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State v. Dannebohm

Supreme Court of Kansas

July 6, 2018

State of Kansas, Appellant,
v.
Brandon Alvin Dannebohm, Appellee.

         SYLLABUS BY THE COURT

         1. When a defendant's standing to challenge a search is in question, the burden falls on the defendant to show an expectation of privacy in the property searched. Defendants may testify at a suppression hearing to establish their standing to challenge a search without jeopardizing their defense at trial.

         2. To have standing to challenge a home search, a guest must show a degree of acceptance into the household or an ongoing and meaningful connection to the host's residence so that the guest has a reasonable expectation of privacy in the host's residence.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed August 11, 2017.

          Appeal from Barton District Court; Ron Svaty, judge.

          Douglas A. Matthews, assistant county attorney, argued the cause, and Amy J. Mellor, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellant.

          Donald E. Anderson II, of Anderson, Bristow, & Anderson Law Office, of Ellinwood, argued the cause and was on the brief for appellee.

          OPINION

          STEGALL, J.

         Law enforcement officers searched Alexis Tracy's apartment for Brandon Alvin Dannebohm but did not find him. Instead, they found his safe, which contained 447.5 grams of methamphetamine. Dannebohm moved to suppress this evidence. But the State argued Dannebohm lacked standing to challenge the search because the apartment was not his and he did not live there.

         The district court at first agreed with the State, but upon reconsideration, it found Dannebohm had standing and went on to suppress the evidence. The State filed an interlocutory appeal, and our Court of Appeals reversed, holding Dannebohm lacked standing. We disagree. Dannebohm had a reasonable expectation of privacy in Tracy's apartment at the time of the search, so he has standing to challenge the search. We thus reverse and remand this appeal to the Court of Appeals so it can rule on the merits of the State's appeal.

         Factual and Procedural Background

         On June 23, 2015, officers Chance Bailey and Jacob Harlow of the Ellinwood Police Department were searching for Dannebohm who had an outstanding arrest warrant. That evening, law enforcement received a tip that Dannebohm was at Tracy's apartment in Ellinwood. In fact, Dannebohm had arrived at Tracy's apartment that morning carrying a blue cooler as Tracy was leaving to run errands.

         No one was present at Tracy's apartment when the officers arrived. Eventually, the apartment manager helped Officer Harlow get in touch with Tracy over the phone. He told Tracy they were looking for Dannebohm and believed he was inside her apartment. Tracy-who was in Great Bend-said Dannebohm was not there. She said she was driving home. Tracy did not mention that Dannebohm was with her in the vehicle at the time of the call. Afterwards, she dropped him off at her mother's house and returned to Ellinwood.

         Once she arrived, Tracy told the officers she was "pretty sure" there was nobody in her apartment. Officer Harlow testified that Tracy said Dannebohm had been there earlier that day but "she didn't believe he was still there." Officer Harlow still asked Tracy for her consent to search the apartment for Dannebohm, and she assented. Tracy remained outside with Officer Bailey while other officers-along with a police dog-searched the apartment. Dannebohm was not inside. But resting on a bed was "a glass pipe with white and burnt residue." In the same room was a black Sentry safe being used as a TV stand. Tracy said the safe belonged to Dannebohm. Also in the room was the same blue cooler Dannebohm carried into the house that morning. Somewhere in the apartment the officers found a duffel bag containing clothing that evidently belonged to Dannebohm.

         At some point, the dog alerted to the presence of drugs on the bed near the pipe. It also detected the presence of drugs on the safe. The officers seized the pipe and the safe but not the duffle bag. Rather than trying to open the safe, they took it to the police department where they placed it in an evidence locker. After obtaining a warrant, the officers opened the safe using the combination (which they already possessed because they had dealt with the same safe in a prior case). Inside was a warrant and bonding information for Dannebohm as well as 447.5 grams of methamphetamine.

         Tracy said Dannebohm brought the safe to her apartment sometime before June 9, 2015. Before the search, she told the officers that if there were drugs in the safe, they belonged to Dannebohm and not her. Tracy stored no personal items in the safe. When asked if she could access its contents, she responded, "I'm pretty sure the PIN was written down somewhere but, I mean, I never really got into it." She said the safe was occasionally left open.

         The State charged Dannebohm with possession with intent to distribute methamphetamine and no drug tax stamp. Before trial, he moved to suppress the evidence because he believed the search with the dog exceeded the scope of Tracy's consent. But before the court considered the merits of Dannebohm's claim, the State moved to dismiss his motion, arguing he lacked standing to challenge the search because he had no reasonable expectation of privacy in Tracy's apartment.

         The district court conducted a bifurcated evidentiary hearing on the motion to dismiss. Tracy testified she had known Dannebohm for about 10 years. She and Dannebohm had no romantic relationship. Tracy thought of him as a brother. That summer Dannebohm was at her apartment at least once a day to check on her because she was pregnant. Tracy considered Dannebohm a welcomed guest. When asked if Dannebohm would ever stay the night, she answered, "Maybe once or twice." Tracy let him keep some ...


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