Appeal from Harvey District Court; JOE DICKINSON, judge.
1. When reviewing a motion to suppress, an appellate court determines whether the factual underpinnings of the trial court's decision are supported by substantial competent evidence. Moreover, an appellate court does not reweigh evidence, determine witness credibility, or resolve conflicts of evidence. Nevertheless, the ultimate legal conclusion drawn from those facts is a legal question requiring an appellate court to apply a de novo standard of review. When reviewing a trial court's decision as to the suppression of evidence, an appellate court normally gives great deference to the factual findings of the trial court. The State bears the burden of proof in a suppression hearing. It must prove, by a preponderance of the evidence, the lawfulness of the search and seizure.
2. Substantial competent evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.
3. The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit unreasonable searches and seizures, and a warrantless search is per se unreasonable unless it falls within one of the recognized exceptions. Consequently, a warrantless search of a house is per se unreasonable. Moreover, absent exigency or consent, warrantless entry into the home is impermissible under the Fourth Amendment to the United States Constitution. Evidence recovered following an illegal entry of the home is inadmissible and must be suppressed. Nevertheless, an exception to the previously mentioned rule exists for a protective sweep incident to an in-home arrest when an officer has a reasonable belief, based on specific and articulable facts, that the area to be swept harbors someone posing a danger to those at the arrest scene.
4. A protective sweep is defined as a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.
5. A protective sweep is not a full search of the premises and can only last as long as necessary to dispel reasonable suspicion of danger or as long as the time to make the arrest and leave the premises.
The opinion of the court was delivered by: Green, J.
Before GREEN, P.J., ELLIOTT and MALONE, JJ.
Michael J. Lemons was charged with seven counts concerning possession and manufacture of methamphetamine after police conducted a protective sweep and a later search of his residence. Lemons moved to suppress all evidence obtained as a result of the sweep and search. The trial court granted Lemons' motion to suppress evidence. The State filed an interlocutory appeal, contending that the protective sweep was done to protect police from harm. Because the sweep was not made incident to a lawful arrest and because the evidence failed to show a likelihood of harm to police or to others, we determine that the trial court properly granted defendant's motion to suppress. Accordingly, we affirm.
Byron Tyner, a Harvey County investigator, contacted Lemons at Lemons' home in Hesston, Kansas. Tyner and two other officers wanted to discuss with Lemons accusations made against him earlier that evening concerning his involvement with methamphetamine manufacturing. The officers initially knocked on the front door of the residence. After getting no response, Tyner went to the back door because he heard a television or radio. Lemons answered the back door. The other officers joined Tyner and Lemons in the back. They asked Lemons if they could come in and talk to him. Lemons invited all the officers into his residence.
Lemons and the officers went into the back bedroom. Lemons laid on the bed and the officer stood near the doorway. The hallway outside the bedroom was obscured by a bed sheet hanging from the ceiling to the floor. Tyner asked Lemons if anyone else was in the residence. Lemons said no. Tyner asked Lemons a second time; Lemons again said no. Tyner told Lemons that he was going to check regardless. At this time, Lemons had not given the officers permission to search the residence.
Tyner did not find any people or animals during the sweep. Nevertheless, he noticed remnants of a lithium battery in plain view on the kitchen counter. This caught his attention because a battery lithium strip is used in the production of methamphetamine. Tyner did not seize the evidence. When he returned to the bedroom, Tyner arrested Lemons based on the battery remnants and information gained earlier that evening. Tyner told Lemons that he was under arrest but did not read Lemons his Miranda rights.
As the officers and Lemons started to leave the residence, Lemons told the officers that they could search the residence. The officers told Lemons that they would not search the residence without his presence. The officers then searched the residence with Lemons' permission and in his presence. They found numerous items used to manufacture methamphetamine. Additionally, Tyner noticed the very strong odor of anhydrous ammonia in the refrigerator and freezer. The officers and Lemons left the ...