Appeal from Harvey District Court; JOE DICKINSON, judge.
SYLLABUS BY THE COURT 1. Both our federal and state constitutions provide protection against unreasonable searches and seizures. Where those constitutional constraints apply, a search conducted without a warrant is per se unreasonable, unless the State proves that the search fits within the description of an established exception to the warrant requirement. 2. The conduct of a private person acting independently and not under the authority or direction of the State is not included in the proscriptions of the Fourth Amendment to the United States Constitution or §15 of the Kansas Constitution Bill of Rights with respect to searches and seizures. 3. A determination of whether a private citizen has become an instrument or agent of the government focuses on two inquiries: (1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his or her own ends. 4. The constitutional prohibition on unreasonable searches and seizures is not limited solely to operations conducted by the police, but rather those restraints are imposed upon "government action" by both civil and criminal sovereign authority. 5. Neither the Fourth Amendment to the United States Constitution nor §15 of the Kansas Constitution Bill of Rights constrains the activities of persons acting in an essentially private capacity merely because they happen to be government employees. Rather, to be a constitutionally constrained government actor, the government employee must be performing an investigatory-type activity for the benefit of his or her employer. The restrained activity will normally be exploratory, rather than reactive, in nature. 6. Under the facts of this case, public housing employees who made uninvited entries into the defendant's apartment to investigate whether the apartment had been damaged or affected by a sewer back-up at the facility were not government actors subject to constitutional constraints on unreasonable searches and seizures.
The opinion of the court was delivered by: Johnson, J.:
Review of the judgment of the Court of Appeals in 42 Kan. App. 2d 859, 218 P.3d 441 (2009).
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
The opinion of the court was delivered by
The trial court found Christopher Brittingham guilty on two counts-possession of drugs and possession of paraphernalia-based upon stipulated facts, after the district court had denied Brittingham's attempts to suppress his statements and the drug-related evidence as being products of an unlawful search and seizure. The drugs and paraphernalia were first observed in Brittingham's apartment by a public housing employee who had made an uninvited entry into the apartment to check for potential damage from a sewer back-up at the facility. The Court of Appeals affirmed the district court's determination that the public housing employee was not a government actor subject to the constitutional restrictions on unreasonable searches and seizures in State v. Brittingham, 42 Kan. App. 2d 859, 218 P.3d 441 (2009). We granted review and affirm the result reached by the Court of Appeals.
FACTUAL AND PROCEDURAL OVERVIEW
Ron Schlesener, director of the North Newton Housing Authority (NNHA), received notice on Monday morning, February 5, 2007, that a sewer back-up had occurred over the weekend in a NNHA apartment building, where Brittingham resided in a studio apartment. Schlesener instructed Emma Hutson, a NNHA maintenance worker, to enter Brittingham's apartment to check for possible water damage from the sewer back-up. After knocking and receiving no response, Hutson entered the apartment and looked for damage in the bathroom. While in the apartment, Hutson saw two unresponsive individuals lying in bed. She also observed drugs and drug paraphernalia in plain view on the coffee table.
Hutson left the apartment without attempting to awaken the occupants. She informed Schlesener about the results of her inspection and then shared her concerns about the two apparently unconscious individuals and the "drugs and things" she had observed while in the apartment. Schlesener personally went to the apartment and attempted to arouse the two occupants. When he could not awaken them, he called 911 to report that there were two unresponsive people in an apartment.
The North Newton Chief of Police was the first to respond. After visiting with Schlesener, the Chief entered the apartment and, with some effort, was able to arouse the occupants and elicit their identities as Brittingham and Carolyn Greer. The Chief was able to observe the drugs and paraphernalia in plain view.
Brittingham quickly asserted ownership of the drugs and paraphernalia, and he consented to the further search of his apartment. Detective Nef Torres was called in to complete the search. During the search, Brittingham assisted the officers in locating other items of interest and requested help with his drug problem. The fruits of the search ultimately led to charges against Brittingham for drug possession under K.S.A. 2006 Supp. 65-4160 and for possession of drug paraphernalia under K.S.A. 2006 Supp. 65-4152(a)(2).
Before trial, Brittingham filed a motion to suppress. He argued that Hutson and all subsequent persons who entered the apartment were government actors subject to the limitations of the Fourth Amendment to the United States Constitution and §15 of the Kansas Constitution Bill of Rights. Given that no one had obtained a warrant, Brittingham contended that everything discovered after Hutson's entry was tainted and required suppression.
The district court denied the suppression motion, finding that neither Hutson nor Schlesener were government actors for the purpose of the Fourth Amendment. The district court also concluded that the Chief was legally in the apartment for an appropriate health and welfare check and that, therefore, the ...