State v. Schultz
| Decision Date | 24 July 2009 |
| Docket Number | No. 98,727.,98,727. |
| Citation | 212 P.3d 150 |
| Parties | STATE of Kansas, Appellant, v. Ryan Michael SCHULTZ, Appellee. |
| Court | Kansas Supreme Court |
Jamie L. Karasek, assistant district attorney, argued the cause, and Robert D. Hecht, district attorney, Paul J. Morrison, former attorney general, and Steve Six, attorney general, were with him on the briefs for appellant.
Thomas G. Lemon, of Cavanaugh & Lemon, P.A., of Topeka, argued the cause and was on the briefs for appellee.
This is an appeal filed by the State from the district court's suppression ruling in favor of defendant Ryan Michael Schultz. On petition for review from a Court of Appeals' decision affirming the district court in State v. Schultz, No. 98,727, 2008 WL 713747 unpublished opinion filed March 14, 2008, we must decide whether Schultz was subjected to a custodial interrogation while in his own apartment and, if so, whether statements made and physical evidence discovered as a result of that interrogation must be excluded.
This case began when a pest control worker observed marijuana in Schultz' apartment and informed the apartment's property manager. The manager also stated Schultz had visited her office and "appeared to be on something because his eyes were bloodshot and he was acting a little bit awkward." She contacted law enforcement.
Officers Bradley Rhodd and Joe Kinnett, in full police uniform, responded to the call. They knocked on Schultz' exterior apartment door and heard rustling from inside. They waited approximately 30 seconds and then knocked again. This time the door opened slightly.
Rhodd testified that Schultz was directly behind the door and may have been opening it. Kinnett testified that he pushed the door a bit after it opened and yelled "police officers," and then Schultz met him and Rhodd at the door. Regardless, the officers informed Schultz that they were with the Topeka Police Department and asked if they could enter. Schultz permitted the officers to come into the apartment and stand just inside the door. At that point, the officers smelled a strong odor of marijuana, and Kinnett observed marijuana on a living room coffee table.
Kinnett asked Schultz if anyone else was inside the apartment. Schultz said, "No." Schultz' girlfriend, a juvenile, then walked into view in the living room.
Rhodd explained that the officers had come to the apartment because of the pest control worker's report. Rhodd suggested that it was disrespectful to put the worker in an awkward situation, and Schultz responded that he had not intended to do so. Rather, he said, he had merely forgotten to put the marijuana away. Schultz then admitted to smoking marijuana recently, but he denied possessing any more than a personal use amount.
Rhodd told Schultz that, if Schultz allowed the police to search the apartment without forcing them to apply for a search warrant, they "would be as [un]intrusive as possible" and that Schultz could walk around with them. Schultz consented to the search. His girlfriend objected, but Rhodd said that she could not interfere because she was not the tenant under the apartment lease. When Schultz appeared indecisive, Rhodd continued his effort to persuade him. Rhodd testified:
Rhodd also told Schultz that the police were not interested in a small amount of marijuana but wanted to search for larger quantities. Schultz directed Rhodd to the apartment's spare bedroom. Kinnett stayed in the living room with Schultz' girlfriend.
In the spare bedroom, Schultz pointed to two large packages of marijuana on top of an antique record player. Rhodd later determined that the packages weighed approximately 920 grams. Rhodd also observed a scale. These observations caused Rhodd to decide that he and Kinnett were dealing with more than a personal use amount of marijuana.
Rhodd then asked Schultz to sit down at a dining room table. Schultz complied. Rhodd again explained the process of obtaining a search warrant and, again had Schultz imagine the outcome of a warrant application. Rhodd then asked Kinnett to watch Schultz and his girlfriend while Rhodd left the apartment briefly to retrieve a form for a written consent to search.
Schultz signed the form after it was read aloud to him. He testified that he did so because the officers asked him to do so, and he admitted that neither officer shouted or threatened him. The form included a statement that Schultz could refuse to consent.
At some point during the encounter in the apartment, Schultz' girlfriend asked if she could leave. The police told her she could not.
After signing the consent form, Schultz directed Rhodd to his bedroom closet, where he pulled out a large duffel bag. Inside, Rhodd discovered several empty sandwich bags and more than 1300 grams of marijuana packaged like bricks. Rhodd asked Schultz to go back to the living room and wait for him. Schultz complied. Rhodd continued to search the bedroom, where he found an empty cooler and detected a strong odor of marijuana. He also discovered two plastic bags of fake marijuana and a personal use amount of marijuana on a night stand.
Rhodd then asked Schultz if he had any firearms in the apartment. Schultz acknowledged that there were firearms in his bedroom closet. Rhodd retrieved two unloaded shotguns, one unloaded rifle, and an unloaded paintball gun from the closet. Rhodd then noticed the marijuana Kinnett had seen earlier on the coffee table.
Rhodd arrested Schultz and drove him to the police station. Schultz did not receive his Miranda warnings until after he arrived at the station.
Both officers testified that Schultz was very cooperative throughout the apartment encounter. They also testified that he never revoked his initial spoken consent to search. Rhodd said that, had Schultz asked the officers to leave, they would have done so, but then would have secured the premises and applied for a search warrant. Rhodd acknowledged that Schultz was not free to leave the apartment once the officers entered it and smelled marijuana.
The State charged Schultz with possession of marijuana with intent to sell pursuant to K.S.A.2008 Supp. 65-4163(a)(3) and failure to affix a drug stamp pursuant to K.S.A. 79-5208.
Schultz moved to suppress the physical evidence uncovered at his apartment, as well as all statements he made before being given his Miranda warnings. Some of these statements had been made in response to questions from the officers, and some had not.
The district judge determined that Schultz' initial spoken consent to search was voluntary, but the encounter with the officers was transformed into a custodial interrogation when Rhodd discovered the marijuana in the spare bedroom and began treating Schultz like a suspect. In view of Rhodd's direction to Schultz to sit at the dining room table and the denial of the girlfriend's request to leave, the district judge ruled that a reasonable person in Schultz' position would not have believed he was free to leave the apartment. The district judge suppressed all physical evidence found after the point when the custodial interrogation began, as well as all incriminating statements made by Schultz between that point and the receipt of his Miranda warnings at the police station.
On the State's appeal to our Court of Appeals, two members of the panel affirmed the district court's decision, holding that Schultz was in custody and thus entitled to receive Miranda warnings as soon as Rhodd told Schultz to sit down at the dining room table. Op. at 156. The judges rejected the State's assertion that the initial spoken consent was never revoked, apparently viewing the controlling issue as whether Schultz' eventual signature on the written consent form was voluntary. The two members of the panel indicated that this voluntariness assessment would determine whether the written consent purged any taint arising from what they viewed as combined Miranda Fourth Amendment violations. Concluding the written consent was involuntary, the judges observed:
The two judges also wrote that the State had advanced no persuasive authority to support its "bold argument" that nontestimonial evidence may be admitted even if a violation of a criminal defendant's Fifth Amendment right has occurred. Op. at 156.
Court of Appeals Judge Thomas E. Malone concurred only in his fellow Court of Appeals judges' result. Op. at 156-57.
We granted the State's petition for review. The State argues that the Court of Appeals' and district court's decisions conflate Fourth and Fifth Amendment concepts. The State also asserts that, even if this court decides Schultz was in custody for purposes of Miranda, the physical evidence seized during the ensuing search should be admissible because the fruit of the poisonous tree doctrine does not apply when the Fifth Amendment rather than the Fourth Amendment is at issue.
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