Review of the judgment of the Court of Appeals in an unpublished opinion filed June 4, 2010. Appeal from Riley District Court; MERYL D. WILSON, judge.
SYLLABUS BY THE COURT 1. The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights prohibit a warrantless and nonconsensual entry into a home absent a recognized exception to the warrant requirement, one of which is the exigent circumstances exception. 2. An officer can rely on the exigent circumstances exception when the officer has an objectively reasonable belief that an emergency situation exists; one such situation is when an officer's safety is threatened. 3. In applying the exigent circumstances exception to the warrant requirement for a dwelling search, if an officer can articulate how the presence of a weapon affected the officer's safety, this court has interpreted the Fourth Amendment to the United States Constitution to allow a warrantless entry into a person's home based upon officer safety concerns. 4. Officers cannot rely on the exigency exception to the search warrant requirement of the Fourth Amendment to the United States Constitution when the officers' conduct preceding the exigency is unreasonable. If the police create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry is unreasonable. 5. The Fourth Amendment to the United States Constitution permits knock and talk encounters because they are voluntary consensual encounters. In conducting a knock and talk, an officer can approach a citizen's door and act as any private citizen would.
The opinion of the court was delivered by: Moritz, J.:
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded.
The opinion of the court was delivered by
We granted James Campbell's petition for review to consider whether the Court of Appeals properly affirmed the district court's denial of his motion to suppress. In his direct appeal, Campbell contended that a police officer's warrantless and forced entry into his apartment was not justified by exigent circumstances; thus, the entry and subsequent seizure of evidence in plain view violated Campbell's Fourth Amendment rights. Specifically, Campbell argued the forced entry was unjustified because (1) although the officer claimed he appropriately used force to enter the apartment because Campbell answered the door carrying a gun, Campbell was not carrying a gun and thus no exigency arose; and (2) even if he was carrying a gun, he was legally permitted to do so, and the exigency exception did not apply because the officer created the exigency by covering the peephole of the door and positioning himself to mask his presence. While the Court of Appeals found the evidence substantiated the officer's claim that Campbell carried a gun when he opened the door, threatening the officer's safety, it inexplicably found that Campbell had not argued that the officer created the exigency. Therefore, the panel refused to consider this issue and affirmed the district court's ruling that the plain view exception justified the seizure. State v. Campbell, No. 101,860, 2010 WL 2348692 (Kan. App. 2011) (unpublished opinion).
Our review of the record reveals that Campbell clearly argued to the district court and to the Court of Appeals that the police officer's actions created the "exigency," which the officer then used to justify his use of force and warrantless entry to the apartment. Further, we conclude the exigent circumstances exception does not apply in light of the officer's unreasonable actions in creating the exigency.
Because the officer's actions preceding the exigency were unreasonable and in violation of the Fourth Amendment, we reverse both the district court's decision denying Campbell's motion to suppress and the Court of Appeals' decision affirming that decision, and we remand to the district court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
The State charged Campbell with one count of possession of marijuana with intent to sell, one count of possession of cocaine, one count of misdemeanor possession of marijuana, two counts of possession of drug paraphernalia, one count of criminal possession of a firearm, and two counts of possession of a controlled substance without a tax stamp. After Campbell moved to suppress the evidence supporting those charges, the district court conducted an evidentiary hearing on the motion. We have summarized below the hearing testimony of Riley County Police Officer Thomas Nible.
Nible testified that the charges arose out of his investigation of a noise complaint regarding a car owned by Campbell. After he located the car in Campbell's apartment parking lot, he decided to speak with Campbell about the complaint. Campbell's apartment was on the third floor, with an exterior, walk-up entrance.
As the officer approached Campbell's apartment, he smelled burning or burnt marijuana and heard at least two male voices coming from an open window in the apartment. Nible wanted to investigate the marijuana smell by looking inside the apartment, but he knew he lacked authority to enter. Instead, in an effort to ensure the occupants would open the door, Nible positioned himself next to the door and covered the peephole with his left hand. Nible described his actions as follows: "I kind of bladed myself sideways with my weapon, kept my weapon away from the door, left side of my body towards the door, I stepped kind of back away from the windows, kept myself out of view, and knocked on the door."
Nible explained that by "blading" himself against the door, he assumed a protective posture, and it "turned out" that it also placed him in a position so he could use his shoulder to force the door open.
Campbell opened the door about a third of the way and looked around it. Nible could only see Campbell's head and face and a silver handgun about waist high. Nible explained that the handgun "wasn't pointed at me in the means that [Campbell was] trying to shoot me at that time and that moment." Rather, it was simply pointed in Nible's general direction. Nible stated Campbell "looked surprised" when he saw Nible and tried to shut the door.
According to Nible, he had been trained to either confront a handgun or retreat to initiate a different plan from a safer position. Nible felt he had no option to retreat toward the stairs because he would have to pass in front of the apartment's window. Concluding he was in an unsafe position regardless of whether he retreated or confronted the handgun, Nible decided to force his way into the residence. Nible's supervisor, who arrived after Nible called for backup, testified that Nible was adamant he saw a weapon. However, his supervisor noted that due to Nible's military training he "thinks things through a little bit differently and [is] maybe a little more assertive or aggressive."
Nible testified he hit the door hard and opened it with two shoves, drawing his weapon as he did so. Once inside, he saw a couch positioned to the right of the doorway and another couch in front of the door. As Nible entered the apartment, Campbell was positioned "partially over" the couch in front of the doorway. Nible surmised that Campbell's location "could be" consistent with the officer knocking Campbell over the couch when he forced open the door.
After securing Campbell, Nible secured the other two men in the room and requested the weapon. All three men denied having a weapon, and Campbell claimed to have had a bandana in his hand, not a weapon. Nible "looked around the general area" but did not see a weapon.
Nible called for backup and explained to the occupants of the apartment that he had been investigating a noise complaint. From Nible's position in the doorway, he had a clear view into the kitchen where he saw a large, glass marijuana bong and a leafy, green substance on the counter.
Once backup arrived, Nible sought Campbell's written permission to search the apartment. Campbell refused to give written permission but did give verbal consent. Nible found a handgun under a cushion in the couch "furthest away ...