State v. Shively

• Decision Date: 10 March 2000
• Docket Number: No. 78,380.,78,380.
• Parties: STATE OF KANSAS, Appellee, v. STEPHEN MEDFORD SHIVELY Appellant.
• Court: Kansas Supreme Court

268 Kan. 589

999 P.2d 259

STATE OF KANSAS, Appellee, v. STEPHEN MEDFORD SHIVELY Appellant.

No. 78,380.

Supreme Court of Kansas.

Opinion filed March 10, 2000.

Craig H. Durham, assistant appellate defender, argued the cause, and Michael J. Helvey, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with him on the briefs for appellant.

Tony W. Rues, assistant district attorney, argued the cause, and Joel W. Meinecke and James A. Brown, assistant district attorneys, Joan M. Hamilton, district attorney, and Carla J. Stovall, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

LARSON, J.:

Stephen Medford Shively appealed his convictions of aggravated assault and five drug charges (possession with intent to sell an hallucinogenic drug, sale of marijuana, conspiracy to distribute a hallucinogenic drug, possession of drug paraphernalia, and failure to pay drug tax.) The Court of Appeals affirmed all of Shively's convictions. We granted Shively's petition for review on the "single issue of no-knock search warrants."

Factual and procedural background

We limited the scope of review granted in this case as is allowed pursuant to Rule 8.03(g)(1) (1999 Kan. Ct. R. Annot. 53). We consider only that portion of the Court of Appeals' decision in State v. Shively, 26 Kan. App.2d 302, 987 P.2d 1119 (1999), encompassed by the limited issue on review. Specifically, we consider the Court of Appeals' holding that the Topeka Police Department Street Crime Action Team (SCAT) unconstitutionally executed a middle-of-the-night search warrant on Shively's residence but that the drug evidence seized at a later time as the result of the lawful execution of a later search warrant was properly admitted.

The facts leading to the tragic result in this case are in great dispute only as to what was said, heard, done, and justified during the few seconds that entry into Shively's house was obtained. The remaining facts are not in great dispute except as to their legal and constitutional effect.

On October 12, 1995, around 2:30 a.m., a SCAT officer obtained a search warrant based on an affidavit containing information from a confidential informant (CI), who the affiant claimed had been working with the police for less than one month and had no convictions for dishonesty. The CI was alleged to have reported that Shively sold marijuana at his residence on at least four occasions, observed at least one pound of marijuana inside Shively's apartment within the last 48 hours, and reported seeing no weapons or animals inside the residence.

After obtaining the search warrant, the SCAT officers attempted to enter Shively's residence for a surprise drug raid at around 3 a.m. by battering down two doors to the front entrance. Shively was awakened by the noise and ran with a gun toward the front foyer to investigate. He testified that through a broken panel in the door, he saw shadowy figures trying to break in, at which time he fired his gun in the direction of these individuals, resulting in bullets striking and killing officer Tony Patterson.

The State contended that Shively knew it was the police when he fired his weapon. Officer McKinley testified that he yelled, "`Police, search warrant,'" during a pause in the battering of the second door and before Shively fired. Shively claimed he did not hear the police declare their identity and did not know it was the police when he fired his weapon.

Shively was arrested and removed from the home. Because of the shooting of Officer Patterson, the police did not at that time search for any items but rather sealed off the residence after conducting a quick search of the premises for other persons.

Around 10 a.m. the same morning, a second search warrant was obtained, authorizing the search for the items stated in the first warrant (marijuana, evidence of sale or use of marijuana or fruits or instrumentalities of such offense, and items identifying persons residing in the residence), plus additional items. The affidavit seeking the second warrant incorporated the original affidavit and also included information about the events which had transpired during the earlier entry. The police executed the second search warrant shortly thereafter, and marijuana, money, and drug paraphernalia were among the items seized from Shively's apartment.

Shively filed several motions to suppress the evidence found during the search of his home. In one motion, he argued that the initial search warrant was invalid because the supporting affidavit, on its face and from its four corners, failed to provide probable cause. This motion was submitted on the basis of the warrant, supporting affidavit, and the pleadings. No proof was offered under oath challenging the honesty of the information in the search warrant affidavit, and a Franks v. Delaware, 438 U.S. 154, 57 L. Ed.2d 667, 98 S. Ct. 2674 (1978), hearing was not requested. The trial court found the warrant was supported by probable cause, and the Court of Appeals, relying on State v. Jensen, 259 Kan. 781, 787, 915 P.2d 109, cert. denied 519 U.S. 948 (1996), held that Shively could not later challenge the honesty of the statements as presented to the magistrate. Shively, 26 Kan. App.2d at 307.

In a separate motion, Shively argued that all the seized evidence should be suppressed because of the unconstitutional execution of the no-knock entry. A suppression hearing was held on this and all other motions to suppress.

Testimony showed that SCAT officers had developed a pattern of executing drug search warrants as "dynamic entries" by breaking the door with a battering ram without knocking. Officer Voight testified that 5 to 10 percent of the warrants SCAT officers served were "knock and announce." In this case, the amount and size of the drugs expected would not be easily disposed of, although it was stated that the potential for destruction of the evidence was always a concern in executing a search warrant where drugs were anticipated.

An additional concern of the officers was the presence and likelihood that weapons would be used to protect cash and drugs. However, in this case, the affidavit utilized to obtain the search warrant stated that the CI did not see any weapons inside the house. Unfortunately, the events which came to pass during the first entry revealed that this latter statement was misleading.

The trial court found the no-knock entry was justified by the circumstances. In this ruling, the court acknowledged there is always a potential for danger to the officers in a raid, but believed that the expectation of there being a weapon in the house in this case was perhaps "flimsy." However, the court stated it was "going to rely on the potential of destruction of the contraband in denying the motion to suppress." Shively's motions for reconsideration of the suppression issues were also denied. All of the drug evidence was admitted at trial over Shively's objection, and he was found guilty of all of the drug-related charges, as well as aggravated assault.

The Court of Appeals, relying on Wilson v. Arkansas, 514 U.S. 927, 131 L. Ed.2d 976, 115 S. Ct. 1914 (1995), and Richards v. Wisconsin, 520 U.S. 385, 396, 137 L. Ed.2d 615, 117 S. Ct. 1416 (1997), held that the record did not support the State's position that exigent circumstances required a no-knock entry and concluded that the initial search warrant was unconstitutionally executed. We will discuss this ruling in more detail as it is the centerpiece of our grant of a limited petition for review.

Although the Court of Appeals held the first search was unconstitutionally executed as a no-knock search without sufficient exigent circumstances, it held that the drug evidence against Shively was obtained under the second search warrant, which was based on an affidavit with sufficient basis in truth and was constitutionally sufficient. Because there was no tainted evidence seized under the initial search warrant, and because the police did not rely on any additional information received during the raid to establish probable cause for the second warrant regarding Shively's drug activity, the Court of Appeals, relying on State v. Daly, 14 Kan. App.2d 310, 315, 789 P.2d 1203, rev. denied 246 Kan. 769 (1990), held the fruit of the poisonous tree doctrine did not apply. Shively, 26 Kan. App.2d at 311.

With this holding, the Court of Appeals affirmed all of Shively's convictions. We granted the limited petition for review. Because we did not grant review on any part of the petition for review related to Shively's conviction for aggravated assault, that conviction is final. The State has also filed a separate appeal in case No. 77,100 on questions reserved pursuant to K.S.A. 22-3602(b)(3), and that appeal is this day decided.

Analysis

The limited issue which we review is the Court of Appeals' ruling on the no-knock execution of the search warrant, which in turn requires an examination of the trial court's ruling. We have held that the trial court's denial of a motion to suppress evidence will be upheld on review if it is supported by substantial competent evidence. State v. Garcia, 250 Kan. 310, 318, 827 P.2d 727 (1992). In State v. Vandiver, 257 Kan. 53, 58, 891 P.2d 350 (1995), we instructed that when reviewing a trial court's decision as to the suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court, but the ultimate determination of the suppression of the evidence is a legal question requiring independent appellate determination.

Shively's appeal, when argued, presented an issue of first impression in Kansas regarding when the no-knock execution of a search warrant is constitutionally reasonable under the Fourth Amendment in light of Wilson v. Arkansas, 514 U.S. 927. But, by the time the Court of Appeals' Shively opinion was filed we had determined the no-knock entry...