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March 9, 1990.


This is an interlocutory appeal by the State from an order suppressing evidence seized pursuant to a search warrant. After the defendant was bound over, the trial court reversed itself by suppressing evidence seized from the defendant's residence based upon its finding that the affidavit did not provide probable cause for the issuance of the warrant and that, based upon State v. Doile, 244 Kan. 493, 769 P.2d 666 (1989), the good faith exception to the exclusionary rule was not applicable. We reverse and remand for further proceedings.

The facts, as stated by the trial court, are not in dispute:

"On September 20, 1988, Kansas Bureau of Investigation Agent James Young and Allen County Sheriff Ron Moore conducted an aerial search of

[14 Kan. App. 2d 238]

      farms in eastern Allen County in an attempt to locate growing marijuana. A growing patch of marijuana plants was located on a farm owned by Clyde Bartlett, the father of the defendant. During the afternoon of September 21 a search warrant was issued authorizing law enforcement officers to search the Clyde Bartlett farm. The warrant was executed the morning of September 22nd.

"At approximately 12:00 noon on September 22nd officers obtained a warrant for the arrest of James Bartlett and a search warrant for his residence. The complaint filed against James Bartlett charges him with the crime of possession of marijuana with intent to sell. The affidavits filed in support of the complaint and application for search warrant contain identical language:
`At 9:30 a.m. on 9-22-88 special agent James Young and Tom Williams, of the K.B.I. executed a search warrant at the Clyde Bartlett residence NW 1/4 Sec. 3, Twp. 25 S, Range 21 E. The agents found 50 plus marijuana plants growing, tied to stakes, with black water pipe leading to old well. Other items associated with the cultivation of marijuana were seen through an open 1/2 door of a milk shed near the plants. Clyde Bartlett returned to residence while warrant was being executed and the warrant was read to him. Mr. Bartlett stated he did not farm — that his son James "Tudor" Bartlett does all farming and has control of the fields and buildings. Clyde Bartlett also told the agents that Charles "Chuckie" Hurd is employed by his son to assist in farming.'
"During their search of the James Bartlett home and detached garage officers seized quantities of marijuana and cocaine, guns, and numerous other items believed by officers to be evidence of the crime charged. The home of James Bartlett is located approximately one mile from the farm owned by his father where the growing marijuana was found."
Standard of Review
  When called upon to review the magistrate's issuance of a search warrant, the duty of a reviewing court "is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." State v. Abu-Isba, 235 Kan. 851, Syl. ¶ 3, 685 P.2d 856 (1984) (following Illinois v. Gates, 462 U.S. 213, 238-39, 76 L.Ed.2d 527, 103 S.Ct. 2317 [1983]). In Illinois v. Gates, the United States Supreme Court also stated: "[A]fter-the-fact scrutiny by courts> of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's `determination of probable cause should be paid great deference by reviewing courts>.'" 462 U.S. at 236. In a subsequent case, the United States Supreme Court reversed a decision suppressing evidence, holding:

  "The Supreme Judicial Court also erred in failing to grant any deference to the decision of the Magistrate to issue a warrant. Instead of merely

[14 Kan. App. 2d 239]

      deciding whether the evidence viewed as a whole provided a `substantial basis' for the Magistrate's finding of probable cause, the court conducted a de novo probable-cause determination. We rejected just such after-the-fact, de novo scrutiny in Gates." Massachusetts v. Upton, 466 U.S. 727, 732-33, 80 L.Ed.2d 721, 104 S.Ct. 2085 (1984).

  Although Illinois v. Gates, Massachusetts v. Upton, and State v. Abu-Isba each involved review by an appellate court, the standard of review established by these cases is equally applicable when review is by a trial court. Thus, the issue in this case is not whether probable cause actually existed, but whether the issuing judge had a "substantial basis" for concluding that it did.

  Totality of the Circumstances Approach

  At the crux of the trial court's decision to suppress the evidence was the court's conclusion that the affidavit contained no evidence showing "that drug-related activities were occurring at the James Bartlett residence." While it is true that there was no direct evidence of drug-related activities at defendant's residence, such evidence is not required, under the "totality of the circumstances" approach to probable cause, if it is reasonable under all the facts and circumstances disclosed in the affidavit to believe that the articles sought are located at his residence.

  The United States Supreme Court rejected specific, elaborate tests for determining probable cause in favor of a "totality of the circumstances" approach. In Illinois v. Gates, the Court explained:
"Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a `practical, nontechnical conception.' Brinegar v. United States, 338 U.S. 160, 176 (1949). `In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Id., at 175. Our observation in United States v. Cortez, 449 U.S. 411, 418 (1981), regarding `particularized suspicion,' is also applicable to the probable-cause standard:
  `The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'

[14 Kan. App. 2d ...

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