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of the judgment of the Court of Appeals in an unpublished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 ...