State v. Shively

• Decision Date: 23 July 1999
• Docket Number: No. 78,380.,78,380.
• Citation: 987 P.2d 1119,26 Kan. App.2d 302
• Parties: STATE OF KANSAS, Appellee, v. STEPHEN MEDFORD SHIVELY, Appellant.
• Court: Kansas Court of Appeals

26 Kan. App.2d 302

987 P.2d 1119

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

No. 78,380.

Court of Appeals of Kansas.

Opinion filed July 23, 1999.

Lisa Nathanson and Michael J. Helvey, assistant appellate defenders, and Jessica R. Kunen, chief appellate defender, for appellant.

Joel W. Meinecke and James A. Brown, assistant district attorneys, Joan M. Hamilton, district attorney, and Carla J. Stovall, attorney general, for appellee.

Before GERNON, P.J., ROYSE and GREEN, JJ.

GERNON, J.:

Stephen Medford Shively appeals his convictions on multiple drug counts and one count of aggravated assault, raising several issues, including the violation of his Fourth and Fifth Amendment rights.

Shively shot and killed Officer Tony Patterson, a member of the Topeka Police Department Street Crime Action Team, during a drug raid at his home. The officers executing the drug raid woke Shively while breaking down Shively's door at 3 o'clock in the morning. Shively asserted the affirmative defense of defense of dwelling and was acquitted of all charges related to the shooting. Shively, however, was convicted of possession with intent to sell, sale of marijuana, distribution of marijuana, conspiracy to distribute hallucinogenic drugs, failure to have a drug stamp, possession of drug paraphernalia, and aggravated assault. He appeals these convictions.

Suppression of Evidence

Shively claims the trial court erred in denying his motion to suppress the drug evidence obtained from the search of his residence.

When reviewing the trial court's decision which suppressed evidence seized under a search warrant, great deference is given to the trial court's findings of facts. The ultimate determination of whether the warrant was issued for probable cause, however, is a question of law subject to de novo review. See State v. Longbine, 257 Kan. 713, 717, 896 P.2d 367 (1995).

Shively asserts two arguments to question the constitutionality of the search warrants. First, Shively argues that the initial affidavit, which was incorporated by reference into subsequent search warrants for Shively's residence, is invalid. Second, Shively argues that the first warrant was unconstitutionally executed.

The affidavit supporting a search of Shively's residence was based on information received from a confidential informant (CI). To bolster the credibility of the CI, the affidavit states that the police had been working with the CI for less than 1 month and that the CI had no convictions for dishonesty. According to the affidavit, the CI advised police of marijuana sales at Shively's home and claimed to have witnessed sales by Shively on four occasions. The CI identified Shively through a 1985 mug shot resulting from Shively's previous arrest for possession of marijuana and drug paraphernalia. Finally, the affidavit states that the CI had observed marijuana inside Shively's apartment within the preceding 48 hours. In addition to the information provided by the CI, the affidavit included a description of a controlled purchase in which a CI used police funds to purchase drugs while under police surveillance. The affidavit, however, does not state that the CI made a controlled purchase.

Based on the affidavit, a judge issued a search warrant at 2:25 a.m. on October 12, 1995. The district court upheld the search warrant but made no findings regarding the validity of the affidavit. The trial court merely stated that the "initial search warrant and affidavit attended thereto were ... proper in form and in substance, and that ... there was probable cause existent to issue the warrant."

This court must determine whether the magistrate had a substantial basis for issuing the search warrant by determining whether probable cause existed under the totality of the circumstances. See State v. Gilbert, 256 Kan. 419, 422, 886 P.2d 365 (1994); State v. Ratzlaff, 255 Kan. 738, 743, 877 P.2d 397 (1994). In making that determination, great deference is given to the magistrate's determination. Gilbert, 256 Kan. at 422.

A magistrate is required to assess all of the circumstances presented and make a practical, common-sense decision about whether a crime has been committed or is in the process of being committed and whether there is a fair likelihood that the evidence will be found in the place specified. Gilbert at 256 Kan. at 421.

When an affidavit is founded upon information from an unidentified informant, its validity is not controlled by the reliability of the unidentified informant. State v. Sidel, 16 Kan. App.2d 686, 692, 827 P.2d 1215, rev. denied 250 Kan. 807 (1992). The probable cause determination, however, must be supported by some indication that the informant's information is accurate. Sidel, 16 Kan. App.2d at 692. Therefore, the veracity and basis of knowledge of the CI must be considered as part of the substantial basis for finding probable cause in this case. See Ratzlaff, 255 Kan. at 743.

Shively argues that the affidavit's statements regarding the CI do not establish any indication of the CI's veracity or basis of knowledge. In support of this argument, Shively points to the officer's statement in the affidavit that the CI had no convictions for dishonesty. Shively claims the officer misrepresented the information to the magistrate. Because Shively did not offer proof under oath challenging the honesty of the information in the search warrant affidavit and requesting a Franks hearing, he cannot challenge the honesty of the statements as presented to the magistrate. See State v. Jensen, 259 Kan. 781, 787, 915 P.2d 109, cert. denied 136 L. Ed. 2d 250 (1996).

Here, the CI's veracity is established by two methods. The first method is the affiant's direct statement that the CI had no convictions for dishonesty. The second method is based on the ambiguous controlled purchase paragraph found in the affidavit. Although not specifically stated, it is reasonable to infer that the general paragraph about controlled purchases was included because one had been completed in the course of the investigation. The mere nature of a controlled purchase provides an adequate basis for believing the CI's claims about drug sales at Shively's apartment.

The affidavit indicates that the CI witnessed marijuana sales at Shively's apartment and had recently seen a significant quantity of marijuana there as well. This information demonstrates that the CI based his knowledge of the illegal events on first-hand perception.

Giving proper deference to the magistrate's decision, this court finds that the affidavit adequately established the CI's veracity and basis of knowledge. Considering the totality of the circumstances presented to the magistrate, the affidavit, on its face, supports a finding of probable cause.

If officers seize evidence reasonably relying on a search warrant, the good faith exception bars application of the exclusionary rule. The good faith exception does not apply, however, when the officers seeking the search warrant deliberately misled the magistrate. Longbine, 257 Kan. at 720. In this case, we are required to conclude that the record clearly shows several instances where the officers deliberately misled the magistrate.

The first instance involved the statement regarding the CI's convictions for dishonesty. The CI testified that he did not inform the officers of his criminal history. The requesting officer testified that he did not conduct any independent background investigation of the CI. Consequently, the officers did not actually know the truth of this statement when it was presented to the magistrate.

Another instance relates to the claim that the CI had witnessed Shively selling drugs on four occasions. The CI testified that he did not tell the officers that he had ever seen Shively sell drugs, only that the sales occurred at Shively's apartment. The statement in the affidavit clearly misrepresents the information provided by the CI.

A third instance pertains to the officer's claim that he had been working with the CI for less than 1 month. In fact, the relationship with this informant was limited to little more than 24 hours. Although literally true, the officer's statement mischaracterizes his relationship with the CI. This court rejected the "literally true," but "misleading" approach in State v. Olson, 11 Kan. App.2d 485, 490, 726 P.2d 1347, rev. denied 240 Kan. 805 (1986). This statement also demonstrates the officers' deliberate attempt to mislead the magistrate.

Based on these deliberate misrepresentations, the good faith exception to the exclusionary rule would not apply.

In addition to challenging the validity of the affidavit, Shively argues that the initial search violated his Fourth Amendment right against unreasonable search and seizure. Shively claims that the night-time execution of the warrant and the officers' failure to knock and announce their presence were unreasonable.

First, Shively complains of the night-time execution of the warrant. K.S.A. 22-2510 permits the execution of a search warrant at any time of any day or night. Relying on the common-law tradition against night-time searches, Shively asserts that K.S.A. 22-2510 is unconstitutional because it authorizes a blanket exception to reasonable searches. In our view, this argument takes K.S.A. 22-2510 out of its legislative context. This statute does not attempt to limit any reasonableness analysis required under Section 15 of the Kansas Constitution Bill of Rights or the Fourth Amendment to the U.S. Constitution. K.S.A. 22-2510 is merely permissive, giving legislative approval for executing search warrants at any time in accordance with law enforcement needs and constitutional constraints. Consequently, K.S.A. 22-2510 is not a blanket exception to a reasonableness determination and is not unconstitutional.

Next, Shively claims that the officers' failure to knock and announce their presence was unreasonable. In support, Shively cites ...