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Review of the judgment of the Court of Appeals in an unpublished opinion filed April 26, 2013. Appeal from Lyon District Court; JEFFRY J. LARSON, judge.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed.
BY THE COURT
1. The factual underpinnings regarding a motion to suppress are reviewed for substantial competent evidence, but the legal conclusion drawn from those facts is reviewed de novo. When the State alleges an area is not within the curtilage, it has the burden of proving that point.
2. The question of curtilage is a mixed question of fact and law. This court reviews the district court's factual findings for substantial competent evidence and reviews de novo the district court's legal conclusion whether a particular seizure occurred within the curtilage.
3. Substantial competent evidence is legal and relevant evidence a reasonable person could accept to support a conclusion. This court normally gives great deference to the factual findings of the district court. The appellate court does not reweigh evidence, assess the credibility of witnesses, or resolve conflicts in evidence.
4. After Florida v. Jardines, 569 U.S. 133 S.Ct. 1409, 1417, 185 L.Ed.2d 495 (2013), a search occurs under the Fourth Amendment to the United States Constitution when: (1) the government obtains information by physically intruding on a constitutionally protected area, i.e., persons, houses, papers, or effects; or (2) invades a subjective expectation of privacy that society recognizes as reasonable.
5. When it comes to the Fourth Amendment, the home is first among equals. It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable. The Fourth Amendment does not extend to open fields because an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.
6. The area immediately surrounding and associated with the home is the curtilage, which is part of the home itself for purposes of the Fourth Amendment. It harbors the intimate activity associated with the sanctity of a person's home and privacies of life. The extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.
7. Factors to assess if an area is curtilage include: (1) The proximity of the area claimed to be curtilage 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. These factors do not produce a finely tuned formula that when mechanically applied provide a correct answer to all curtilage questions. Rather, they are useful analytical tools to the central question of whether the area is so intimately tied to the home itself that it should be placed under the home's umbrella of Fourth Amendment protection.
8. This court must accept as true all inferences to be drawn from the evidence which support or tend to support the findings of the district court.
9. In determining whether a defendant is able to show the violation of his or her--and not someone else's--Fourth Amendment rights, the definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.
10. A defendant cannot object to the seizure of evidence without proper standing to challenge the validity of the search. On the issue of standing, the burden is on the defendant to show an expectation of privacy in the property searched. A defendant may testify at a suppression hearing to establish his or her standing to challenge a search without jeopardizing his or her defense at trial.
11. Once standing is established, the State bears the burden on a motion to suppress of proving to the district court the lawfulness of the search and seizure by a preponderance of the evidence.
12. The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. Fourth Amendment standing refers to whether the party challenging a search or seizure personally has a legitimate expectation of privacy that was implicated by the challenged governmental action.
13. Fourth Amendment rights are personal rights that may not be vicariously asserted. A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his or her Fourth Amendment rights infringed.
14. As a social guest lacks the requisite property right in a residence or its curtilage, social guests must have a reasonable expectation of privacy in the residence, under United States Supreme Court and Tenth Circuit social guest caselaw, in order to assert their Fourth Amendment rights.
15. The status as an overnight guest is alone enough to show an expectation of privacy in the home that society is prepared to recognize as reasonable. One merely legitimately on the premises does not have the same legitimate expectation of privacy as an overnight guest. When evaluating a case somewhere in between, Minnesota v. Carter, 525 U.S. 83, 86-91, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), considered the purely commercial nature of the transaction engaged in, the relatively short period of time on the premises, and the lack of any previous connection between respondents and the householder.
16. Even social guests who do not stay the night have a reasonable expectation of privacy in the host's home and may therefore challenge a search of the home on Fourth Amendment grounds. According to the Tenth Circuit, a social guest must show a degree of acceptance into the household or an ongoing and meaningful connection to the host's home to qualify for protection under the Fourth Amendment.
17. Social guests have standing to assert a reasonable, subjective expectation of privacy that their host has in his or her residence. As the curtilage is treated as part of the home itself for Fourth Amendment purposes, a social guest standing in the shoes of his or her host has standing to assert a reasonable, subjective expectation of privacy in the residence, which includes the curtilage.
18. Where a defendant, as a social guest, has demonstrated that he or she was entitled to the same Fourth Amendment protection afforded his or her host, the defendant has also demonstrated standing to assert a reasonable, subjective expectation of privacy in the backyard, i.e., curtilage, of the host's residence.
19. When the State fails to demonstrate the lawfulness of a challenged search or seizure, the evidence obtained in violation of the defendant's rights under the Fourth Amendment may be suppressed through application of the exclusionary rule. One exception to the exclusionary rule is the doctrine of attenuation, which provides the poisonous taint of an unlawful search or seizure dissipates when the connection between the unlawful police conduct and the challenged evidence becomes attenuated.
20. Whether the taint of a prior illegality has been purged by sufficient attenuation between the unlawful conduct and the discovery of the challenged evidence is a question of fact reviewed by an appellate court under a substantial competent evidence standard.
21. When evidence would not have come to light but for the illegal actions of the police, the relevant question is whether the allegedly tainted evidence was discovered through exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.
22. In determining whether law enforcement officers obtained allegedly tainted evidence through exploitation of an illegality, the following factors are considered: (1) the time that elapsed between the illegality and the acquisition of the evidence sought to be suppressed, (2) the presence of any intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. But no one factor is controlling, and other factors also may be relevant to the attenuation analysis.
Jonathon L. Noble, assistant county attorney, argued the cause, and Amy Aranda, acting county attorney, Vernon E. Buck, first assistant county attorney, and Derek Schmidt, attorney general, were on the brief for appellant.
Stephen J. Atherton, of Atherton & Huth, of Emporia, argued the cause and was on the brief for appellee.
MICHAEL J. MALONE, Senior Judge, assigned.
[301 Kan. 457] OPINION
This interlocutory appeal concerns three issues: whether a residential backyard constitutes part of the curtilage under the Fourth Amendment to the United States Constitution; whether a social guest has standing to challenge the search of the curtilage at a host's residence; and whether drugs subsequently found on the defendant's person after an illegal search of the curtilage should be suppressed as fruit of the poisonous tree.
Police searched the backyard of a residence that defendant Cyrus Talkington was visiting and discovered methamphetamine near the back door. Talkington was arrested, and marijuana was found on his person. Talkington was charged with possession with intent to distribute methamphetamine, felony possession of drug paraphernalia, possession of more than 1 gram of methamphetamine without an affixed Kansas drug tax stamp, trafficking contraband in a correctional institution, and possession of marijuana. The district court granted his motion to suppress, reasoning the methamphetamine was found in the curtilage of the home, that a social guest has standing to assert a host's Fourth Amendment rights in the curtilage, and that the marijuana found on Talkington was fruit of the poisonous tree. The State appealed.
The Court of Appeals reversed, finding the backyard where the methamphetamine was found was not curtilage subject to a reasonable expectation of privacy, the standing issue
was thus moot, and the subsequent search of Talkington's person following his arrest was lawful. State v. Talkington, 299 P.3d 798, 2013 WL 1859215 (Kan. App. 2013) (unpublished opinion). We granted Talkington's petition for review which argued the panel erroneously [301 Kan. 458] engaged in reweighing the evidence rather than determining if substantial competent evidence supported the district court's suppression order.
Jurisdiction is proper under K.S.A. 60-2101(b) (review of Court of Appeals decisions upon timely petition for review).
Factual and Procedural Background
Around 4:30 p.m. on June 22, 2011, Lyon County Deputy Sheriff Cory Doudican and Emporia Police Officer D.J. Dragonas drove to a single-family residence in Emporia, Kansas. The officers were looking for Matthew Tucker to arrest on an outstanding warrant. The officers parked and exited their vehicle. As they approached the property, they observed Derric Joshua Garrison and Talkington, each with a leashed dog, walking from the south side of the house. Garrison lived at the residence, and Talkington was a long-time acquaintance who had come to the residence on numerous occasions to visit and to work on cars and mopeds.
Each man dropped the leash he was holding, and the dogs ran toward the officers, while Garrison and Talkington ran to the back of the house. Shortly thereafter, the men returned to the front of the house and restrained the dogs. The officers had a brief conversation with them about their actions and asked if Tucker was at the residence. Talkington stated he did not know Tucker.
Dragonas stayed with the men while Doudican walked to the backyard. Because there was no sidewalk to the back of the house, Doudican walked on an adjacent lot before walking back onto Garrison's property. Doudican was looking for Tucker or any weapons that could be used to ambush the officers. In the backyard, Doudican found a baggie of methamphetamine near a PVC pipe protruding from the ground. The baggie was partially covered by insulation on the ground and was about 3 to 5 feet from the back door of the residence. The baggie was about 20 yards from the property line. Doudican did not realize what it was until he was 5 to 10 feet from it.
Talkington and Garrison were arrested. Talkington was read his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was told he was being [301 Kan. 459] arrested for methamphetamine found in the backyard. He said he did not know anything about it. Talkington was transported to the Lyon County Jail where officials discovered a baggie of marijuana during an inventory search of his belongings.
Talkington was charged with possession with intent to distribute methamphetamine, felony possession of drug paraphernalia, possession of more than 1 gram of methamphetamine without an affixed Kansas drug tax stamp, trafficking contraband in a correctional institution, and possession of marijuana. The State also prosecuted Garrison for possession of methamphetamine. Both Garrison and Talkington filed motions to suppress in their respective cases.
In Garrison's case, the district court suppressed the evidence after applying the factors set forth in United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). The court reasoned that the area where the methamphetamine was found was within the curtilage because the contraband was found in very close proximity to the house, Garrison had posted signs dissuading entry upon his property, and some sort of barrier had to be crossed to enter the property.
The district court incorporated all of the testimony from Garrison's hearing into the record at Talkington's suppression hearing, and the parties stipulated that Talkington was Garrison's social guest. At the hearing, Talkington argued that he had a similar right to privacy in the curtilage of the residence where he was a social guest, and the marijuana subsequently found on his person should be suppressed as fruit of the poisonous tree. Both hearings elicited testimony concerning the layout and characteristics of the house and surrounding property.
Garrison's single-family home is located on 0.9 acres, with the majority of the land in the backyard. A sidewalk runs along the front of the house parallel to the street, but no path or sidewalk leads to the backyard. A short rock wall runs along the south side of the property. Doudican estimated it was 2 feet high; however from other evidence, the district court found it was no more than 1 foot high. Several trees line this wall but do not block the view to the backyard and side of the house. The north side of the property [301 Kan. 460] has a short wire fence, i.e., three posts connected by wire, which does not inhibit an onlooker from seeing the backyard from an adjacent property. An alleyway runs along the west or rear of the property. A " No Trespassing" sign and a " No Soliciting" sign are affixed to the front of the house.
At Garrison's successful suppression hearing, the district court held the area in which the methamphetamine was found was within the curtilage of his property, and no applicable exception existed for the allowance of a warrantless search. The district court granted Talkington's motion to suppress, reasoning that as a social guest he was entitled to the expectation of privacy enjoyed by his host, Garrison. The court further found that the marijuana was discovered on Talkington at the jail within a short time of the illegal search and that no intervening circumstances existed. Accordingly, the district court held that the marijuana seizure was fruit of the poisonous tree and should be suppressed as well.
The State filed an interlocutory appeal. The Court of Appeals reversed and remanded in Talkington,
299 P.3d 798, 2013 WL 1859215, at *1. Applying the Dunn factors, the panel agreed the location of the methamphetamine near the back door weighed in favor of Talkington and little evidence was presented concerning the use of the property. However, the panel stated that the factors concerning whether the area was protected by an enclosure and whether steps were taken to protect the area from observation, i.e., the lack of enclosed fencing which did not obstruct the view or access to the backyard, weighed in favor of the State. Accordingly, the panel held the backyard was not part of the curtilage, and the subsequent search of Talkington when he was booked into jail was also lawful. Talkington,
299 P.3d 798, 2013 WL 1859215, at *3-7. Because of its decision that there was no illegal search, the panel did not address whether a social guest has standing to challenge the lawfulness of a search in the curtilage.
299 P.3d 798, 2013 WL 1859215, at *6.
We granted Talkington's petition for review pursuant to K.S.A. 20-3018(b) and K.S.A. 60-2101(b) (review of Court of Appeals decisions upon timely petition for review).
[301 Kan. 461]Did the Court of Appeals Reweigh Evidence When Reversing the District Court's Findings That Evidence Found in the Backyard Should Be ...