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Appeal from Johnson District Court; JANICE D. RUSSELL and JOHN P. BENNETT, judges.
BY THE COURT
1. The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights assure each person's right to be secure in his or her person and property against unreasonable searches and seizures.
2. When a search warrant affidavit is challenged, the reviewing court applies a deferential standard of review.
3. The anticipated controlled delivery of a package likely containing illegal contents is sufficient to establish probable cause to issue a search warrant.
4. A controlled delivery is the delivery of a package containing suspected illegal contents under the control and supervision of law enforcement officers whether accomplished in a hand-to-hand delivery or through a drop-off delivery.
5. Anticipatory search warrants are issued based on probable cause in anticipation at some future time certain evidence of a crime will be located at a specific place.
6. The triggering event for a controlled delivery anticipatory search warrant's execution is someone taking possession and control over the package at the specified place under the supervision of law enforcement officers.
7. A waiver by the defendant of his or her constitutional right to a jury trial must be done on the record or in writing personally by the defendant after the district court has explained on the record to the defendant what constitutional rights he or she is relinquishing by waiving his or her right to a jury trial.
8. Failure by the district court to explain to the defendant on the record the right to a jury trial and then obtain the defendant's verbal or written waiver is error that requires reversal of the bench trial conviction.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, senior deputy district attorney, Paul E. Brothers, legal intern, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., MCANANY and SCHROEDER, Judge.
Jordan Mullen appeals his conviction for possession with intent to distribute marijuana. Mullen claims the district court erred in that it lacked probable cause to issue the anticipatory search warrant and the trigger event allowing the anticipatory search warrant to be executed never occurred. We disagree. We affirm the denial of Mullen's motion to suppress. The record is silent involving the district court's explanation to Mullen of his right to a jury trial and his waiver of that right. Thus, we reverse Mullen's conviction for possession with intent to distribute marijuana and remand with directions.
On November 8, 2011, Justin Lewis, a United States Postal Inspector in Kansas City, Missouri, noticed a suspicious package. Lewis contacted the Shawnee Police Department. He informed the police he had a suspected drug package addressed to a house on Meadowsweet Lane, Shawnee, Kansas, for delivery that a police K-9 unit had hit on. Based on Lewis' information, Detective Steve Hahne of the Shawnee Police Department requested and obtained an anticipatory search warrant for the house on Meadowsweet Lane from a magistrate judge. The anticipatory search warrant required a controlled delivery of the suspected drug package to the house before it granted authority to enter the house.
Upon receipt of the anticipatory search warrant, Shawnee police officers began surveillance of the house on Meadowsweet Lane. Officers observed Lewis, dressed in a postal carrier uniform, drive a postal vehicle to the house at 1:03 p.m. Lewis exited his vehicle, knocked on the door, and yelled, " Post Office." When no one answered the door, he left the suspected drug package on the porch by the front door of the house, returned to the postal vehicle, and left. At 1:06 p.m., an unknown individual opened the front door, picked up the package, and took the package inside the house. Officers then executed the search warrant at 1:17 p.m. by entering the house.
Officers encountered the unknown male, later identified as Mullen, alone in the house. The house did not belong to Mullen, but Mullen was living at the house. Officers did not see anyone enter or leave the house between the time the package was left on the porch and when the search warrant was executed. The unopened package was found on the kitchen counter.
After giving Mullen his Miranda warnings, Hahne asked Mullen what was in the package. Mullen initially claimed he did not know what was in the package; however, upon additional questioning, Mullen admitted he knew it contained marijuana. Mullen eventually admitted he had agreed to retrieve the package from the front porch for a friend. Mullen revealed to Hahne that his
friend told him a package would be delivered to the house between 11 a.m. and 2 p.m., and Mullen needed to be at the house to retrieve the package from the front steps. Additionally, Mullen was instructed to not open the package and that someone would stop by to pick it up. ...