State v. Smith, s. 61749
| Decision Date | 28 October 1988 |
| Docket Number | Nos. 61749,61750,s. 61749 |
| Citation | 243 Kan. 715,763 P.2d 632 |
| Parties | STATE of Kansas, Appellant, v. Larry Z. SMITH, Appellee. STATE of Kansas, Appellant, v. Leiana J. SMITH, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The Fourth Amendment to the United States Constitution is made applicable to the various states by the Fourteenth Amendment.
2. A search by a private citizen, who is not acting as an agent of the State, is not subject to the Fourth Amendment.
3. Administrative searches by government officials or agents, even though they are not law enforcement persons, are subject to the warrant and reasonableness requirements of the Fourth Amendment.
4. The basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.
5. The conduct of a private person acting independently and not under the authority or direction of the State is not included in the proscriptions of the Fourth Amendment of the United States Constitution or section 15 of the Kansas Bill of Rights.
6. The underlying rationale for application of the exclusionary rule is to deter law enforcement and other government officials and agents from unreasonable intrusions upon the lives and property of citizens.
7. Under the facts of the present case, the inadvertent discovery of physical evidence by a government employee is not subject to the Fourth Amendment and the exclusionary rule when the employee was acting totally outside the scope of his employment and without instigation of or collusion with any other government officials, agents, or entities. Under the facts herein, the actions of the employee were tantamount to those of a private citizen.
Leonard J. Dix, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellant.
Edward E. Bouker, of Herman & Bouker, Hays, argued the cause and was on the brief for appellees.
The State of Kansas, pursuant to K.S.A. 22-3603, appeals from a pretrial order suppressing physical evidence in two companion cases on the basis that the evidence had been obtained as a result of an unreasonable search and seizure in violation of the Fourth Amendment. The two cases have been consolidated on appeal and were transferred to the Supreme Court pursuant to K.S.A. 20-3018(c).
The facts are not disputed. On October 3, 1987, Curtis L. Smee was performing his duties at Webster State Park as an employee of the State Department of Wildlife and Parks. He was responsible for collecting trash from the park's trash barrels. In carrying out those duties, he stopped at the park's Necessary Shop, apparently owned and operated by the defendants, Larry Z. and Leiana J. Smith. The Necessary Shop sold fish bait and other items to park visitors. The shop displayed a "closed" sign and its trash barrel was empty. While checking it, however, Smee heard an odd hissing sound like water running or spraying. He circled the building to locate the source of the noise.
Attached to the Necessary Shop by an enclosed walkway was the trailer home of the shop's proprietors, the defendants herein. Smee located a leaking hose from a water cooler, but it was not the source of the noise. He continued on around the trailer house and discovered its rear door standing open. It appeared to have been broken into or forced open. He then entered the house and could hear the hissing noise more clearly. He proceeded through the house in the direction of the noise and found a leaking hose in the runway between the shop and the defendants' home. He turned the water off and then reentered the trailer house for the purpose of securing the open door. In the house he noticed a cupboard door standing open and on one of its shelves he saw a water pipe and several bags containing what appeared to be marijuana. He walked to the cupboard to get a closer look, then proceeded on to the rear door and, from the interior, secured its hasp with a screwdriver. He then walked back through the trailer, into the shop, and out the shop's front door, locking it behind him.
Later, Smee informed the park rangers of what he had seen. The rangers contacted the sheriff's office, which in turn used the information provided by Smee to secure a search warrant. Law enforcement officers seized numerous items from the trailer, including about five ounces of marijuana, several pipes, and two packages of rolling papers. The defendants were each charged with one count of possessing marijuana with intent to sell, K.S.A.1987 Supp. 65-4105(b)(1); one count of possessing drug paraphernalia, K.S.A. 65-4152: one count of possessing controlled substances upon which no tax had been paid, K.S.A.1987 Supp. 79-5208; and one count of conspiracy to possess marijuana with intent to sell, K.S.A. 21-3302 and K.S.A.1987 Supp. 65-4127b.
The defense filed a motion to suppress the physical evidence as the fruit of an unreasonable search by Smee in violation of the protections guaranteed by the Fourth Amendment. Following a hearing at which Smee testified, the trial court sustained the motion. The State then appealed. We reverse the trial court.
The Fourth Amendment to the United States Constitution, which is made applicable to the various states by the Fourteenth Amendment, reads:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
In the instant case, the search by law enforcement officers was pursuant to a warrant issued upon probable cause as set forth in the sheriff's affidavit. However, the information in the sheriff's affidavit was obtained from Smee as a result of his warrantless entry into the appellees' property. It is the entry and discovery of the marijuana and paraphernalia by Smee which are alleged to have violated the Fourth Amendment safeguards under the "fruit of the poisonous tree" doctrine as promulgated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and its progeny.
The narrow issue before us is whether the fact that Smee was a State employee engaged in his job of collecting trash requires the exclusion of the physical evidence he observed during his entry into the Smiths' residence and business property. It is generally recognized, and this court has held, that a search by a private citizen, who is not acting as an agent of the State, is not subject to the Fourth Amendment. State v. Miesbauer, 232 Kan. 291 293, 654 P.2d 934 (1982); State v. Boswell, 219 Kan. 788, 793, 549 P.2d 919 (1976) (citing Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 [1921], and Annot., 36 A.L.R.3d 553). The corollary, of course, is that searches by agents of the State are subject to constitutional restrictions. This court has held also that the kind of "search" subject to the Fourth Amendment and to Section 15 of the Kansas Constitution's Bill of Rights impliedly involves an exploratory investigation. State v. Yates, 202 Kan. 406, Syl. p 1, 449 P.2d 575 (1969). In this case, Smee took it upon himself to determine the source of the hissing noise he heard while conducting his duties as a State employee. In doing so, he approached the house trailer, which he entered in search of the source of the noise. Appellees contend, and the district court held, that the unauthorized entry by Smee was conducted in the course of his duties as a State employee, and therefore the Fourth Amendment and the exclusionary rule required exclusion of all evidence which resulted from that initial entry.
In the present case there is no contention that Smee had any connection with the park rangers, the sheriff, or any other law enforcement agency. His entry into the Smith property was not an investigatory search made in collusion with law enforcement officers or any other government employees or officials. Smee's actions were found to be in good faith and, as the trial judge stated, he "was apparently acting as a good neighbor" when he made his unauthorized entry into the Smiths' property. The court also found there were no exigent circumstances which would justify the warrantless search as an exception to the general rule that all searches must be conducted pursuant to a warrant supported by probable cause for the issuance of the warrant. Although it may be argued that the entry by Smee and the inadvertent discovery of the marijuana and paraphernalia was not a "search" in the usual connotation of the term, for the purposes of this opinion we will consider it as a search for Fourth Amendment analysis.
The trial court concluded that because Smee was a government employee his actions in entering the Smith property "are constitutionally subject to the Fourth Amendment's prohibition against unreasonable searches and seizures." In doing so the court stated:
"In New Jersey v. T.L.O., 469 U.S. 325, [83.L.Ed.2d 720], 105 S.Ct. 733 [1985], the Supreme Court recognized that the Fourth Amendment's prohibition on unreasonable searches and seizures applies to searches conducted by school officials as well as law enforcement officials. Speaking for the majority of the Court, Justice White said, at page :
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