State v. Regelman

• Decision Date: 07 December 2018
• Docket Number: No. 116,398,116,398
• Citation: 430 P.3d 946
• Parties: STATE of Kansas, Appellant, v. Tyler REGELMAN, Appellee.
• Court: Kansas Supreme Court

430 P.3d 946

STATE of Kansas, Appellant,
v.
Tyler REGELMAN, Appellee.

No. 116,398

Supreme Court of Kansas.

Opinion filed December 7, 2018.

Tony Cruz, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellant.

Amber Cabrera, assistant public defender, of North Central Regional Public Defender's Office, of Junction City, argued the cause and was on the briefs for appellee.

The opinion of the court was delivered by Biles, J.:

430 P.3d 949

The State appeals a district court's order suppressing drug-related evidence seized during a residential search supported by a warrant. The Court of Appeals affirmed the suppression order. State v. Regelman , No. 116,398, 2017 WL 1197135, at *6 (Kan. App. 2017) (unpublished opinion). We consider: (1) whether Miranda warnings were required before the defendant made incriminating statements used to support the warrant; and (2) whether the officer's testimony that he detected the smell of raw marijuana coming from the residence supported the probable cause for the search warrant. We affirm in part, reverse in part, and remand the case to the district court for further proceedings.

We agree with the lower courts that Miranda warnings were required under the circumstances presented, so the incriminating

430 P.3d 950

statements were properly suppressed since the warnings were not given before the statements were made. But we disagree with the lower courts about the smell of raw marijuana failing to provide probable cause under the case's facts. See State v. Hubbard , 308 Kan. ––––, ––––, 430 P.3d 956 (this day decided) (holding the totality of the circumstances surrounding a police officer's detection of the smell of raw marijuana emanating from a residence can supply probable cause to believe the residence contains contraband or evidence of a crime).

FACTUAL AND PROCEDURAL BACKGROUND

Junction City police officers visited Tyler Regelman's home to conduct a welfare check after his employer reported him missing. Officer Douglas Cathey later testified he could smell raw marijuana while standing at the front door waiting for Regelman to answer after the officer rang the doorbell. When Regelman opened the front door, Cathey testified the marijuana smell became stronger.

Cathey asked questions related to the wellness check and then almost immediately inquired about the marijuana odor. Regelman denied smelling anything and refused to allow the officers inside the house. Cathey then replied, "Okay. Well, what we are going to do is, I'm going to apply for a search warrant." Regelman acknowledged this. The officer then said, "[I]n the meantime, we're just going to hang out here." Regelman replied, "[I] don't smoke, so I'm going to leave."

Regelman began to walk down the porch steps and away from the house, toward the street. Cathey instructed: "Mr. Regelman stop walking." Regelman complied, turned around, and repeated, "I don't smoke or anything." Cathey then told Regelman, "Okay, you can either sit on the steps or sit in my patrol car. Which one do you want to do?" Regelman asked to return inside his house, but Cathey told him, "No you may not." This all occurred less than a minute after Regelman answered the door.

After some additional back and forth, Regelman said, "I'm not hurting anybody but myself." Cathey asked what he meant. An audio recording reflects the following exchange:

"[Regelman]: I mean, I've got a problem. I know I've got a problem. I'm not trying to hide it or anything.

"[Officer Cathey]: What's your problem?

"[Regelman]: I do drugs. I'm not trying to hide it.

"[Officer Cathey]: Okay. Just marijuana or do you do anything worse?

"[Regelman]: That's it, man. I'm not trying to hurt anybody but ... I mean the only person I'm hurting is myself."

Cathey then told Regelman he needed to be handcuffed as a precautionary measure after Regelman kept trying to put his hands in his pockets. Cathey handcuffed Regelman about two minutes into the exchange.

About a minute after being handcuffed, Regelman said, "Can we please not do this, man .... Just give me a chance. ... I'll get rid of everything." Approximately four minutes after being handcuffed, Regelman said, "You guys can just go in the house. It's next to the couch." Cathey responded that they could no longer do a consent search because Regelman was in handcuffs, so they would wait for the warrant. Cathey left the scene to ask a judge for a search warrant.

In his affidavit supporting the search warrant application, Cathey summarized Regelman's statements on the porch as: "Mr. Regelman repeatedly begged me to cut him a break and advised he had a drug problem. Mr. Regelman also told me I should just take him to jail and that ‘The stuff’ was all sitting by the couch and that he would show it to me." The officer also described noticing the marijuana smell, stating:

"Upon my arrival, I rang the front door bell. While waiting for an answer, I smelled a strong odor of what I believed, based on my training and experience, to be raw marijuana. A moment later a white male, who identified himself as Mr. Regelman answered the door. He stepped out onto the porch and closed the door behind him. When he stepped out of the house, the odor of marijuana grew even stronger. I note[d] Mr. Reglema[n]'s eyes were very

430 P.3d 951

bloodshot. I know this to be a common indication o[f] marijuana use."

A judge granted the search warrant for Regelman's residence. Cathey executed it, finding about 1 ounce of marijuana, various pipes, and a scale. A majority of the drug-related items were inside an inch-thick wooden box next to the couch, which was several feet from the front door. For the first time, Cathey read Regelman his Miranda rights.

Regelman was charged with possession of marijuana with intent to distribute within 1,000 feet of a school zone, a severity level 3 nonperson drug felony; possession of drug paraphernalia, a severity level 5 nonperson drug felony; possession of marijuana, a class A nonperson misdemeanor; and possession of drug paraphernalia, a class A nonperson misdemeanor.

Regelman filed a motion to suppress the evidence from the search. Cathey testified for the State at a suppression hearing. The court admitted into evidence the body camera audio/video recording, the search warrant, and Cathey's affidavit. The district court granted the motion to suppress.

The district court first concluded Regelman's statements about drug use occurred while he was unlawfully detained and under circumstances in which Miranda warnings should have been given. The district court ruled the questioning violated " Miranda because Mr. Regelman was not given the warnings even though he was detained for close to an hour." Second, the court relied on State v. Huff , 278 Kan. 214, 221-22, 92 P.3d 604 (2004), which it read to hold that the smell of marijuana by itself does not provide probable cause for a search. Finally, the court ruled the good-faith exception to the exclusionary rule did not apply because a well-trained officer should know the smell of marijuana alone was insufficient to find probable cause. The State filed an interlocutory appeal.

The Court of Appeals affirmed. In doing so, the panel agreed with the State that investigatory detentions—Terry stops—are not subject to Miranda protections. Regelman , 2017 WL 1197135, at *3 (citing State v. Lewis , 299 Kan. 828, 834-35, 326 P.3d 387 [2014] [A custodial interrogation is distinguished from an investigatory interrogation, which occurs as a routine part of the fact-finding process before the investigation reaches the accusatory stage.] ). Then, after expressing a rule that "[d]uring a Terry stop, a person is not free to terminate the encounter but nevertheless is not in custody," the panel applied the custody analysis from this court's Fifth Amendment caselaw to conclude Regelman's "continued detention exceeded the limits of investigatory detention and became custodial." 2017 WL 1197135, at *3-4.

After reaching that conclusion, the panel returned to Fourth Amendment caselaw, rejecting the State's argument that the detention was reasonable under Illinois v. McArthur , 531 U.S. 326, 329, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (holding warrantless, temporary seizure of house, accomplished by excluding homeowner from reentering, was reasonable when officers possessed probable cause for the warrant; there was cause to believe evidence would be destroyed if resident permitted to reenter; exclusion was limited to time reasonably necessary to get warrant; and officers reasonably attempted to balance law enforcement needs with homeowner's interest by tailoring the seizure to the circumstances). 2017 WL 1197135, at *5.

The panel further held marijuana odor alone was insufficient to support probable cause for a search warrant. Regelman , 2017 WL 1197135, at *5-6. Finally, the panel held the good-faith exception did not apply because the officer should have known the search warrant lacked probable cause and that Regelman was in custody and should have been given Miranda warnings. Regelman , 2017 WL 1197135, at *6.

This court granted the State's petition for review. Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for...