State v. Whitehead, 52162

• Decision Date: 17 January 1981
• Docket Number: No. 52162,52162
• Citation: 622 P.2d 665,229 Kan. 133
• Parties: The STATE of Kansas, Appellee, v. Ronnie G. WHITEHEAD, Appellant.
• Court: Kansas Supreme Court

Page 665

622 P.2d 665

229 Kan. 133

The STATE of Kansas, Appellee, v. Ronnie G. WHITEHEAD, Appellant.

No. 52162.

Supreme Court of Kansas.

Jan. 17, 1981.

Syllabus by the Court

1. Under K.S.A. 22-3216(2), where a defendant moves to suppress illegally seized evidence, the motion must be in writing and must state facts showing wherein the search and seizure were unlawful.

2. An illegal search can only violate the rights of those who have a legitimate expectation of privacy in the invaded place. The basic test to determine whether or not a person present on the premises at the time of the search has standing to challenge the validity of the search is not whether that person had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.

3. Under the factual circumstances set forth in the opinion, where, at the time an apartment was searched by the police, the defendant was dressed in his pajamas, clothing of defendant was found in the closet, and defendant stated he lived there on an irregular basis, the defendant had a legitimate expectation of privacy in the area searched which give him standing to challenge the legality of the search under the Fourth Amendment to the United States Constitution.

4. The record on appeal is examined in a criminal case and it is held: (1) The affidavit for a search warrant established probable cause for the issuance of the search warrant; (2) the trial court did not err in refusing to require the state to disclose the name of an informant; (3) the trial court did not err in ruling on the admissibility of certain evidence; (4) the evidence was sufficient to sustain the verdicts of guilty of possession of heroin; and (5) the sentences imposed were not so excessive as to constitute cruel and unusual punishment.

Leonard F. Watkins, Jr., Wichita, argued the cause and was on the brief for appellant.

Ronald D. DeMoss, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., Vern Miller, Dist. Atty. and Douglas R. Roth, Asst. Dist. Atty., were on the brief for appellee.

PRAGER, Justice:

This is a direct appeal from convictions on two counts of possession of heroin (K.S.A. 1979 Supp. 65-4127a). Convictions obtained in the first trial were reversed in State v. Whitehead, 226 Kan. 719, 602 P.2d 1263 (1979), and a new trial directed. The criminal charges followed the search of two residences in Wichita by police officers, acting under the authority of two separate search warrants.

Count two of the information charged possession of heroin seized in a search at 1709 Looman, Wichita, on December 29, 1977. Wichita police officers entered that residence looking specifically for heroin. They found defendant, Ronnie G. Whitehead, in the master bedroom in his pajamas. Also present in the residence were Diane Presley and a young child. In the master bedroom, the police found two balloons of heroin under some women's clothing in a dresser drawer, a torn balloon on the floor of the bedroom closet, and a partial balloon in a brown paper sack near the closet. The state presented evidence that the defendant lived at the Looman address. At the time of the raid, the police discovered in the closet men's clothing belonging to defendant Whitehead and a utility bill addressed to Ronnie G. Whiteman, 1709 Looman, Wichita. Following the raid, the defendant and Presley were both arrested for possession of heroin.

Count one of the information also charged possession of heroin and was the result of a search conducted by Wichita police officers under authority of a search warrant for the residence at 2422 East 20th Street, Wichita, on January 21, 1978. When the police knocked on the door of the residence and announced themselves, they heard running inside. They forced open the door and observed Marshall Bottoms run to the bathroom where they heard the toilet flush. Whitehead and Otis Goodwin ran into a bedroom and sat on the bed. Between them on the bed, the police found a gold compact containing eight balloons of heroin. Defendant, Bottoms, and Goodwin were all arrested for possession of heroin.

On this appeal, the first claim of error is the district court's denial of defendant's motion to suppress, as evidence, the heroin seized in the search of the Looman residence under count two. The motion to suppress was not filed by defendant until after the case was reversed on the first appeal. It appears that, at the time of the hearing on the motion to suppress, the affidavit supporting the search warrant issued for the search of the Looman residence had been misplaced in the court file and had not been made available to defense counsel. However, at that time the affidavit supporting the search warrant for the residence at East 20th Street was available. The defendant's motion to suppress was filed pursuant to K.S.A. 22-3216, which provides in part as follows:

"22-3216. Motion to suppress illegally seized evidence. (1) Prior to the trial a defendant aggrieved by an unlawful search and seizure may move for the return of property and to suppress as evidence anything so obtained.

"(2) The motion shall be in writing and state facts showing wherein the search and seizure were unlawful. The judge shall receive evidence on any issue of fact necessary to determine the motion and the burden of proving that the search and seizure were lawful shall be on the prosecution.... (Emphasis supplied.)

It should be noted that defendant's motion to suppress, although in writing, did not state facts showing wherein the search and seizure were unlawful as required by section (2). The motion stated only the legal conclusion that the "seizures were the result of an illegal search of these premises and in violation of defendant's constitutional rights." At the hearing on the motion, defendant's only objection to the search was the absence of a written affidavit for a search warrant authorizing search of the Looman residence. The trial court refused to rule on the merits of the motion or the sufficiency of the allegations of the motion. It denied the motion on the ground that the defendant lacked any standing to challenge the validity of the search, because, in his testimony at the first trial, defendant had denied any interest in the premises where the heroin was discovered. Both in the trial court and again on the appeal, the defendant claimed that he had "automatic standing" to challenge the legality of the search under Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), on the basis that the evidence seized in the search when the defendant was present on the premises was the basis for the criminal charge of possession of heroin.

Jones involved a factual situation similar to the case at bar. The petitioner was arrested in an apartment belonging to a friend when the police entered with a search warrant and found drugs and paraphernalia in the apartment. Before trial, the petitioner moved to suppress the evidence, contending that it had been illegally seized. The evidence showed that Jones had a key to his friend's apartment, that he could come and go as he pleased, that he kept some clothing there, and that he had spent the night there before. The motion was denied on the ground that Jones lacked a possessory interest in the apartment and, therefore, lacked standing to challenge the validity of the search. The Supreme Court in Jones acknowledged that a criminal defendant in such a situation faced a dilemma:

"Since narcotics charges like those in the present indictment may be established through proof solely of possession of narcotics, a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed sufficient, to convict him." 362 U.S. at 261-62, 80 S.Ct. at 731-732.

The court in Jones held that under the circumstances the defendant had "automatic standing" to challenge the validity of the search.

The "automatic standing" rule established in Jones has been rejected in later decisions of the United States Supreme Court. In Rakas, et al. v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), rehearing denied 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979), the court found the standing conferred in Jones because the defendant was "legitimately on the premises" to be too broad. The court stated that the "capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." p. 143, 99 S.Ct. p. 430. (Emphasis supplied.)

In United States v. Salvucci, --- U.S. ----, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), the court specifically rejected the "automatic standing" rule of Jones. As noted above, the rule of Jones conferred "automatic standing" when the element of possession was also an element of the criminal charge. The court in Salvucci approved Rakas, stating that an illegal search can only violate the rights of those who have a "legitimate expectation of privacy in the invaded place." The basic test to determine whether or not a person present on the premises at the time of a search has standing to challenge the validity of the search is not whether that person "had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched." --- U.S. p. ----, 100 S.Ct. p. 2553, 65 L.Ed.2d p. 629.

This court has also recognized that the Fourth Amendment right to protection from unreasonable searches is based upon the individual's right of privacy (State v. Chiles, 226 Kan. 140, 146, 595 P.2d 1130 (1979)), and that one does not having standing to challenge a search where there is no expectation of freedom from intrusion (State v. Gordon, 221 Kan. 253, 258, 559 P.2d 312 (1977)).

In the case now before us, testimony at the first...