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State v. Mell

April 18, 2008

STATE OF KANSAS, APPELLANT,
v.
GEORGE T. MELL, APPELLEE.
STATE OF KANSAS
v.
NANCY M. MELL, APPELLEE.



Appeal from Franklin District Court; THOMAS H. SACHSE, judge.

SYLLABUS BY THE COURT

1. When the State alleges an area is not within the curtilage, it has the burden of proving that point. The question of curtilage is a mixed question of fact and law. An appellate court reviews a trial court's factual findings for substantial competent evidence and reviews de novo its legal conclusion whether a particular seizure occurred within the curtilage.

2. When determining whether a particular area is deemed within the curtilage of a home, courts look to four factors: (1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by.

3. When analyzing a trial court's suppression of evidence, an appellate court reviews the factual underpinnings of a trial court's decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review.

4. Warrantless searches are per se unreasonable under the Fourth Amendment to the United States Constitution, subject to a few specifically established exceptions. One such exception is where there is probable cause for the search and exigent circumstances justify an immediate search. Probable cause alone is insufficient to justify a warrantless entry into a private residence; it is also necessary for the officer to show exigent circumstances which make an immediate warrantless search imperative. The burden of proving the lawfulness of a search is on the State.

5. Courts often use a nonexclusive list of factors to determine whether exigent circumstances exist to make a warrantless search: (1) the gravity or violent nature of the offense to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause; (4) strong reasons to believe the suspect is in the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended; (6) the peaceful circumstances of the entry; and (7) the possible loss or destruction of evidence. Exigent circumstances exist when an officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband. Exigent circumstances do not include situations where only a mere possibility exists that evidence could be destroyed or concealed. Whether exigent circumstances exist to justify the warrantless search of a home is dependent upon the particular facts and circumstances of the situation.

6. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit being considered, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

The opinion of the court was delivered by: Green, J.

Affirmed in part, reversed in part, and remanded with directions.

Before GREEN, P.J., GREENE and LEBEN, JJ.

In a prosecution for cultivation of marijuana, possession of methamphetamine, possession of marijuana, no drug tax stamp, and possession of drug paraphernalia, the State appeals from a pretrial order suppressing evidence obtained in a search of the residence of Nancy M. Mell and George T. Mell. On appeal, the State contends that the trial court erred in determining that the area in the yard where marijuana plants were growing was within the curtilage of the residence. We agree and reverse. Next, the State contends that the trial court improperly determined that a police officer's warrantless entry into the Mells' residence was not justified by exigent circumstances. We disagree and affirm. Finally, the State asserts that the affidavit for the search warrant furnished the magistrate with sufficient facts from which the magistrate could conclude that probable cause existed to believe the Mells' residence had some nexus with the growing of marijuana plants. We disagree and affirm. Accordingly, we affirm in part, reverse in part, and remand for trial without the evidence seized in the search of the Mells' residence.

On June 14, 2006, Officer Richard Howard went to the Mells' residence to serve a warrant for a probation violation on their daughter, Kayla Mell. Several cars were parked at the residence. Howard was met at the front door by Nancy, who stepped out onto the front porch. Howard did not enter the house. Howard told Nancy that he was looking for Kayla. Nancy told Howard that Kayla was not home. Although Howard attempted to leave, Nancy continued to engage Howard in conversation about Kayla as he walked to the sidewalk where his patrol car was parked.

As Howard stood on the sidewalk between the Mells' house and the neighboring house, he looked towards the backyard for no particular reason. Nancy, who was still standing on the porch and unable to view the backyard from her vantage point, noticed Howard looking in that direction. Nancy pointed towards the backyard and asked, "'Are those what I think they are?'" Howard responded, "'What's that?'" Nancy answered, "'The weeds back there.'" Howard responded, "'What weeds?'" Nancy replied, "'The ones by the fence. . . . Are they what I think they are?'" Howard could see weeds by the fence but could not identify them from his location. Howard had not noticed the plants before this inquiry by Nancy. Howard responded, "'I don't know,'" and, without Nancy asking him to do so, walked towards the backyard to see what Nancy was talking about.

When Howard arrived at the area in question, he noticed what appeared to be eight or nine marijuana plants located in the side yard. Before reaching the area where the plants were located, Howard could only identify the plants as "weeds." He did not identify them as marijuana until he walked into the side yard and viewed the plants up close. The record does not reflect the distance between the sidewalk where Howard was initially located and the plants.

The plants were mixed in with other weeds, and there was straw placed around them. Although Howard testified that there was no straw in the backyard except in this particular spot, he later admitted that straw was in the front yard by the sidewalk and porch where the Mells were trying to grow grass. Photos of the scene showed that a large portion of the front and side yard was covered with straw. Although the rest of the Mells' backyard was fenced in, the area where the plants were located was outside this fence and was not gated or fenced in. Howard did not enter the fenced area, as the plants were located in front of the fence. No warning signs were present. No objects were located between the view of the area from the front yard and the plants themselves. The area was located not far from the back door of the Mells' house, on the Mells' side of the yard between their adjoining neighbor's house.

After observing what he believed to be marijuana plants, Howard told Nancy that he was going to have the drug unit come out to look at the plants. Nancy explained that her husband was going to mow them down when he got off work and asked Howard to pull them up.

Detective Aaron Procaccini, a member of the drug unit, later arrived on the scene to look at the plants. Procaccini first talked to Howard and then walked back to the area where the plants were located. Procaccini observed 11 plants he believed to be marijuana. The record fails to state when Procaccini first observed and identified the plants as marijuana. Nancy explained that her husband had recently planted grass in that area of the yard and speculated that marijuana seeds may have been in the grass seed. Procaccini also noticed straw on the ground around the plants.

Based on this observation, Procaccini decided to apply for a search warrant for the Mells' residence. Procaccini felt there may have been chemicals to grow marijuana or marijuana itself inside the house. Nancy refused to allow Procaccini to enter the residence. Procaccini was aware that Nancy, George, and Kayla lived at the residence but was unsure if any other people were inside the house. Procaccini believed that any evidence inside the residence could be destroyed if someone was inside and the residence was not secured. Although Nancy indicated to Procaccini that no one else was inside the house, Procaccini proceeded to enter the residence.

Upon entering the home, Procaccini immediately detected the odor of burning marijuana. Procaccini also discovered several items of drug paraphernalia in plain view. Nevertheless, Procaccini testified that his purpose for entering the home was to look for people, not items. No persons were discovered within the residence. Procaccini, however, obtained a search warrant based on the previously mentioned facts.

As a result of a search of the home under the search warrant, drugs and drug paraphernalia were obtained from the Mells' residence. In addition, the marijuana plants discovered in the yard were seized. George and Nancy were ultimately charged with cultivation of marijuana, possession of methamphetamine, possession of marijuana, no drug tax stamp, and possession of drug paraphernalia. The Mells moved to suppress the evidence obtained as a result of the search. They argued that no probable cause existed for issuance of the search warrant, that no exigent circumstances existed to permit the initial search without a warrant, and that the officers unlawfully intruded upon the Mells' reasonable expectation of privacy by entering the curtilage of their home without permission to view the plants.

The trial court granted the motion to suppress. First, the court determined that, contrary to the assertion of Procaccini in his affidavit, Howard did not identify the plants as marijuana but only as weeds when he first observed them from the sidewalk. Furthermore, the court held that the plants were located within the curtilage of the home and that Howard exceeded the scope of a lawful intrusion by entering this area to observe them without permission. Moreover, the court determined that Howard did not identify the plants as marijuana until after this unlawful intrusion. As a result, the trial court excised paragraph 2 of the affidavit, which discussed Howard locating marijuana plants in the Mells' yard.

The trial court next held that there were no exigent circumstances to support the initial warrantless search of the home. For this reason, the court excised paragraph 5 of the affidavit, which discussed the evidence discovered as a result of this search.

After excising paragraphs 2 and 5 of the affidavit, the trial court held that the magistrate would not have had a substantial basis for determining that probable cause existed to support the issuance of a search warrant. For this reason, the court granted the motion to suppress all items discovered as a result of the search made without a warrant and obtained from the search made with a warrant.

I. Did the Trial Court Err in Finding the Area at Issue Was Within the Curtilage of the Home?

In granting the motion to suppress, the trial court found that the area of the Mells' yard where the marijuana plants were located was within the curtilage of the home. On appeal, the State argues this area was not within the curtilage. As a result, the State maintains that the officer was in a lawful position to view the plants and the trial court incorrectly excised paragraph 2 of the affidavit. When the State alleges an area is not within the curtilage, it has the burden of proving that point. State v. Fisher, 283 Kan. 272, 284, 154 P.3d 455 (2007). The question of curtilage is a mixed question of fact and law. We review a trial court's factual findings for substantial competent evidence and review de novo its legal conclusion whether a particular seizure occurred within the curtilage. 283 Kan. at 286.

When determining whether a particular area is deemed within the curtilage of a home, courts look to four factors: (1) the proximity of the area to the home, (2) whether the area is included within an enclosure surrounding the home, (3) the nature of the uses to which the area is put, and (4) the steps taken by the resident to protect the area from observation by people passing by. 283 Kan. at 286 (citing United States v. Dunn, 480 U.S. 294, 301, 94 L.Ed. 2d 326, 107 S.Ct. 1134, reh. denied 481 U.S. 1024 [1987]). These factors are not to be mechanically applied, but are useful analytical tools to the degree that they bear upon the centrally relevant consideration: whether the area is so intimately tied to the home itself that it should be placed under the umbrella of the Fourth Amendment to the United States Constitution protection. 480 U.S. at 301. The extent of the curtilage is determined by factors that bear upon whether an individual may reasonably expect that the area in question be treated as the home itself. 480 U.S. at 300.

Turning to the first factor, we note that the State concedes that the proximity of the area in question to the Mells' home supports a finding of curtilage. There is no fixed distance at which curtilage ends. See Fisher, 283 Kan. at 287-88 (finding object located approximately 50 yards from the residence is within the curtilage of the home). Indeed, a photo of the scene demonstrated that the area in question was located not far from the back door of the Mells' residence. Thus, the first factor--the proximity of the area in question to the Mells' home--favors the Mells.

As to the second factor, the State argues that the area in question is not within an enclosure surrounding the home and is therefore outside the curtilage. The State points out that the area is observable from the public sidewalk, no objects exist between the area and the public sidewalk, no fences or warning signs are placed around the area, and the area is outside the enclosed fence. On the other hand, the trial court held that under Fisher, another house, such as the neighboring house in this case, can create an enclosure. The State argues the trial court's reasoning that the neighboring house creates an enclosure renders this factor useless in an urban setting.

It must first be mentioned that some courts do consider whether the area is in a rural or urban setting when analyzing this factor. See United States v. Acosta, 965 F.2d 1248, 1256 (3d Cir. 1992) (noting that although the Dunn factors apply to extent-of-curtilage questions in urban areas, certain factors may be less determinative in a city setting because of the physical differences in the properties, citing Horton v. United States, 541 A.2d 604 [D.C. 1988] [determination will necessarily center on use made of area since fencing will be less significant than in rural area and it may be impossible to shield the area from observation]).

In Fisher, the court held that an enclosure was created when the area in question was part of the yard, which was surrounded by a highway and a barbed wire fence, citing a Sixth Circuit Court of Appeals case that found significant the fact that the house and yard were within the same fenced area. 283 Kan. at 289; see United States v. Jenkins, 124 F.3d 768, 773 (6th Cir. 1997). Fisher does not state that a neighboring house creates an enclosure, as the trial court in the present case suggests, but instead focuses on whether a fence is present and where it is located. 283 Kan. at 289; see also State v. Tinsley, 16 Kan. App. 2d 287, 292, 823 P.2d 205 (1991) (commenting on lack of fence or other enclosure surrounding the home when holding area outside curtilage); State v. Waldschmidt, 12 Kan. App. 2d 284, 290-91, 740 P.2d 617, rev. denied 242 Kan. 905 (1987) (emphasizing yard was enclosed by fence when holding area within the curtilage).

Here, the area in question was not enclosed by a fence and was outside the area of the yard that was enclosed by a fence. See Dunn, 480 U.S. at 302 (finding significant that respondent's barn did not lie within the area surrounding the house that was enclosed by a fence). Furthermore, photos of the scene showed that the area was overgrown with plants and other weeds and had not been mowed regularly or well-maintained. See Fisher, 283 Kan. at 289 (emphasizing that the area within the fence was mowed and maintained by the owner). The area and plants could be observed by persons standing on the public sidewalk; yet, the area was partially enclosed by the Mells' house, the neighboring house, and the fence. Moreover, no sidewalk led to the open side of the area. Cf. United States v. Cousins, 455 F.3d 1116, 1122 (10th Cir. 2006), cert. denied 166 L.Ed. 2d 115 (2006) (holding the wall of the house, a gate door, and a fence suffice to create a partial enclosure, but sidewalk on unenclosed area weighs against finding of curtilage). Nevertheless, the open view of the plants and the lack of their enclosure within the existing fenced area weighs against the plants being included within the enclosure that surrounds the house. As a result, the second factor--whether the area is within an enclosure--weighs in favor of finding that the officers were not within the curtilage of the Mells' home.

Third, the State argues that the area cannot be considered curtilage because the nature of its use is not one associated with an intimate activity of the home, such as gardening, but is merely part of the lawn. In contrast, the trial court found that the area in question was part of the lawn or, alternatively, part of the garden.

The court in Fisher emphasized the use of the area in question for gardening purposes in holding the area was within the curtilage. 283 Kan. at 289. Contrary to the trial court's finding in the present case, there was no evidence in the record that the area in question was used for gardening purposes. The record did, however, show that straw was placed around the plants and over a great portion of the yard, indicating the Mells were trying to grow grass for the lawn. This suggests that the area was being used for purposes associated with an activity of the home: namely, growing and keeping a lawn. On the other hand, the Mells did not point to a particular use or activity attributed to the area in question, and photos of the area indicated that the plants were overgrown among weeds. See Tinsley, 16 Kan. App. 2d at 292 (holding area not within curtilage when defendant failed to show he was utilizing the area in question); Cousins, 455 F.3d at 1122-23 (holding that planting a few melons does not add significantly to a finding of curtilage when other factors outweigh this conclusion).

The State cites Cousins, arguing that the presence of a central air conditioning unit within the area in question negates any claim the yard was being used for private purposes. Nevertheless, Cousins did not deal with an air conditioning unit but with an electric meter located in a sidewalked area where utility employees frequented. See 455 F.3d at 1123. Although an air conditioner unit existed within the area in question in the present case, there was no evidence that persons would frequent the area due to its presence and there was no sidewalk leading to the unit.

In sum, the third factor--uses to which the area is put--weakly favors the Mells. The straw around the plants, indicating lawn activity was taking place in the area, and the lack of sidewalk weighs in favor of finding curtilage. In contrast, the overgrowth and lack of evidence of gardening or any other specific use of the area weighs against this conclusion.

Fourth, the State contends that the Mells took no affirmative steps to protect the area from observation by persons passing by. The State points out that the area was not visually blocked from the sidewalk, that there was no fence or enclosure, that the area was observable by the neighbors, that the purpose of the straw was not concealment but to aid in grass growth, and that it was Nancy who pointed out the area to Howard. The trial court, however, held that the interspersing of the plants with grass and the placement of straw throughout the lawn constituted steps taken to protect the area from observation.

In Fisher, the court held that the area in question was within the curtilage of the home when the evidence was blocked from sight by the house and would only have been observable from certain areas. 283 Kan. at 289-90. The Fisher court noted that the presence of a "No Trespassing" sign and the remoteness of the house's location were factors to consider. In the present case, the area where the plants were located was not gated or fenced in, no warning signs were present, no objects were located between the frontal view of the area and the plants themselves, and the house was located in a residential area within approximately 20 feet of the neighbor's home. It seems unlikely that the Mells used straw to protect the plants or any other portion of their yard from observation, but likely they used it merely to aid in grass growth. In its appellate brief, the State points out that "[the straw's] purpose was to aid in the growth of a new stand of grass and not concealment. . . . The Mell[s] took no measures to hide the area where the marijuana plants were located." A photo of the area in question reveals that the straw was placed on the ground. The straw did not cover the plants. Moreover, the straw did not prevent view of the plants in any way.

Although Howard testified that he could not identify the plants as marijuana from his vantage point on the sidewalk, he stated he could see the plants. This does not foreclose the possibility that another reasonable person could have observed and identified the plants. The proper inquiry deals with whether the resident took affirmative steps to protect the object. Here, Nancy drew attention to the area when she turned to the officer and asked, "Are those what I think they are?" When the officer started to walk in the direction to where Nancy was looking, Nancy did not tell him to stop. Nancy's actions suggested that she invited an inspection of the area. Thus, the final factor, whether steps have been taken to protect the area from observation by people passing by, also weighs in favor of finding that the officers did not enter the curtilage of the Mells' home.

Given that the Mells took no affirmative steps to protect the area and to prevent entry into the area, we determine that they had no reasonable expectation of privacy regarding the spot from which the officers viewed the marijuana plants. Moreover, having located the plants from outside the curtilage of the home, the officers then were able to view the plants when they returned to a public sidewalk.

II. Did the Trial Court Err in Finding No Exigent Circumstances Justified the Warrantless Entry into the Home?

The trial court held that exigent circumstances did not exist to justify Procaccini's warrantless entry into the Mells' home. Based in part on this finding, the court granted the Mells' motion to suppress the evidence obtained as a result of the search.

"'"When analyzing a district court's suppression of evidence, an appellate court reviews the factual underpinnings of a district court's decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review."'" State v. Huff, 278 Kan. 214, 219, 92 P.3d 604 (2004) (quoting State v. Pritchett, 270 Kan. 125, 128, 11 P.3d 1125 [2000]).

Warrantless searches are per se unreasonable under the Fourth Amendment to the United States Constitution, subject to a few specifically established exceptions. State v. Platten, 225 Kan. 764, 769, 594 P.2d 201 (1979). One such exception is where there is probable cause for the search and exigent circumstances justify an immediate search. State v. Weas, 26 Kan. App. 2d 598, 600, 992 P.2d 221 (1999), rev. denied 268 Kan. 895 (2000). Probable cause alone is insufficient to justify a warrantless entry into a private residence; it is also necessary for the officer to show exigent circumstances which make an immediate warrantless search imperative. Monroe v. Darr, 221 Kan. 281, 287, 559 P.2d 322 (1977). The burden of proving the lawfulness of a search is on the State. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).

First, a real question exists whether there was probable cause in this case. Probable cause for a search requires the presence of information which would lead a reasonably prudent person to believe that a crime has been or is being committed and that evidence of the crime may be found on a particular person, in a specific place, or within a specific means of conveyance. State v. Mayberry, 248 Kan. 369, 377, 807 P.2d 86 (1991). In this case, no nexus was shown between the marijuana plants and the Mells' residence. Indeed, as we will discuss in the next issue, there was no evidence that the Mells' residence was used for criminal activity.

Turning to an examination of the exigent circumstances doctrine, we note that courts often use a nonexclusive list of factors to determine whether exigent circumstances exist to make a warrantless search: (1) the gravity or violent nature of the offense to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause; (4) strong reasons to believe the suspect is in the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended; (6) the peaceful circumstances of the entry; and (7) the possible loss or destruction of evidence. Platten, 225 Kan. at 770. Exigent circumstances exist when the officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband. State v. Houze, 23 Kan. App. 2d 336, 337, 930 P.2d 620, rev. denied 261 Kan. 1088 (1997). Exigent circumstances do not include situations where only a mere possibility exists that evidence could be destroyed or concealed. State v. Hardyway, 264 Kan. 451, 465, 958 P.2d 618 (1998). Whether exigent circumstances exist to justify the warrantless search of a home is dependent upon the particular facts and circumstances of the situation. State v. Gilbert, 24 Kan. App. 2d 159, 168, 942 P.2d 660, rev. denied 262 Kan. 965 (1997).

Platten held that exigent circumstances did not exist when officers knew the suspect was located within his home in possession of drugs and could have easily destroyed that evidence, ruling that a warrant was nevertheless necessary. 225 Kan. at 769-71. In State v. Shur, 217 Kan. 741, 745-46, 538 P.2d 689 (1975), the court held that absent a showing of circumstances indicating the likely destruction of evidence, the observation of a rolled cigarette in plain view and the detection of the odor of burning marijuana would not authorize a search of the premises without a valid warrant or consent. Furthermore, the court in Huff held that exigent circumstances did not exist when the suspected crime was nonviolent (the officer only detected the smell of marijuana) and there was no indication any of the occupants of the home were armed or likely to escape. 278 Kan. at 220-21. The officer testified he believed it was necessary to secure the residence to prevent destruction of evidence, but he lacked any objective evidence that the apartment was inhabited by anyone other than the person who answered the door. 278 Kan. at 216, 221.

In contrast, in State v. Cabral, No. 96,379, an unpublished opinion filed June 15, 2007, slip op. at 8-9, a panel of this court held that exigent circumstances did not exist under facts similar to those in Huff, even though the officer knew there were several unidentified persons present in the home and these persons were likely aware of the officer's presence. The court noted that the officer expressed no concern that the ...


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