[Copyrighted Material Omitted]
Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge.
BY THE COURT
1. In reviewing the granting or denial of a motion to suppress evidence, the appellate court determines whether the factual findings underlying the district court's suppression decision are supported by substantial competent evidence. The appellate courts do not reweigh the evidence or reassess the credibility of witnesses. The ultimate legal conclusion drawn from those factual findings is reviewed under a de novo standard.
2. Under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, individuals have the right to be free from unreasonable governmental searches and seizures.
3. Generally, the State must have a warrant based on probable cause to search a person's home. However, the warrantless search of a person's home may, under some circumstances, be deemed reasonable. One such circumstance exists when the home being searched belongs to a parolee. Parolees have a greatly diminished expectation of privacy, even in their homes, particularly when the parolee has been informed that he or she may be subject to searches as a condition of release. Thus, the government's intrusion on a parolee's privacy may be supported by a diminished level of suspicion.
4. Pursuant to K.S.A. 2012 Supp. 22-3717(k)(3), parolees and persons on postrelease supervision are, and shall agree in writing to be, subject to search or seizure by any law enforcement officer based on reasonable suspicion of the person violating conditions of parole or postrelease supervision or reasonable suspicion of criminal activity.
5. The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. An appellate court must first attempt to ascertain the legislative intent through the statutory language enacted, giving common words their ordinary meanings.
6. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature's intent.
7. K.S.A. 2012 Supp. 22-3717(k)(3) provides that a parolee shall agree in writing to be subject to search or seizure by law enforcement officers based on reasonable suspicion. Based on the plain and unambiguous language of the statute, a parolee's written agreement is a condition for a law enforcement officer's search of a parolee's home based on reasonable suspicion. Otherwise, the statutory language would be rendered meaningless.
8. Consent is an exception to the search warrant requirement. For a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied. The State has the burden of establishing the scope and voluntariness of the consent to search.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and ATCHESON, JJ.
[51 Kan.App.2d 402] MALONE, C.J.:
Jeremy A. Chapman appeals following his convictions of two counts of identity theft and two counts of theft after prior conviction. Chapman raises five issues on appeal: (1) The district court erred in denying his motion to suppress; (2) the prosecutor committed misconduct during closing argument; (3) the district court erred in failing to give a multiple acts instruction; (4) the district court erred in instructing the jury on reasonable doubt prior to the introduction of evidence; and (5) the district court violated his constitutional rights when it sentenced him to an increased sentence, based upon his criminal history, without requiring the State to prove the criminal history to a jury beyond a reasonable [51 Kan.App.2d 403] doubt. We agree with Chapman that the district court erred in denying his motion to suppress evidence seized during the search of his house. Thus, we reverse and remand with directions to grant Chapman's motion to suppress.
On the morning of August 1, 2012, Deputy Reinhardt Hay of the Sedgwick County Sheriff's Office conducted a routine traffic stop in Wichita. Officer Maurice Mitchell of the Wichita Police Department (WPD) arrived to assist with the stop. The driver of the vehicle, later identified as Lucas Arnold, had multiple outstanding warrants for his arrest. During a subsequent search of the vehicle's glove box, Hay found checks, identification cards, Social Security cards, and birth certificates with different names, addresses, and birth dates on them. Mitchell ran some records checks and informed Hay that many of the documents found inside the glove box had been reported stolen.
As Hay searched the vehicle, Arnold called out to Mitchell from the back of the patrol car and said he wanted to " work something out." Arnold said that he knew a man named Jeremy who was making fake IDs and personal checks. Hay and Mitchell transported Arnold to be interviewed by Detective Roger Bieberle of the WPD's financial crimes section. During the interview, Arnold told Bieberle that a man named Jeremy had made the fake IDs found in the glove box. Arnold said that Jeremy lived in a green house near the northeast corner of Mount Vernon and Lulu Streets. Arnold told Bieberle that Jeremy kept " all kinds" of checks and IDs in a basket beside a pool table in his basement.
Mitchell, Bieberle, and several other WPD officers drove to the area of Mount Vernon and Lulu Streets and found a green house matching the description provided by Arnold. The officers ran a check and learned that the house was registered to Jeremy Chapman. The officers knocked on the door and a man answered. He identified himself as Jeremy and provided identification stating that his
full name was Jeremy Chapman. Bieberle explained why the officers were there and asked Chapman if they could search the house. Chapman ...