E. Rumsey, of Rumsey & Hooge, Lawrence, argued the cause and was on the brief for appellant.

HERD, Justice:

This is a direct appeal from a jury conviction of aggravated robbery. K.S.A. 21-3427.

During the early evening hours of Thursday, July 30, 1981, a lone black man entered the Burns Retail Liquor Store at 1917 West 24th Street in Lawrence. After threatening to stab the owner with a serrated steak knife, the robber fled with the day's receipts in a quart liquor sack.

Officer Severeno Woods was called to the scene of the robbery. Mr. Burns provided a description of the robber. As the result of a conversation with a Ms. Rafferty, the former manager of some nearby apartments, Officer Woods determined Yuseph Chaka was a suspect in the Burns Liquor robbery. Woods and two other officers went to Chaka's residence at 1733 West 24th later that evening. After knocking on the door a woman inside advised them Chaka no longer lived there.

Just after midnight on Sunday, August 2, 1981, the Taco Tico restaurant one-half block away from Burns Liquor Store was robbed at gunpoint. This time the thief had a pillowcase over his head and was wearing a shirt of distinctive color and design. A Taco Tico employee remembered the shirt was similar to one worn by a black man who had been in the restaurant earlier to order food. The robber left with the money in an orange plastic water pitcher.

Officer Woods was also on duty when the Taco Tico was robbed. The Taco Tico robber had the same height and weight characteristics as the person who hit nearby Burns Liquor two nights earlier. Woods, of course, again thought of Mr. Chaka. He advised other officers the Taco Tico suspect might live at 1733 West 24th, the address Woods had checked for Chaka on July 30.

After Woods' tip, officers converged on the apartment at 1733 West 24th. Appellant Marion Lockett and Larry Fowler were in the apartment. Officers knocked on the door and Lockett admitted them. They inquired of his name and birthdate. Realizing Lockett was not Yuseph Chaka the officers went outside and ran Lockett's name through the National Crime Information Center computer. The computer revealed there was an outstanding warrant for forgery on Lockett. Officers returned and arrested Lockett. Incident to the arrest officers seized appellant's shirt and a Taco Tico bag lying on the coffee table. A search turned up nothing else related to the Taco Tico robbery.

On August 3, 1981, Detective Michael Hall, who had been assigned to investigate the Burns Liquor robbery, interviewed Virginia Steele. Ms. Steele lived a block from the appellant's apartment. She stated that during the early evening on Thursday, July 30, 1981, the appellant came to her residence and told her he had just robbed a nearby liquor store. Ms. Steele also stated that during the time appellant was at her apartment he had a knife in his hand.

Hall also talked to Jay Johnson on August 3. Johnson stated he took the appellant to Kansas City on the evening of July 30, 1981, and the appellant appeared to have an unusually large amount of money.

Hall took this information to Assistant District Attorney Craig Stancliffe who prepared an affidavit for a warrant to search the appellant's apartment. The affidavit generally recounted the circumstances surrounding the two robberies and Lockett's arrest. It also related the story told by Virginia Steele. No mention, however, was made of the search which occurred incident to Lockett's arrest. A warrant was issued on August 4, 1981. A search the same day uncovered a quart liquor sack in a bedroom wastebasket and a serrated steak knife from atop a bedroom dresser.

Lockett was charged with aggravated robbery (K.S.A. 21-3427) of the Burns Liquor Store. A pretrial motion to suppress the evidence recovered in the August 4 search of his apartment was overruled. Lockett was convicted by a jury. He appeals.

Appellant first claims the affidavit for search warrant was insufficient because it did not mention 1) Burns could not identify Marion Lockett's picture in a photo lineup conducted August 3, 1981, and 2) the August 2 search of Lockett's apartment turned up nothing.

The scope of review of a suppression hearing is limited. "If a trial court's findings on a motion to suppress evidence are supported by substantial evidence they will not be disturbed on appeal." State v. Strecker, 230 Kan. 602, 608, 641 P.2d 379 (1982); State v. Nicholson, 225 Kan. 418, 423, 590 P.2d 1069 (1979).

In State v. Jacques, 225 Kan. 38, 43-44, 587 P.2d 861 (1978), this court, relying on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), stated the general rules applicable to this case:

"However, there is a presumption of validity with respect to an affidavit supporting a search warrant and generally a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or application. [Citation omitted.]

"An exception to the above general rule is recognized if the challenger's attack is supported by allegations and an offer of proof under oath that the affidavit or application for search warrant contains material statements of deliberate falsehood or of reckless disregard for the truth. Under this exception an evidentiary hearing would be required on a motion to suppress evidence obtained in the search. The challenger has a duty to point out specifically the portion of the warrant affidavit that is claimed to be false, and a statement of supporting reasons should accompany the motion to suppress."

Obviously the Jacques case applied only to false statements contained in an affidavit for search warrant. However, a deliberate omission is often equal to an actual misstatement. Thus, the Jacques and Franks rules can easily apply to a case where a person claims authorities deliberately omitted material information from a search warrant.

Jacques requires the person attacking the affidavit show two things: 1) the omission was deliberate, and 2) the omission was material.

First there is no direct evidence the omission of either the lineup or search was deliberate. However, even if the omission were deliberate it must also be material. In other words, if the issuing judge had the omitted information before him when he examined the affidavit, would a finding of probable cause to issue a search warrant still have been proper?

"Probable cause" to issue a search warrant is not easily defined. This court has, however, compared it to a jigsaw puzzle where, "[b]its and pieces of information are fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been or is being committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance." State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 (1977). In any event, probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. State v. Weigel, 228 Kan. 194, 197, 612 P.2d 636 (1980); State v. Marks, 231 Kan. 645, 647-48, 647 P.2d 1292 (1982).

We conclude the omission of the information regarding the lineup was immaterial. Even if the information had been included in the affidavit, probable cause would have still existed based on the information received from Virginia Steele and Jay Johnson.

Whether probable cause would have existed had information regarding the August 2 search of Lockett's apartment been included on the affidavit presents a more difficult question. This determination depends on what the searching officers were looking for during the August 2 search. If the officers searched for a serrated knife and a quart liquor sack on August 2 without success there is no reason to believe those items would be at Lockett's apartment on August 4.

Officers Gist, Love, Greer and Othick stayed at Lockett's apartment after his arrest August 2. Officer Gist remained outside. Officer Othick spent most of his time in the kitchen with Larry Fowler, although he did state he "went through" the apartment looking for evidence of the Taco Tico robbery. Officer Love indicated she searched for "a gun, a pillowcase, money and a pitcher." Love stated she knew about the Burns Liquor Store robbery but not the steak knife. Officer Greer testified he was looking for evidence of the Taco Tico robbery. He stated he saw several knives but that since he was not looking for a steak knife he paid little attention to them.

The officers' testimony demonstrates there is substantial evidence the August 2 search was not material to the search warrant issued August 4 authorizing police to search the apartment and seize the liquor sack and steak knife. The officers on the premises August 2 knew little about the Burns Liquor robbery. They were searching for evidence of the Taco Tico crime, not the steak knife and liquor sack. Thus, even had the omitted information been included in...