Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge.
1. When the material facts to a trial court's decision on a motion to suppress are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review.
2. Evidence obtained unlawfully in violation of a defendant's constitutional rights is admissible under the inevitable discovery exception to the exclusionary rule where the prosecution can prove by a preponderance of the evidence that the unlawfully obtained evidence would have ultimately or inevitably been discovered by lawful means.
3. When an application and affidavit for search warrant contains information both lawfully and unlawfully obtained, the question becomes whether the lawfully obtained information by itself supports probable cause that would have justified issuance of the search warrant by the magistrate.
4. When a defendant has failed to challenge a particular search by law enforcement at the trial court level, a question concerning the legality of such search is not properly before the appellate court.
5. The most favored of the tips are those which are in fact not really anonymous at all. These tips occur when the person giving the tip gives the police his or her name and address or identifies himself or herself in such a way that he or she can be held accountable for the tip.
6. Under the facts of this case, the facts contained in the affidavit for a search warrant, after excising the information obtained through unlawful means, supports probable cause to justify the issuance of a search warrant for the defendant's residence. Because the evidence seized in this case would have been ultimately discovered in a lawful entry, the defendant's motion to suppress was properly denied.
7. An issue concerning whether the trial court complied with the requirements of K.S.A. 2006 Supp. 22-4513 in ordering a defendant to reimburse attorney fees to the Board of Indigents' Defense Services is rendered moot by the defendant's full payment of the assessed fees.
The opinion of the court was delivered by: Green, J.
Affirmed in part and remanded with directions.
Before MALONE, P.J., GREEN and MARQUARDT, JJ.
Michael Geraghty was charged with possession of methamphetamine and felony possession of drug paraphernalia after police entered Geraghty's residence with his daughter in order to investigate a potential methamphetamine lab and later obtained and executed a search warrant on the residence. Geraghty moved to suppress the evidence seized from his residence as a result of the search warrant, arguing that the search warrant was based solely on information gained by the unlawful police entry into his residence. The trial court denied Geraghty's motion to suppress on the following grounds: (1) that the police had consent from Geraghty's daughter to initially enter Geraghty's residence, and (2) that exigent circumstances warranted the search. Geraghty's case proceeded to a jury trial, and he was convicted of both charges.
On appeal, Geraghty challenges the trial court's denial of his motion to suppress, arguing that neither consent, the emergency doctrine, nor exigent circumstances justified police entry into his residence. It appears that Geraghty is correct. Nevertheless, the trial court's decision can be upheld for a different reason. Even if the information obtained during the unlawful police entry into Geraghty's residence is excised from the affidavit for the search warrant, the facts contained in the affidavit establish probable cause for the issuance of a search warrant for Geraghty's residence. As a result, the trial court did not err in denying Geraghty's motion to suppress. Accordingly, we affirm the trial court's denial of the motion to suppress.
Finally, Geraghty contends that the trial court erred in ordering him to reimburse the Board of Indigents' Defense Services (BIDS) for attorney fees without considering his financial circumstances. We agree. Nevertheless, it is unclear from the record whether Geraghty has already reimbursed BIDS for attorney fees and, consequently, has rendered this issue moot. As a result, we remand to the trial court to clarify whether Geraghty has paid BIDS attorney fees. If Geraghty has paid such fees, the trial court is directed to dismiss this matter as moot. On the other hand, if Geraghty has not fully paid this amount, the trial court is directed to resentence Geraghty in compliance with K.S.A. 2006 Supp. 22-4513 regarding the assessment of BIDS attorney fees. Accordingly, we remand with directions on this issue.
On August 14, 2004, police received a call from Geraghty's landlord that a man was seen carrying a shotgun and a rifle into Geraghty's apartment. Officers arrived at Geraghty's apartment around noon and discovered the door wide open and smelled a strong odor of burnt marijuana. The officers announced themselves and asked if anyone was in the apartment. Geraghty answered the officers and came out of the back bedroom. One of the officers asked Geraghty about the marijuana smell, but Geraghty indicated that he did not know from where the smell was coming. One of the officers went to the back bedroom where he found a bag of marijuana. Geraghty was placed under arrest for possession of marijuana and taken to jail.
Later that afternoon, Layla Bryan, Geraghty's daughter, received a message from Geraghty's landlord that she needed to remove guns from Geraghty's apartment. Chris Bryan, Layla's husband, went with her to Geraghty's apartment. Because Layla did not have a key to Geraghty's apartment, an employee of the apartment complex had to let her inside the apartment. In the bedroom of Geraghty's apartment, Chris discovered a small glass vial that contained a small rock. In a closet in the apartment, Layla found a red cooler and a purple gym bag. Layla discovered two large red jars containing a liquid substance in a trash bag inside the cooler. Layla also discovered a glass flask inside the gym bag.
After finding these items, Layla called the police. Officer Matthew Gural arrived at Geraghty's residence around 6:45 p.m. and met Layla and Chris. Layla told Gural that she thought she had discovered a methamphetamine lab inside of Geraghty's apartment. Gural asked Layla to go with him inside the apartment to show him what she had discovered. Layla showed Gural the cooler and gym bag in the front room of the apartment. Inside the cooler, Gural saw multiple glass jars wrapped tightly in plastic wrap and containing a yellowish, milky-colored liquid. Gural removed one of the jars from the cooler to look at it closer. Inside the gym bag, Gural saw a glass container wrapped tightly in plastic wrap and containing the same type of liquid as the jars in the cooler. A coffee filter was stuffed into the glass container. In addition, Gural smelled ammonia and saw camping fuel and a plastic bag containing a scale near the gym bag and cooler.
After looking at these items, Gural left the apartment with Layla and Chris. Upon leaving the apartment, Layla and Chris explained that they had discovered a small glass vial containing a small yellowish-brown rock that appeared to be a narcotic on the headboard of Geraghty's bed. Gural contacted his supervisor about his observations, and a search warrant for Geraghty's apartment was prepared. The search warrant was executed that night, and various items relating to the manufacture of methamphetamine were seized from Geraghty's apartment.
Geraghty was charged with possession of methamphetamine in violation of K.S.A. 65-4107(d)(3) and K.S.A. 65-4160(a) and felony possession of drug paraphernalia in violation of K.S.A. 65-4152(a)(3). Before trial, Geraghty moved to suppress the evidence obtained during the search of his residence. Geraghty argued that Gural's warrantless search of his residence was unlawful and that any evidence gained during this search must be suppressed. Geraghty further argued that because the search warrant was based solely on the information gained through Gural's invalid search, the evidence gained from the search warrant must be suppressed as fruit of the poisonous tree. The trial court denied Geraghty's motion to suppress, determining that both consent and exigent circumstances justified Gural's entry into the apartment. The case proceeded to a jury trial, and Geraghty was convicted of both charges. The trial court placed Geraghty on probation for 12 months with an underlying prison sentence of 24 months.
On appeal, Geraghty contends that the trial court erred in denying his motion to suppress. Because the material facts to the trial court's decision on Geraghty's motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. See State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). The State bears the burden of proof for a ...