State v. Mell, No. 98,725.

• Decision Date: 18 April 2008
• Docket Number: No. 98,726.,No. 98,725.
• Citation: 182 P.3d 1
• Parties: STATE of Kansas, Appellant, v. George T. MELL, Appellee. State of Kansas v. Nancy M. Mell, Appellee.
• Court: Kansas Court of Appeals

182 P.3d 1

STATE of Kansas, Appellant, v. George T. MELL, Appellee.

State of Kansas v. Nancy M. Mell, Appellee.

No. 98,725.

No. 98,726.

Court of Appeals of Kansas.

April 18, 2008.

Stephen A. Hunting, deputy county attorney, and Paul J. Morrison, attorney general, for appellant.

William K. Rork, Wendie C. Bryan, and Kenneth B. Miller, of Rork Law Office, of Topeka, for appellee George T. Mell.

Kathleen Neff, of DeVoe & Neff, Lawyers, of Overbrook, for appellee Nancy M. Mell.

Before GREEN, P.J., GREENE and LEBEN, JJ.

GREEN, J.

In a prosecution for cultivation of marijuana, possession of methamphetamine, possession of marijuana, no drug tax stamp, and possession of drug paraphernalia, the State appeals from a pretrial order suppressing evidence obtained in a search of the residence of Nancy M. Mell and George T. Mell. On appeal, the State contends that the trial court erred in determining that the area in the yard where marijuana plants were growing was within the curtilage of the residence. We agree and reverse. Next, the State contends that the trial court improperly determined that a police officer's warrantless entry into the Mells' residence was not justified by exigent circumstances. We disagree and affirm. Finally, the State asserts that the affidavit for the search warrant furnished the magistrate with sufficient facts from which the magistrate could conclude that probable cause existed to believe the Mells' residence had some nexus with the growing of marijuana plants. We disagree and affirm. Accordingly, we affirm in part, reverse in part, and remand for trial without the evidence seized in the search of the Mells' residence.

On June 14, 2006, Officer Richard Howard went to the Mells' residence to serve a warrant for a probation violation on their daughter, Kayla Mell. Several cars were parked at the residence. Howard was met at the front door by Nancy, who stepped out onto the front porch. Howard did not enter the house. Howard told Nancy that he was looking for Kayla. Nancy told Howard that Kayla was not home. Although Howard attempted to leave, Nancy continued to engage Howard in conversation about Kayla as he walked to the sidewalk where his patrol car was parked.

As Howard stood on the sidewalk between the Mells' house and the neighboring house, he looked towards the backyard for no particular reason. Nancy, who was still standing on the porch and unable to view the backyard from her vantage point, noticed Howard looking in that direction. Nancy pointed towards the backyard and asked, "`Are those what I think they are?'" Howard responded, "`What's that?'" Nancy answered, "`The weeds back there.'" Howard responded, "`What weeds?'" Nancy replied, "`The ones by the fence.... Are they what I think they are?'" Howard could see weeds by the fence but could not identify them from his location. Howard had not noticed the plants before this inquiry by Nancy. Howard responded, "`I don't know,'" and, without Nancy asking him to do so, walked towards the backyard to see what Nancy was talking about.

When Howard arrived at the area in question, he noticed what appeared to be eight or nine marijuana plants located in the side yard. Before reaching the area where the plants were located, Howard could only identify the plants as "weeds." He did not identify them as marijuana until he walked into the side yard and viewed the plants up close. The record does not reflect the distance between the sidewalk where Howard was initially located and the plants.

The plants were mixed in with other weeds, and there was straw placed around them. Although Howard testified that there was no straw in the backyard except in this particular spot, he later admitted that straw was in the front yard by the sidewalk and porch where the Mells were trying to grow grass. Photos of the scene showed that a large portion of the front and side yard was covered with straw. Although the rest of the Mells' backyard was fenced in, the area where the plants were located was outside this fence and was not gated or fenced in. Howard did not enter the fenced area, as the plants were located in front of the fence. No warning signs were present. No objects were located between the view of the area from the front yard and the plants themselves. The area was located not far from the back door of the Mells' house, on the Mells' side of the yard between their adjoining neighbor's house.

After observing what he believed to be marijuana plants, Howard told Nancy that he was going to have the drug unit come out to look at the plants. Nancy explained that her husband was going to mow them down when he got off work and asked Howard to pull them up.

Detective Aaron Procaccini, a member of the drug unit, later arrived on the scene to look at the plants. Procaccini first talked to Howard and then walked back to the area where the plants were located. Procaccini observed 11 plants he believed to be marijuana. The record fails to state when Procaccini first observed and identified the plants as marijuana. Nancy explained that her husband had recently planted grass in that area of the yard and speculated that marijuana seeds may have been in the grass seed. Procaccini also noticed straw on the ground around the plants.

Based on this observation, Procaccini decided to apply for a search warrant for the Mells' residence. Procaccini felt there may have been chemicals to grow marijuana or marijuana itself inside the house. Nancy refused to allow Procaccini to enter the residence. Procaccini was aware that Nancy, George, and Kayla lived at the residence but was unsure if any other people were inside the house. Procaccini believed that any evidence inside the residence could be destroyed if someone was inside and the residence was not secured. Although Nancy indicated to Procaccini that no one else was inside the house, Procaccini proceeded to enter the residence.

Upon entering the home, Procaccini immediately detected the odor of burning marijuana. Procaccini also discovered several items of drug paraphernalia in plain view. Nevertheless, Procaccini testified that his purpose for entering the home was to look for people, not items. No persons were discovered within the residence. Procaccini, however, obtained a search warrant based on the previously mentioned facts.

As a result of a search of the home under the search warrant, drugs and drug paraphernalia were obtained from the Mells' residence. In addition, the marijuana plants discovered in the yard were seized. George and Nancy were ultimately charged with cultivation of marijuana, possession of methamphetamine, possession of marijuana, no drug tax stamp, and possession of drug paraphernalia. The Mells moved to suppress the evidence obtained as a result of the search. They argued that no probable cause existed for issuance of the search warrant, that no exigent circumstances existed to permit the initial search without a warrant, and that the officers unlawfully intruded upon the Mells' reasonable expectation of privacy by entering the curtilage of their home without permission to view the plants.

The trial court granted the motion to suppress. First, the court determined that, contrary to the assertion of Procaccini in his affidavit, Howard did not identify the plants as marijuana but only as weeds when he first observed them from the sidewalk. Furthermore, the court held that the plants were located within the curtilage of the home and that Howard exceeded the scope of a lawful intrusion by entering this area to observe them without permission. Moreover, the court determined that Howard did not identify the plants as marijuana until after this unlawful intrusion. As a result, the trial court excised paragraph 2 of the affidavit, which discussed Howard locating marijuana plants in the Mells' yard.

The trial court next held that there were no exigent circumstances to support the initial warrantless search of the home. For this reason, the court excised paragraph 5 of the affidavit, which discussed the evidence discovered as a result of this search.

After excising paragraphs 2 and 5 of the affidavit, the trial court held that the magistrate would not have had a substantial basis for determining that probable cause existed to support the issuance of a search warrant. For this reason, the court granted the motion to suppress all items discovered as a result of the search made without a warrant and obtained from the search made with a warrant.

I. Did the Trial Court Err in Finding the Area at Issue Was Within the Curtilage of the Home?

In granting the motion to suppress, the trial court found that the area of the Mells' yard where the marijuana plants were located was within the curtilage of the home. On appeal, the State argues this area was not within the curtilage. As a result, the State maintains that the officer was in a lawful position to view the plants and the trial court incorrectly excised paragraph 2 of the affidavit. When the State alleges an area is not within the curtilage, it has the burden of proving that point. State v. Fisher, 283 Kan. 272, 284, 154 P.3d 455 (2007). The question of curtilage is a mixed question of fact and law. We review a trial court's factual findings for substantial competent evidence and review de novo its legal conclusion whether a particular seizure occurred within the curtilage. 283 Kan. at 286, 154 P.3d 455.

When determining whether a particular area is deemed within the curtilage of a home, courts look to four factors: (1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by. 283 Kan. at 286, 154 P.3d 455 (citing United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326, reh. denied 481 U.S. 1024, 107 S.Ct. 1913, 95 L.Ed.2d 519...