Appeal from Butler District Court; DAVID A. RICKE, judge.
1. The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights generally prohibit the warrantless entry of a person's home.
2. Both the federal and state constitutions provide that the privacy interest in a person's home requires special deference and is entitled to unique sensitivity.
3. Searches conducted without a search warrant are per se unreasonable, subject to a few recognized exceptions. Kansas recognizes voluntary consent as an exception to the warrant requirement.
4. Consent to a search is voluntary if it is the product of a free and independent will.
5. The touchstone of United States Constitution Fourth Amendment jurisprudence is reasonableness.
6. In situations where only a minor crime is involved, and there is no indication of any emergencies or other considerations requiring immediate police entry, Fourth Amendment protections of homes should be strictly enforced.
7. Under the facts of this case, where there was only a minor crime involved, no indication of any need for immediate police entry, and the owner had two or three times denied permission for a warrantless entry, the consent obtained by the police through continued pressure was in violation of the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights.
8. Evidence obtained in violation of a defendant's constitutional rights may be admitted if the State can prove an alternative legal basis for the admission of the evidence.
9. The inevitable discovery doctrine is discussed and applied.
The opinion of the court was delivered by: Pierron, J.
Before MARQUARDT, P.J., PIERRON, J., and KNUDSON, S.J.
Monte J. Thompson appeals from his conviction of possession of marijuana and possession of drug paraphernalia after the district court admitted evidence he claims the police obtained based on his involuntary consent to search his home. Thompson also claims constitutional reversible error occurred when the State solicited testimony that was prohibited by a pretrial motion to suppress.
On August 28, 2004, Officer Danny Strobbe was attempting to serve a notice to appear to a person at a home in Augusta, Kansas. No one answered the door. However, Strobbe noticed Thompson stick his head out of his front door across the street. Strobbe walked across the street to ask Thompson if he knew where his neighbor was.
While crossing the street, Strobbe saw several people through Thompson's front door who were inside the living room passing around what Strobbe believed was a marijuana joint. While approaching the front door, Strobbe smelled marijuana, an odor he has had experience with as a detective. Strobbe called for backup.
Officer Chris Jones arrived and also smelled marijuana. Both officers went to the front door and Strobbe knocked. Thompson answered the door, started to step outside, and then tried to shut the wooden door behind him. Strobbe told Thompson to leave the door open, that he could smell burned marijuana, and Thompson needed to stay outside and answer his questions. Thompson confirmed that he and his friends had been smoking marijuana and that the marijuana was in the living room next to the couch. Strobbe asked Thompson for his consent to search the house. Thompson refused. Thompson said he did not understand ...