Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Zwickl

Supreme Court of Kansas

May 5, 2017

State of Kansas, Appellant,
v.
Jeramy A. Zwickl, Appellee.

         SYLLABUS BY THE COURT

         1. Neither the Fourth Amendment to the United States Constitution nor Section 15 of the Kansas Constitution Bill of Rights expressly prohibits the use of evidence obtained in violation of their respective protections. Instead, a judicially created exclusionary rule exists to prevent the use of unconstitutionally obtained evidence.

         2. The exclusionary rule operates to protect Fourth Amendment rights generally through its deterrent effect, rather than serving as a personal constitutional right of the person subjected to an illegal search. To date, we have relied on the United States Supreme Court's Fourth Amendment jurisprudence when applying Section 15 of the Kansas Constitution Bill of Rights.

         3. The exclusionary rule should not be applied to bar use of evidence obtained by law enforcement officers acting in objectively reasonable reliance on a search warrant issued by a detached and neutral magistrate if that warrant is later determined to be invalid, except when: (a) the magistrate issuing the warrant was deliberately misled by false information; (b) the magistrate wholly abandoned the detached or neutral role of a judge; (c) there was so little indicia of probable cause contained in the affidavit used to support the warrant application that it was entirely unreasonable for officers to believe the warrant was valid; or (d) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized.

         4. An appellate court uses a bifurcated standard of review to consider a district court's decision to apply the exclusionary rule to a situation in which law enforcement officers relied in good faith on a judicially issued search warrant. The factual underpinnings for the district court's ruling will be reviewed under a substantial competent evidence standard, while the ultimate legal conclusion to be drawn from those facts will be examined de novo.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed February 12, 2016.

Appeal from Reno District Court; Trish Rose, judge. Judgment of the Court of Appeals reversing the district court and remanding is affirmed. Judgment of the district court is reversed and remanded.

          Keith E. Schroeder, district attorney, argued the cause, and Thomas R. Stanton, deputy district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant.

          Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, argued the cause, and Charles A. O'Hara, of the same firm, was on the brief for appellee.

          OPINION

          BILES, J.

         When law enforcement executes a search warrant that is later found to lack probable cause, a court will not apply the exclusionary rule to bar use of the evidence obtained during that search unless the case falls within one of four exceptions. See State v. Hoeck, 284 Kan. 441, 463-64, 163 P.3d 252 (2007). One such exception is when the warrant was issued based on a supporting affidavit containing so little indicia of probable cause that it would be entirely unreasonable for an officer acting in objective good faith to believe the warrant was valid. 284 Kan. at 464. In this interlocutory appeal, the Court of Appeals disagreed with the district court about that exception's applicability. This impacts the suppression of three pounds of marijuana and other drug evidence. The appellate panel held the affidavit supporting the warrant contained sufficient indicia of probable cause and reversed the district court's contrary conclusion. See State v. Zwickl, No. 113, 362, 2016 WL 556292, at *7 (Kan. App. 2016) (unpublished opinion).

         We affirm the panel's decision and remand the case to the district court for further proceedings.

         Factual and Procedural Background

         Based on information from two confidential informants, Reno County Sheriff deputies began investigating Jeramy Zwickl's suspected drug-related activities. The deputies conducted two trash pulls, secured a warrant to place a GPS device on Zwickl's 2006 Ford Mustang, and with the aid of that device followed Zwickl during his trip to Colorado with a friend.

         Based on the information obtained from these investigatory activities, a deputy prepared an affidavit to support an application for a warrant to search Zwickl's Mustang. It is necessary to copiously recite the affidavit's pertinent parts:

"[¶ 1] I am a Sheriff's Deputy employed by the Reno County Sheriff's Office and assigned to the Reno County Drug Enforcement Unit, hereinafter D.E.U. I have training and experience in the investigation of cases involving the manufacturing, distribution and possession of controlled substances . . . .
"[¶ 2] In October 2011, the D.E.U. received information from a confidential informant, (hereinafter 'C.I. # 1') who was seeking leniency on pending criminal charges. C.I. # 1 has provided information in the past that has proven to be reliable and credible. C.I. # 1 stated that Jeramy Zwickl, who resides at 719 E Ave C, Hutchinson, Reno County, Kansas, was selling a lot of 'kind bud' and was going to Colorado to pick it up. I know from my training and experience that 'kind bud' is a term used for high-grade marijuana normally raised as medical marijuana and sold illegally.
"[¶ 3] On August 14, 2012 the D.E.U. received information from a confidential informant, (hereinafter 'C.I. # 2') who was seeking leniency on pending criminal charges. C.I. # 2 has provided information that the D.E.U. has not yet verified. C.I. # 2 stated that Jeramy Zwickl on East Avenue C in Hutchinson, Reno County, Kansas, on the south side of the street, drives to Colorado to pick up marijuana a couple of times a month. C.I. # 2 stated they [sic] have purchased marijuana from Jeramy on numerous occasions in the past. C.I. # 2 described the house as blue-gray in color, and has a Jeep in the driveway with big mud tires. I later checked local law enforcement in-house records, which show that Jeramy Zwickl lists his address as 719 E ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.