State v. Mullen
| Decision Date | 22 April 2016 |
| Docket Number | No. 110,468.,110,468. |
| Citation | 304 Kan. 347,371 P.3d 905 |
| Parties | STATE of Kansas, Appellee, v. Jordan A. MULLEN, Appellant. |
| Court | Kansas Supreme Court |
Joanna Labistida, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Jordan Mullen filed a motion to suppress evidence resulting from a search of a house where he was staying in Shawnee, Kansas. The search was conducted pursuant to an anticipatory search warrant which purported to give law enforcement authority to search the house once a suspicious package—addressed to the house in Shawnee and likely containing illegal drugs—was successfully delivered to a resident of the house. The district court denied Mullen's motion to suppress, concluding that the search warrant was supported by probable cause and that the event triggering the warrant's execution occurred when Mullen, under the surveillance of law enforcement, retrieved the package from the front porch and brought it inside the home. The Court of Appeals agreed and affirmed the district court's decision regarding the search warrant and its execution. See State v. Mullen, 51 Kan.App.2d 514, 348 P.3d 619 (2015)
. This court granted Mullen's petition for review challenging the Court of Appeals decision. We affirm.
On November 8, 2011, Steve Hahne, a detective with the special investigations unit of the Shawnee Police Department, prepared an affidavit in support of a search warrant for a home located in Shawnee, Kansas. Within the affidavit, Hahne stated the following pertinent facts:
Based on these facts, a district court judge signed a search warrant for 5807 Meadowsweet Lane, authorizing law enforcement to search the home for evidence of illegal drugs.
That same day, Hahne, along with other members of the special investigations unit, set up a surveillance of the home. At approximately 1 p.m., Inspector Lewis, dressed as a mail carrier and driving a postal vehicle, arrived at the residence with the package. Lewis knocked on the front door and announced, “Post Office,” but no one answered. After waiting about a minute, Lewis set the package down by the front door (the package's sender did not require a signature for delivery) and left in the postal vehicle. At 1:06 p.m., an individual, later identified as Mullen, came out of the house through the front door, retrieved the package, and went back inside.
At 1:17 p.m., law enforcement entered the home and found only Mullen inside the house. The package, still unopened, was lying on the kitchen countertop. Law enforcement opened the package and discovered marijuana inside (the Johnson County Crime lab later confirmed that the package contained 896.1 grams of marijuana). After being apprised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
, Mullen told Hahne that he had recently begun staying at the house and had agreed to be there that day so he could bring the package inside the house once it arrived in the mail. Mullen was then supposed to watch over the package until one of three people (Alex Firth, Noah Schrader, or Jacob Grooms) arrived at the house to retrieve it. Mullen admitted to knowing that the package contained marijuana.
Mullen was ultimately charged with possession of marijuana with the intent to distribute. Mullen filed a motion to suppress the marijuana as well as his statements to the police, arguing that the triggering event within the anticipatory search warrant (i.e., “the successful controlled delivery to a resident” of the home) required Lewis to hand deliver the package to a resident of the home. Mullen contended that because Lewis simply left the package on the front porch, a controlled delivery never occurred and, consequently, law enforcement acted in violation of the search warrant when they entered the home after Mullen retrieved the package.
The State argued that a controlled delivery did occur because, once the postal inspector left the package on the front porch, the package remained under the constant surveillance of law enforcement until Mullen eventually brought the package inside the home. Thus, according to the State, law enforcement acted properly in executing the search warrant.
At the hearing on the motion to suppress, Detective Hahne stated that the warrant's triggering event required that the package, while under the surveillance of law enforcement, be delivered to the home and that the package be taken inside the home by a resident. Though he had agreed with defense counsel's statement at Mullen's preliminary hearing that a “controlled delivery” would require handing the package to a resident of the home, Hahne indicated at the suppression hearing that a controlled delivery was accomplished in this case when Mullen, under the law enforcement surveillance, retrieved the package from the front porch and brought it inside the home.
At the conclusion of the hearing, the district court reserved ruling on whether a controlled delivery occurred and asked for supplemental briefing on whether probable cause to search a home for illegal drugs is established merely because a resident of the home brings a package—mailed to the residence and likely containing illegal drugs—into the home. At a subsequent hearing, the district court ruled that the search warrant was supported by probable cause and that law enforcement effected a controlled delivery of the package, reasoning that Mullen's retrieval of the package from the front porch while under police surveillance was sufficient to trigger execution of the search warrant.
Later, Mullen agreed to a bench trial on stipulated facts while reserving his right to appeal the district court's denial of his motion to suppress. The district found Mullen guilty, imposed an underlying prison sentence of 22 months and placed him on probation for 18 months.
On appeal, the Court of Appeals rejected Mullen's arguments concerning the lack of probable cause supporting the search warrant or that a controlled delivery never occurred. The Court of Appeals, however, found that the record failed to show that the district court advised Mullen of his right to a jury trial before he waived that right by signing the stipulation of facts. As a result, the Court of Appeals reversed Mullen's conviction and remanded the case for further proceedings. Mullen, 51 Kan.App.2d at 526, 348 P.3d 619
. Mullen filed a petition with this court seeking review of the Court of Appeals decision affirming the denial of his motion to suppress. The State filed a cross-petition seeking review of the Court of Appeals decision concluding that Mullen's jury trial waiver was invalid. This court granted Mullen's petition for review but denied the State's cross-petition.
Mullen argues that the Court of Appeals erred in concluding that the search warrant was supported by probable cause. He contends that without evidence showing that occupants of a particular home are involved in drug activity, the mere fact that an occupant brings a package—addressed to the residence and likely containing illegal drugs—inside the home does not provide probable cause to search the home for illegal drugs.
Before the Court of Appeals, the State argued that Mullen should not be allowed to raise this argument on appeal because he failed to raise it before the district court. The State pointed out that Mullen's sole argument in favor of...
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