Appeal from Geary County District Court; STEVEN L. HORNBAKER, judge.
1. Under the Fourth Amendment to the United States Constitution, the warrantless search of a home is unreasonable and thus prohibited unless it falls within one of several limited and well-defined exceptions to the warrant requirement.
2. The warrant requirement's exception that allows for protective sweeps to ensure officer safety is only applicable when an arrest has occurred.
3. The warrant requirement's emergency-aid exception allows entry to a home or an area within a home if two requirements are met. First, the police must have reasonable grounds to believe that an emergency is at hand and that their assistance is needed immediately for the protection of life or property. Second, there must be a reasonable basis, essentially probable cause, to associate the emergency with the area or place to be searched.
4. When officers have subdued a person in his own home for his own protection, the officers are not authorized to search the entire residence under the emergency-aid exception unless specific information exists to support entry into other areas of the home, such as an immediate threat to the subdued person from elsewhere in the residence or another person who may be injured or in need of immediate assistance elsewhere in the residence.
The opinion of the court was delivered by: Leben, J.
Reversed and remanded with directions.
Before CAPLINGER, P.J., ELLIOTT and LEBEN, JJ.
On New Year's Eve in 2005, Junction City police officers were dispatched to Phillip Jeffery's apartment. The officers had been told that the resident there had cut his wrists and attempted to hang himself in a tree. When officers knocked on the door, Jeffery initially wouldn't open it, which left officers rightly concerned about his welfare if they did nothing to help him. Jeffery did open the door with the security chain attached at least once while the officers continued to knock and spoke with a neighbor. When Jeffery finally opened the door without the security chain attached, officers rushed him, ordered him to lie on the floor, and handcuffed him.
This is the point at which the plot thickens for the purposes of this appeal. Officers then searched the full apartment in walk-through fashion; they said that they were looking either for any person who might be injured or any weapons that Jeffery might use to hurt himself or others. But they had already taken Jeffery into their custody, and an officer testified at trial that they planned to take Jeffery from his home for a mental-health evaluation. The officers had no information suggesting that anyone else was in the home, and there was no immediate danger that the handcuffed Jeffery would use anything found elsewhere in the apartment to hurt himself. The Fourth Amendment to the United States Constitution protects us from a warrantless search of our home except in limited circumstances. As we will soon discuss, none of the exceptions are applicable here because there was no reason to go elsewhere in the apartment to address the situation that the officers confronted. We thus conclude that the marijuana and drug paraphernalia found during the search of Jeffery's apartment cannot be used against him; the convictions obtained based on that evidence must be set aside.
We begin our discussion with the Fourth Amendment, which prohibits unreasonable searches of a home:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Case law interpreting the Fourth Amendment tells us that a search without a warrant is unreasonable unless it falls within one of several limited, well-defined exceptions to the warrant requirement. State v. Thompson, 284 Kan. 763, Syl. ¶ 11, 166 P.3d 1015 (2007). Section 15 of the Kansas Constitution's Bill of Rights provides the same protection. Thompson, 284 Kan. 763, Syl. ¶ 15. If officers are in a place they have a right to be within the home, they may seize any evidence in plain view. State v. Horn, 278 Kan. 24, 36-37, 91 P.3d 517 (2004). But if officers obtain evidence through an unconstitutional entry into the home, then the evidence may not be used in court against the resident. Wong Sun v. United States, 371 U.S. 471, 484-85, 9 L.Ed. 2d 441, 83 S.Ct. 407 (1963); State v. Reno, 260 Kan. 117, 129, 918 P.2d 1235 (1996).
The exception for a search incident to an arrest does not apply here--Jeffery was not arrested before the search took place. Nor can the exception for protective sweeps to protect officer safety apply because this exception also applies only when an arrest has occurred. Maryland v. Buie, 494 U.S. 325, 108 L.Ed. 2d 276, 110 S.Ct. 1093 (1990); State v. Johnson, 253 Kan. 356, Syl. ¶ 5, 856 P.2d 134 (1993). Jeffery was not suspected of committing any crime when officers ordered him to lie on the floor and handcuffed him. He therefore was not arrested, which is the act of taking a person into custody to ...