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STATE v. PROBST

July 13, 1990.

STATE OF KANSAS, Appellant,
v.
DIANA LEA PROBST, Appellee.



The opinion of the court was delivered by

The State of Kansas appeals from a district court order dismissing criminal charges against the defendant, Diana Lea Probst. Following a combined preliminary hearing and a hearing on a defense motion to suppress evidence seized under a search warrant, the trial court granted the motion to suppress and then dismissed the charges, as there was no other evidence that a crime had been committed. The State has appealed pursuant to K.S.A. 22-3602(b)(1). We affirm.

The State asserts two issues on appeal: (1) whether the trial court erred in finding no probable cause for the issuance of the search warrant, and (2) whether, if the affidavit filed in support of the issuance of the search warrant lacked probable cause, the search warrant nevertheless meets the good faith exception to the exclusionary rule.

  The determination of the issues before the court requires a careful review of the allegations of the affidavit for the issuance of the search warrant and the evidence presented by the State to support the validity of the warrant at the hearing on the motion to suppress. Therefore, it is necessary that the factual background be set forth in some detail.

  In the late summer and early fall of 1988, agents of various law enforcement agencies, including the Drug Enforcement Administration (DEA), the Reno County Sheriff's Office, the Kansas Bureau of Investigation, and the Hutchinson Police Department, cooperated in an undercover drug investigation in Hutchinson and Reno County. The principal target of the investigation was Warren Cross, a used car dealer in Hutchinson, who was suspected of the sale of methamphetamine. The defendant,

[247 Kan. 198]

      Diana Lea Probst, was an employee and companion of Cross. Both Cross and Probst were charged with various drug violations and their cases were consolidated in the district court. This appeal is concerned only with the charges against the defendant Probst.

  The principal officer involved in the investigation of the suspected drug activities of Cross was Special Agent Michael F. Upchurch of the DEA, who solicited the aid of an informant, Thomas R. Shanley. On August 5, 1988, Shanley was arrested by the Kansas Highway Patrol on the Kansas Turnpike. A search of Shanley's car produced over 50 grams of methamphetamine, $10,720 in cash, and two firearms. All of those items, along with the automobile, were confiscated by the federal government and federal criminal charges were filed against Shanley. While Shanley was being held in the Lyon County jail, Agent Upchurch visited him and sought his cooperation in Upchurch's investigation of illegal drug activities. Shanley, in the hope of getting cooperation from the DEA in his pending criminal proceedings, agreed to assist the DEA agents and entered into a "cooperating individual agreement" with Upchurch to provide information and services to the DEA.

  Shanley then was enlisted to assist the DEA in the investigation of Cross. Upchurch directed Shanley to make contact with Cross and he did so prior to September 7, 1988. During his initial contacts, Shanley made arrangements to purchase methamphetamine from Cross. The buy was scheduled for September 7, 1988. On that date Upchurch wired Shanley with a hidden recording device, furnished him money to make the purchase, and placed him under surveillance. Shanley met Cross at his used car lot and the two of them drove to 15 West 16th Street in Hutchinson, where Probst lived. At the time, Probst was at work. Shanley and Cross parked near the Probst residence and Cross proceeded to open the trunk of an automobile parked nearby. The evidence is conflicting whether this automobile was parked in the street or in the alley, but it is clear that it was not parked on Probst's property. The car did not belong to Probst. Cross removed a yellow metal ammunition box from the trunk of the parked car and returned with it to the other vehicle; he and Shanley then returned to the Cross used car lot.

[247 Kan. 199]

     

  Upon their return to the used car lot, Cross opened the ammunition box, removed a quantity of methamphetamine from the box and completed the sale to Shanley. Shanley met with Cross again on September 9, 1988, and rode with him to a warehouse or storage building Cross used in his automobile business. At that location Shanley observed Cross remove methamphetamine from one of the cars stored in the building.

  Nothing further appears to have transpired until May 1989 when Upchurch approached the Reno County Attorney seeking prosecution. After reviewing information furnished by Upchurch, the county attorney prepared an affidavit for three search warrants. The affidavit, signed by Upchurch on May 16, 1989, sought search warrants for the residence of Warren Cross, the storage building Cross used in his car business, and the residence of Diane Lea Probst.

  The affidavit, consisting of six legal size typewritten pages, related the experience of Agent Upchurch, his knowledge of the general conduct of drug traffickers, and the involvement of Shanley in the investigation of Cross. The facts of the September 7, 1988, buy of methamphetamine by Shanley from Cross and details about the suspected drug activity of Cross were set forth at great length. The only information in the affidavit that related to the defendant Probst was succinctly set forth by the trial judge in his memorandum opinion. The court stated:
"The facts provided by the affidavit which relate directly to this defendant are limited. Such information includes 1.) defendant was convicted for possessing methamphetamine in her residence on February 17, 1988, fifteen months prior to the issuance of this search warrant; 2.) that in February, 1988, this defendant was the girlfriend and employee of Warren Cross; 3.) that during the controlled buy on September 7, 1988, Warren Cross removed the methamphetamine from the trunk of his vehicle when it was parked on the street in front of the defendant's residence; 4.) an unsupported statement by the confidential informant that the defendant was involved in the sale and distribution of methamphetamine."
  Nevertheless, the district judge, sitting as the magistrate for purposes of the search warrants, on May 16, 1989, authorized and issued search warrants for the three requested locations, including the home of the defendant at 15 West 16th Street in Hutchinson. The search warrants were executed the same day and a quantity of methamphetamine, drug paraphernalia, and

[247 Kan. 200]

      related items were recovered from the home of the defendant. The defendant was subsequently charged with possession of illegal drugs, possession of drugs without a tax stamp, and possession of drug paraphernalia.

  Nothing was included in the affidavit about Shanley's drug activities, his arrest in Lyon County, his "cooperating individual agreement" with the DEA, the lack of any information about his reliability, or the fact he had been convicted in federal court in ...


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