State v. Platten

• Decision Date: 05 May 1979
• Docket Number: No. 50174,50174
• Citation: 594 P.2d 201,225 Kan. 764
• Parties: STATE of Kansas, Appellant, v. John Phillip PLATTEN, Appellee.
• Court: Kansas Supreme Court

Page 201

594 P.2d 201

225 Kan. 764

STATE of Kansas, Appellant, v. John Phillip PLATTEN, Appellee.

No. 50174.

Supreme Court of Kansas.

May 5, 1979.

Syllabus by the Court

1. An interlocutory appeal by the State, pursuant to K.S.A.1978 Supp. 22-3603, from an order of the trial court quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission may be taken at any time prior to the commencement of trial and may be taken prior to a preliminary examination.

2. A valid arrest for a felony may be made by an officer without a warrant in a public place when based upon probable cause.

3. Searches conducted without a warrant issued on probable cause are "per se" unreasonable under the Fourth Amendment to the United States Constitution and Section 15 of the Kansas Constitution Bill of Rights subject only to a few specifically established and well-delineated circumstances.

4. The Fourth Amendment and Section 15 of the Kansas Constitution Bill of Rights protect a citizen's reasonable expectations of privacy and one's reasonable expectation of privacy in his own home is entitled to unique sensitivity.

5. The Fourth Amendment and Section 15 of the Kansas Constitution Bill of Rights require an arrest warrant based upon probable cause to validly arrest a person within his own home unless exigent circumstances exist.

6. Exigent circumstances which will allow a valid arrest or search and seizure without a warrant are stated and reviewed.

7. The burden of proof is on the State to show circumstances justifying an exception to the warrant requirement.

8. In an appeal by the State from an order of the trial court suppressing certain physical evidence, the record is examined and it is held: the district court did not err in sustaining defendant's motion to suppress evidence.

Wm. Rex. Lorson, Salina, argued the cause and was on the brief for appellant.

Robert S. Jones, of Norton, Wasserman & Jones, Salina, argued the cause and was on the brief for appellee.

HOLMES, Justice:

This is an appeal by the State pursuant to K.S.A.1978[225 Kan. 765] Supp. 22-3603, from an order suppressing certain physical evidence as being the product of an illegal arrest.

The facts arose from a "buy-bust" narcotics operation conducted by the Federal Drug Enforcement Agency (FDEA), the Kansas Bureau of Investigation (KBI), and the Saline County Sheriff's office.

On March 7, 1978, special undercover agent Bobby Baldwin of the KBI was contacted by one Kenneth Maddox, a resident of Salina. Maddox indicated he had four ounces of cocaine for sale. The record does not disclose any prior dealings with Maddox and he was not acting as an informant or agent. Later that afternoon Baldwin called Maddox to set up the buy. It was agreed they would meet at Sunset Plaza Shopping Center in Salina at 5:30 p. m. the same day. From the initial meeting place they were to proceed to Maddox's partner's house to pick up the cocaine. The various law enforcement agencies involved were alerted and plans made in hopes of "busting" both Maddox and his then unknown partner.

Baldwin, wired with a hidden transmitter monitored by other officers, and agent James Miller, of the FDEA, drove to Sunset Plaza where they awaited Maddox. Several undercover units, who were kept advised via the transmitter, kept them under surveillance. At the agreed time, Maddox arrived in a car driven by Geraldine Dickenson. Maddox advised Baldwin and Miller he had only three ounces of cocaine instead of four and the price, to be paid in advance, was $2,000 per ounce. The agents agreed to these terms but demanded that they be present during the buy from Maddox's partner. Maddox objected, saying his partner's residence could not be revealed. Finally it was agreed the agents would follow Maddox to the vicinity of his partner's residence where they would give Maddox $2,000 to take to his partner's house so he could obtain one ounce of cocaine. Maddox would then return to the agents, and if the cocaine was satisfactory, they would give Maddox an additional $4,000 so he could return to his partner and obtain the remaining two ounces.

Baldwin and Miller followed Maddox and Dickenson to a residential area in Salina where they parked. The other officers, being kept advised over the transmitter, followed and took up observation positions in the area. There the agents gave Maddox $2,000 in marked $100 bills. Maddox left the parked cars, walked around the corner out of the sight of Miller and Baldwin and down the street where one of the other officers observed him enter the front door of the dwelling at 327 North Thirteenth. This dwelling, consisting of three apartments, one of which was occupied by the defendant, had not previously been under surveillance. The only access to defendant's apartment was the front door which opened directly into his apartment.

Minutes later, Maddox came out of the front door, walked back to where agents Miller and Baldwin were parked, and gave them a clear plastic bag containing what was later identified as cocaine. Maddox was immediately placed under arrest and the other officers were so advised.

Two plainclothes and two uniformed officers then went to the front door of 327 North Thirteenth. Upon approaching the house, they could hear movement inside. The officers knocked on the door and, receiving no response, began to beat on the door and one yelled "police officers." This continued for several minutes but still there was no response. Fearing the destruction of evidence, the officers forced open the door and defendant, Platten, who was the sole occupant of the house, was arrested. He was searched for weapons and evidence at that time and seventeen of the one hundred dollar bills were found in his pocket. The remaining three hundred dollars was found on Maddox when he was subsequently searched at the county jail. The residence was secured and Platten remained at the house in the custody of two officers. Based upon the recovery of the seventeen marked bills, the conversations with Maddox heard over the transmitter, and the bag of white powder given to Baldwin and Miller, the other officers obtained a search warrant and returned at 8:50 p. m. to conduct a search of Platten's residence. Several bags of cocaine, marijuana, and unknown pills were found. Platten was charged with one count of sale of a narcotic drug and one count of possession of a narcotic drug (cocaine), K.S.A.1978 Supp. 65-4127a.

Appellee, Platten, prior to the preliminary hearing, filed a motion to suppress the evidence consisting of the seventeen one hundred dollar bills and the drugs and, after a full hearing, both sides filed briefs as requested by the court. The trial court concluded the arrest was improper because an arrest warrant should have been obtained prior to entering the house. Based upon this conclusion the court further ruled that all proceedings occurring after the illegal arrest were also improper and therefore, evidence found on appellee at the time of his arrest and any evidence found pursuant to the search warrant were suppressed as "fruit" of the illegal arrest. From this ruling the State appeals.

At the outset the defendant-appellee raises a jurisdictional challenge contending that no appeal lies from a ruling of the court made prior to a preliminary hearing.

K.S.A.1978 Supp. 22-3603 provides:

"When a judge of the district court, prior to the commencement of trial of a criminal action, makes an order quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission an appeal may be taken by the prosecution from such order if notice of appeal is filed within ten (10) days after entry of the order. Further proceedings in the trial court shall be stayed pending determination of the appeal."

Defendant argues that a preliminary examination is not a trial and that the language of the statute "prior to the commencement of trial" precludes an appeal unless the ruling is made after a preliminary hearing and presumably when the case is ready for trial. Defendant contends the State's proper remedy is to refile the complaint and proceed to seek another preliminary hearing. We do not agree. We are of the opinion that defendant attempts to construe the statute too narrowly. In our opinion the language "prior to commencement of trial" means that at any stage of the proceedings before the actual start of the trial, an interlocutory appeal may be taken from any order of the court quashing a warrant or a search warrant, suppressing evidence or suppressing a confession or admission. K.S.A. 22-3216(4) specifically provides that a motion to suppress illegally seized evidence may be made before or during a preliminary examination. See also, State v. Dailey, 209 Kan. 707, 498 P.2d 614 (1972). Appellee's procedural argument that this court lacks jurisdiction of this appeal is without merit.

This brings us to the principal issue before this court which is to determine whether the defendant's arrest without a warrant and the subsequent searches by officers violated his rights under the Fourth Amendment and Section 15 of the Kansas Constitution Bill of Rights. Section 15 of the Bill of Rights provides:

"The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized."

The Fourth Amendment to the United States Constitution, while not identical, is essentially the same.

Decisions of the United States Supreme Court make it clear that a valid arrest for a felony may be made without a warrant when done in a public place based upon probable cause. See United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) and United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d...