State v. Olson

• Decision Date: 23 October 1986
• Docket Number: No. 58824,58824
• Citation: 726 P.2d 1347,11 Kan.App.2d 485
• Parties: , 55 USLW 2286 STATE of Kansas, Appellant, v. Gary S. OLSON, Patricia R. Davidson, George Davidson, and Randall Blakely, Appellees.
• Court: Kansas Court of Appeals

Page 1347

726 P.2d 1347

11 Kan.App.2d 485, 55 USLW 2286

STATE of Kansas, Appellant, v. Gary S. OLSON, Patricia R. Davidson, George Davidson, and Randall Blakely, Appellees.

No. 58824.

Court of Appeals of Kansas.

Oct. 23, 1986.

Review Denied Dec. 9, 1986.

Syllabus by the Court

1. Under K.S.A. 22-3216, the trial court may in its discretion reentertain a motion to suppress evidence presented at the preliminary hearing.

2. A defendant is constitutionally entitled to a hearing on a motion to suppress evidence if the defendant makes a substantial preliminary showing that the warrant affidavit included a false statement, made knowingly and intentionally or with reckless disregard for the truth, and that the allegedly false statement was necessary to the finding of probable cause.

3. A defendant's sworn affidavit and offer of proof which includes specific allegations that the warrant included false and misleading statements are sufficient to satisfy defendant's preliminary burden and to trigger a hearing on defendant's motion to suppress.

4. If defendant establishes by a preponderance of the evidence the falsity of a statement in the warrant affidavit, that statement will be removed from the affidavit and the court will reexamine the remaining statements to determine whether probable cause existed to support the warrant. The State has the burden of proving that the remaining statements provide probable cause to support the warrant.

5. The court must look to the totality of the circumstances to determine whether probable cause exists to support the warrant.

6. Where probable cause is based on information received from a confidential informant, the State must establish a reason to believe that the information is accurate. Where evidence of the informant's reliability or credibility is lacking, the value of corroborating the information by independent police investigation is recognized.

Kenneth R. Smith, Asst. Dist. Atty., Gene M. Olander, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellant.

John C. Humpage, of Humpage, Berger and Hoffman, Topeka, for appellees Patricia R. Davidson and George Davidson.

John Ambrosio, Topeka, for appellee Gary S. Olson.

J. Richard Lake, Holton, for appellee Randall Blakely.

Before BRISCOE, P.J., RICHARD W. WAHL, District Judge, Assigned, and CORWIN C. SPENCER, J., Retired, Assigned.

BRISCOE, Presiding Judge:

This is an interlocutory appeal brought by the State of Kansas pursuant to K.S.A. 22-3603. The State appeals from an order of the district court suppressing evidence seized under two search warrants.

The State raises three issues which fall within the purview of the Fourth and Fourteenth Amendments: (1) Whether defendants' allegations challenging Detective Listrom's affidavit in support of his application for a search warrant were sufficient to trigger a hearing under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); (2) whether the warrant affidavit was sufficient to establish probable cause once the false statements were removed; and (3) whether, under the good faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the evidence was improperly suppressed. We note the State does not specifically challenge the trial court's decision to excise the material it did. We affirm the trial court.

On March 12, 1985, District Court Judge James Macnish issued search warrants for two Topeka residences. The following affidavit was presented to Judge Macnish by Topeka Police Detective Randall Listrom and served as a basis for the issuance of both warrants. The bracketed portions were later determined to be false by District Judge Franklin Theis and were excised.

"I, Detective Randall K. Listrom, a narcotics officer with the Topeka, Kansas Police Department Vice-Narcotics Unit, being of lawful age and having been first duly sworn upon my oath, do depose and state:

"That I have a confidential informant, hereinafter referred to as CI. [In the past this CI has provided me with in excess of five pieces of information regarding criminal activity in the Topeka area. I have investigated this information and have found the information to be complete and accurate. This information was such that I would not suggest that a mere common member of the area's population would have access to this information.]

["I have shown to this CI, in the past, vegetation which I subjected to a Narcotest Duquenois Reagent examination. On that examination I had noted color changes indicative for the presence of marijuana. Hence I feel that this CI is familiar with the appearance of marijuana.]

["Based upon the past performance of this CI, I believe this CI to be a reliable and trustworthy person. I have no reason to suspect that this CI would ever provide me with information that the CI knew to be false.]

"The CI has advised me that a subject known to the CI as Gary Olson has been, for several years, selling marijuana. The CI knows that Olson resides at 1003 SE 26th in Topeka, Shawnee County, Kansas. The CI advised that Olson has entered into a conspiracy with a subject named George to import marijuana into Kansas from the West coast. Olson has advised the CI that Olson assists George by driving a pick up truck to the West coast, and bringing back marijuana in the vehicle. The vehicle used belongs to George. The CI knows that George resides across the street from Olson.

"Within the last few weeks George confirmed that this conspiracy existed when George told Olson, in front of the CI, that anytime Olson needed marijuana to sell Olson could get it from George. The CI further advised that, according to Olson, the majority of the marijuana is kept at George's residence, and that Olson gets the marijuana in fifteen pound increments.

"Within the last forty eight hours this CI has been in the residence of 1003 SE 26th in Topeka, Shawnee County, Kansas. While in the residence the CI was shown a quantity of vegetation which Olson represented as being marijuana. The CI stated that the vegetation appeared to be that of marijuana. The amount of vegetation displayed to the CI was, in the CI's estimation, at least one half pound. Olson told the CI that he had at least one additional half pound at the residence.

"A check of the current phone book shows the address of Olson to be 1003 SE 26th in Topeka, Shawnee County, Kansas. Furthermore, on 12-March-1985 the CI took Det. Sgt. KC Blodgett of the Topeka Police Department to the area of 26th and Virginia in Topeka, Shawnee County, Kansas. The CI pointed out 1003 SE 26th as the residence at which Olson resides. The CI also pointed out the residence on the North East corner of 26th and Virginia, said residence being the first residence North of 26th Street on the East side of Virginia. The CI advised that George resides at this residence.

"Wherefore I believe that several offenses against the laws of the State of Kansas have been committed, to wit: conspiracy to sell marijuana and possession of marijuana with the intent to sell, both as provided for by K.S.A. 65-4101 et seq. I further believe that certain items, which are evidence to these crimes, are currently located at both 1003 SE 26th in Topeka, Shawnee County, Kansas AND the first residence North of 26th Street on the East side of Virginia in Topeka, Shawnee County, Kansas.

"I would, therefore, respectfully petition the Court for a warrant authorizing the search of both 1003 SE 26th and the first residence North of 26th on the East side of Virginia, both in Topeka, Shawnee County, Kansas, and the seizure therefrom of: marijuana, items for the sale and or use of marijuana as provided for by K.S.A. 65-4150, all papers and/or documents listing out past drug transactions between George and Gary Olson, any and all papers tending to establish a business relationship for the importation or distribution of drugs between Gary Olson and George, and items that would identify all persons residing at the residences including rent receipts and personal correspondence."

One of the homes searched was the residence of Gary Olson; the other was the residence of George and Patricia Davidson. Numerous items were seized as a result of these searches, including marijuana, cocaine, and drug paraphernalia. Among the persons arrested were the four defendants: Gary Olson, George and Patricia Davidson, and Randall Blakely.

Defendants were charged with various drug related offenses and a single preliminary hearing was conducted on August 27, September 11, and September 12, 1985, before District Court Judge Matthew Dowd. During the course of this hearing, Detective Listrom was questioned by defense counsel who discovered information which defendants believed indicated Detective Listrom had included statements in his warrant application which were intended to mislead Judge Macnish into issuing a warrant. At the close of the preliminary hearing, defendants moved to suppress all of the evidence recovered under the search warrant. Although their motion was denied at this point, the defendants renewed their motion before District Judge Franklin Theis prior to trial. Judge Theis granted the motion to suppress and it is from that order that the State appeals.

Before proceeding to the merits of the consitutional issues raised, we note that "the scope of the constitutional protections afforded by the Kansas Constitution Bill of Rights, Section Fifteen and the Fourth Amendment to the United States Constitution is usually considered to be identical." State v. Fortune, 236 Kan. 248, 250, 689 P.2d 1196 (1984), citing State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983). Accordingly, this court may look to decisions by the United States Supreme Court for guidance in resolving the constitutional issues raised. As another preliminary matter, we note that the State argues Judge Theis erred in considering defendants' motion to suppress since it had been...