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Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge.
BY THE COURT
1. A warrantless entry is per se unreasonable unless it falls within a recognized exception to the warrant requirement of the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights.
2. The burden is on the State to show the lawfulness of a warrantless entry.
3. Probable cause with exigent circumstances is a recognized exception to the warrant requirement of the Fourth Amendment to the United States Constitution to justify an immediate warrantless entry.
4. Exigent circumstances allow an officer to enter a defendant's house without permission or a warrant to prevent the loss, destruction, or concealment of evidence when the initial contact was made outside and the defendant was retreating into the house.
5. Exigent circumstances allow an officer in hot pursuit to follow a defendant into a house without consent or a warrant to preserve the loss, destruction, or concealment of evidence.
Courtney T. Henderson, of Billam & Henderson, LLC, of Olathe, for appellant.
Steven J. Obermeier, assistant district attorney, Betsey L. Lasister, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P. J., PIERRON, J., and BUKATY, S.J.
Gregory Vincent Keenan appeals the denial of his motion to suppress the evidence obtained when officers entered his house without a search warrant. We conclude the officers had probable cause plus exigent circumstances while investigating the possible violation of a protection from abuse order (PFA) and the crime of driving under the influence of alcohol (DUI) to enter Keenan's house after the investigation had been initiated on the driveway of the house. Finding no error, we affirm.
December 23, 2010
Around 11 p.m. on December 23, 2010, Keenan arrived at Julie Hynes' house in Parkville, Missouri, to pick up his son. Hynes, the child's grandmother, testified Keenan was " stumbling around, talking a little bizarre," swaying, and smelled of alcohol.
Keenan then picked up his sleeping child and took him outside into the sleeting weather. Hynes thought Keenan might be taking the child to the boy's mother's house two blocks away; however, Keenan told Hynes as he was leaving he was taking the child to his house in Lenexa, Kansas. Hynes was concerned and called the police to report a possible DUI.
Officer Betsy Madl of the Lenexa Police Department was dispatched to Keenan's house. Madl was informed a person might be operating a vehicle with a child inside while intoxicated. Madl was also told by dispatch a protection from abuse order (PFA) may have been violated. It was later determined at the police station the PFA had been dismissed.
Madl was at Keenan's house when Keenan pulled into his driveway. Madl testified, upon her contact with Keenan, she " immediately noticed a strong odor of a consumed alcoholic beverage emitting from his person or vehicle . . . and while carrying [his son] into the house, he stumbled several times." However, on cross-examination, Madl admitted she observed no traffic infractions or errors in driving in the very short time she observed Keenan driving down the street and into his driveway.
At the time Madl made contact, Keenan was talking on his cellphone. Keenan asked if he could go inside and lay his son down, and Madl consented but remained in constant contact with Keenan. As Keenan walked to the house, Madl observed him have a hard time walking in a straight line or staying steady while carrying his son. Just prior to Keenan entering his house, Officer Jason Hinkle of the Lenexa Police Department arrived to assist Madl. The officers asked if they could enter the house. Keenan refused.
Despite Keenan's refusal, the officers immediately followed him into the house. Madl testified a concern regarding the safety of the child and the possibility the evidence of DUI could be lost, destroyed, concealed, or tampered with once Keenan went inside the house. Hinkle corroborated this concern, testifying Keenan could have simply started drinking again, thereby impairing the case they were investigating. Additionally, Hinkle testified tat upon arriving at Keenan's house, he believed there was a violation of a PFA and, therefore, probable cause to arrest for the violation.
Keenan claimed he had nothing to drink. Madl testified Keenan had bloodshot eyes, slurred speech, and Keenan's statements were repetitive and not making much sense. Madl concluded, based on Keenan's difficulty in walking and communicating, he was highly intoxicated and would have been unable to safely operate a vehicle. Hinkle testified Keenan had stumbled several times, his eyes were bloodshot, his speech was slurred, and there was " an overwhelming odor of alcohol." On cross-examination, Hinkle admitted Keenan told him he had bad knees. However, Hinkle concluded Keenan was " significantly
intoxicated and in no way capable of safely operating a motor vehicle."
Keenan refused to perform field sobriety tests, so Hinkle placed him under arrest. Hinkle offered Keenan the opportunity to make arrangements for his son. Keenan proceeded to plug in his cell phone and head toward the kitchen, where a 12-inch butcher's knife sat on the counter. Hinkle told Keenan to stay out of the kitchen, to which Keenan replied the officers were paranoid. Keenan continued to walk toward the knife, at which point Hinkle grabbed him by the collar to physically stop him. Hinkle testified Keenan then stated, " 'I'm fucking Jersey, baby. I've taken care of more cops than you'll know." Keenan was placed in handcuffs and transported to the police station, where he refused to submit to a breath test.
After Keenan's arrest, Hinkle searched Keenan's truck. Search of the truck revealed a half-empty bottle of whiskey, two full bottles of beer, and packaging from the alcohol. The whiskey bottle was in the front passenger seat, along with a bottle cap. The other alcohol and packaging were in the front passenger floorboard. Hinkle testified the whiskey was within easy reach of the driver of the truck.
Keenan was charged with felony DUI, third offense, refusing a preliminary breath test, and transporting an open container in violation of K.S.A. 2010 Supp. 8-1567, K.S.A. 2010 Supp. ...