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State v. Malone

Court of Appeals of Kansas

April 18, 2014

State of Kansas, Appellant,
Timothy Douglas Malone, Appellee

Page 189

[Copyrighted Material Omitted]

Page 190

Appeal from Johnson District Court; James Franklin Davis, judge.



1. When considering whether to issue a search warrant, a judge is required to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of any person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

2. When an affidavit in support of an application for search warrant is challenged, the task of the reviewing court is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. This standard is inherently deferential. It does not demand that the reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided a substantial basis for the magistrate's determination that there is a fair probability that evidence will be found in the place to be searched. Because the reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as the issuing magistrate, the reviewing court may perform its own evaluation of the affidavit's sufficiency under this deferential standard.

3. In order to obtain a warrant to search a suspect's residence, there must be some definite link between the illegal or suspicious activity described in an affidavit and the suspect's residence. That link must be sufficient to establish a fair probability that contraband or evidence of a crime will be found in the residence.

4. When law enforcement officers conduct an unreasonable search in violation of an individual's Fourth Amendment rights, a court's remedy for such an illegal search is to exclude any resulting evidence in the prosecution of that individual.

5. In Kansas, the Fourth Amendment exclusionary rule should not be applied to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid, except where: (1) the magistrate issuing the warrant was deliberately misled by false information; (2) the magistrate wholly abandoned his or her detached or neutral role; (3) there was so little indicia of probable cause contained in the affidavit that it was entirely unreasonable for the officers to believe the warrant was valid, or (4) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized.

6. Application of the good-faith exception presumes the law enforcement officer involved in a particular case has a reasonable knowledge of what the law prohibits.

Shawn E. Minihan and Steven Obermeier, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

Paul D. Cramm, of Overland Park, for appellee.

Before Leben, P.J., Green and Hill, JJ.


Page 191

[50 Kan.App.2d 168] Hill, J.:

This is an interlocutory appeal of a district court ruling suppressing contraband found in a trash bag left in front of a house. The district court held that since there was no evidence connecting the contraband with the house where the defendant was living, there was no probable cause to issue a search warrant, and the court thus suppressed the evidence. Because we agree that there was no probable cause for issuing this search warrant, we hold the court's ruling on that point is correct. In its second attack on the court's ruling, the State contends the good-faith exception to the exclusionary rule compels the admission of this evidence. Because the affidavit in this case was so bare-bones, it lacked any indicia of probable cause, and any official belief that probable cause to search existed was unreasonable. We hold the trial court was correct when it refused to apply the good-faith exception.

[50 Kan.App.2d 169] A purchase of fertilizer and soil conditioner started this investigation.

At a meeting hosted by the Missouri State Highway Patrol regarding possible marijuana " grow houses" in Olathe, a Missouri Sergeant, Jim Wingo, told Olathe Detective Nicholas Stein that an unidentified male had been seen purchasing perlite soil conditioner and liquid fertilizer from the Green Circle Garden Center on February 8, 2011. The man was then seen driving a car registered to Mai Lin Malone, whose address was a residence on South Troost Street in Olathe.

Detective Stein went to the Troost address on April 7, 2011, and recovered trash placed in a plastic garbage can sitting at the curb. Stein said that when he sorted through the trash, he found some plants suspected to be marijuana, a glass pipe containing suspected marijuana residue, an empty jug of General Hydroponics, and other items consistent with marijuana cultivation. Stein also found mail addressed to Melissa Sayer, at the same residence on South Troost Street. The mail was not found in the same bag as the contraband. Stein said that water billing records noted that Mai Lin Malone was the resident at the residence on South Troost Street.

Stein used this information to obtain a search warrant. The court concluded that the officer had probable cause to believe marijuana and various items related to the cultivation, use, packaging, and sale of marijuana would be found at the residence and issued a search warrant.

Stein and other officers executed the search warrant on April 8, 2011. They discovered marijuana plants, drug paraphernalia, firearms, and tattooing equipment. The State charged Malone with the crimes of cultivation of marijuana, two counts of possession of drug paraphernalia, a drug tax stamp violation, and unlicensed tattooing.

Malone moved to suppress all evidence seized during the search. He claimed Stein's affidavit failed to establish probable cause to search because the mail bearing Sayer's name--the only evidence giving an indication of the source of the trash--was not found in [50 Kan.App.2d 170] the same bag as the contraband. Malone argued that because the search warrant was unsupported by probable cause, all evidence ...

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