State v. Sumner

• Decision Date: 09 December 1972
• Docket Number: No. 46807,46807
• Citation: 210 Kan. 802,504 P.2d 239
• Parties: STATE of Kansas, Appellant, v. Douglas M. SUMNER, Appellee.
• Court: Kansas Supreme Court

Page 239

504 P.2d 239

210 Kan. 802

STATE of Kansas, Appellant, v. Douglas M. SUMNER, Appellee.

No. 46807.

Supreme Court of Kansas.

Dec. 9, 1972.

Rehearing Denied Jan. 19, 1973.

Syllabus by the Court

1. It is proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed, that he establish that he himself was the victim of an invasion of privacy. To establish 'standing' it is necessary that the movant claim either to have owned or possessed the seized property, or to have had a possessory or proprietary interest in the premises searched.

2. The record in an interlocutory appeal concerning the lawfulness of a search and seizure is examined, and as more fully set forth in the opinion, it is held: The district court erred in concluding the state failed to show the appellee had no standing to challenge the lawfulness of the search and seizure.

Benjamin L. Burgess, Jr., Asst. County Atty. (Vern Miller, Atty. Gen., on brief), for appellant.

Lane H. Cronhardt, Hutchinson, for appellee.

FATZER, Chief Justice:

This is an interlocutory appeal pursuant to K.S.A. 60-2102(b) and Rule No. 5 of this court. There is a single issue to be resolved. The appellant, the state of Kansas, contends the district court erred in suppressing physical evidence, seized by the Reno County and Harvey County sheriffs, which related to the prosecution of the appellee, Douglas M. Sumner, for burglary and felony theft.

On May 3, 1972, the appellee filed a motion pursuant to K.S.A. 1971 Supp. 22-3216 requesting the district court to suppress certain evidence which was secured as a result of the search of a house located on East 4th Street, in Hutchinson. The relevant allegations of the motion to suppress were that (1) the contraband was seized without a valid search warrant, (2) the search of the premises was not voluntary, and (3) no consent was obtained from the occupants of the house prior to the search by the law enforcement officers.

On May 4, 1972, the district court heard the arguments of counsel based upon a stipulated set of facts:

'By virtue of a search warrant issued by the District Court of Harvey County, Kansas, the Reno county sheriff, his deputy, Charles Maddox, and the Harvey County sheriff went to premises of James W. Starks, located in Harvey County. Mr. Starks informed them the stolen goods were not there but were located in a house on East 4th Street, Hutchinson, Reno County, Kansas. Mr. Starks was then placed under arrest for burglary and grand larceny at that time and then transported to the East 4th residence occupied as tenants by Duane Carey and Max Miller. (1419 East 4th). Mr. Starks knocked on the door and same was opened by Max Miller. The law enforcement officers identified themselves as such whereupon Mr. Starks told Mr. Miller that he had come for the things he had left on the prior day. Mr. Miller did not say the officers could or could not enter . . . he said nothing. The officers and Mr. Starks entered the premises and found the evidence for which they had been looking. No search warrant was ever obtained or issued to search the premises at 1419 East 4th, Hutchinson, Kansas. Said evidence was taken by the officers with no receipt given in compliance with K.S.A. 22-2512. Subsequently, a major portion of the property belonging the Alfred Weins was returned to said owner by authority of the Reno county attorney but a sufficient amount was retained to be more than $50 in value. Permission to return said property to Mr. Weins was not sought or obtained from the defendant.'

On May 6, 1972, the stipulation was amended in a subsequent opinion of the district court. The supplemental memorandum corrected the stipulation in the following manner:

'That portion of the stipulated facts reported as 'Mr. Starks told Mr. Miller he had come for the things he had left on the prior day' should be changed to show Mr. Starks said, 'We have come for the goods' or 'We have come to pick up the stuff."

At the pretrial suppression hearing, the state vigorously challenged the appellee's standing to object to the search and seizure in question. In a memorandum opinion the district court sustained the appellee's motion to suppress upon the grounds the state failed to show the appellee had no standing to complain, or interest in the premises searched or the property seized, and that he was not required to establish such an interest.

This court has previously considered the question of standing to object to the infringement of the constitutional right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures. It has been held it is proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed,...