State v. Morris

• Decision Date: 03 March 2000
• Docket Number: No. 83,090.,83,090.
• Citation: 999 P.2d 283,27 Kan. App.2d 155
• Parties: STATE OF KANSAS, Appellant, v. ROGER MORRIS, Appellee.
• Court: Kansas Court of Appeals

27 Kan. App.2d 155

999 P.2d 283

STATE OF KANSAS, Appellant, v. ROGER MORRIS, Appellee.

No. 83,090.

Court of Appeals of Kansas.

Opinion filed March 3, 2000.

Angela M. Wilson, assistant district attorney, Christine Kenney Tonkovich, district attorney, and Carla J. Stovall, attorney general, for appellant.

Harry E. Warren and Dawn Cook, of Lawrence, for appellee.

Before MARQUARDT, P.J., PADDOCK, S.J., and THOMAS H. BORNHOLDT, District Judge, assigned.

PADDOCK, J.:

The State appeals the district court's order suppressing evidence obtained pursuant to a warrant to search the home of Roger Morris.

The district court based its order primarily on the testimony of police officers who were involved in obtaining the search warrant.

The officers testified that they had received information that Roger Morris was involved with his brother Alan in the manufacture of methamphetamine at Alan's home. Pursuant to a search warrant, officers did indeed discover evidence of a methamphetamine lab in Alan's home.

Believing that drug evidence might also be found in Roger's home, Officer Flachsbarth of the Lawrence Police Department and Special Agent Hutchins of the Kansas Bureau of Investigation went to Roger's home to ask if he would consent to a search of his home. Upon arriving at Roger's home, Flachsbarth and Hutchins walked up on the front porch and knocked on the door. Receiving no response, Hutchins noticed there was a window that was approximately 6 feet above the ground and 6 to 10 feet to the right of the front door. The window was covered with a venetian blind with its slats closed. There was a 4- × 5-inch opening in the blind where the slats were broken. Hutchins, standing on the bottom step of the porch, looked through the hole in the blind to see if anyone was in the home. In order to see through the opening, Hutchins had to lean out from the porch. From that vantage point, he could see directly into the home through the opening in the blind. Hutchins observed what he believed to be paraphernalia used in the manufacture of drugs.

Armed with this information, Flachsbarth and Hutchins told Officer Khatib what they had observed, and Khatib prepared an affidavit for a warrant to search Roger's home. Khatib had not been told that Hutchins had peered through a hole in a closed blind to make his observations.

The warrant to search was supported by three statements that referred to Roger: (1) the statement from two informants that Roger was involved in the manufacture of methamphetamine, (2) a statement from an anonymous caller that Roger frequently visited Alan's home where Alan manufactured methamphetamine, and (3) the observations the officers made while looking through Roger's window.

The district court ruled that the search was unlawful because Roger had a reasonable expectation of privacy in his home and by closing the blind, Roger had taken reasonable steps to protect his home from public view.

The district court also concluded that without the observations of the two officers, the other statements in the affidavit did not provide probable cause for a search because the statements did not mention Roger's home or anything that could be found therein.

Without question, the judge that issued the warrant had probable cause to do so based on the observations of the officers set out in the affidavit. The State embraces this argument and points out the rule that a person against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit, citing State v. Jensen, 259 Kan. 781, 787, 915 P.2d 109, cert. denied 519 U.S. 948 (1996). As with many rules, there is an exception where an attack on the affidavit is supported by allegations and an offer of proof under oath that the affidavit contains (1) material statements of deliberate falsehood or reckless disregard for the truth, or (2) deliberate omissions of material fact. State v. Colbert, 257 Kan. 896, 905, 896 P.2d 1089 (1995). Where, as here, information is omitted from an application for a search warrant, it should be determined whether the omission was material and whether it rendered the affidavit unreliable. State v. Cowdin, 25 Kan. App.2d 176, 181, 959 P.2d 929, rev. denied, 265 Kan. 887 (1998). In other words, would the judge in the instant case who issued the search warrant have had probable cause to do so had he been informed of how the officer viewed the interior of Roger's home. The judge who suppressed the evidence thought the fact that the officer looked through a hole in the shade was material and if that fact had been included within the affidavit, it would have rendered the affidavit unreliable. We agree.

The Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights have been found to give special deference to the sanctity of privacy in an individual's home. State v. Platten, 225 Kan. 765, 769, 594 P.2d 201 (1979). The viewing by police into an area where an individual has a subjective expectation of privacy that society accepts as reasonable constitutes a search. State v. Huber, 10 Kan. App.2d 560, 566, 704 P.2d 1004 (1985). By having the blind closed, Roger demonstrated a subjective expectation of privacy in his home. Such a demonstration of privacy is accepted by society as reasonable. By peering through the hole in the blind, the officers were prying into an...