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State v. Regelman

Supreme Court of Kansas

December 7, 2018

State of Kansas, Appellant,
v.
Tyler Regelman, Appellee.

         SYLLABUS BY THE COURT

         1. On a motion to suppress evidence, an appellate court reviews the factual findings underlying the trial court's suppression decision using a substantial competent evidence standard and the legal conclusion drawn from those factual findings using a de novo standard. The court does not reweigh evidence.

         2. The safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890 (1966), are triggered only when an accused is (a) in custody and (b) subject to interrogation. Custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom in any significant way. A custodial interrogation is distinguished from an investigatory interrogation, which occurs as a routine part of the fact-finding process before the investigation reaches the accusatory stage.

         3. Factors to consider in determining if an interrogation is investigative or custodial include: (a) the interrogation's time and place; (b) its duration; (c) the number of law enforcement officers present; (d) the conduct of the officer and the person questioned; (e) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (f) whether the person is being questioned as a suspect or a witness; (g) whether the person questioned was escorted by officers to the interrogation location or arrived under his or her own power; and (h) the interrogation's result, e.g., whether the person was allowed to leave, was detained further, or was arrested after the interrogation. No single factor outweighs another, nor do the factors bear equal weight. Every case must be analyzed on its own particular facts. 4.

         An appellate court's review of a trial court's determination whether an interrogation was custodial has two distinct inquiries. Under the first, the appellate court determines the circumstances surrounding the interrogation, employing a substantial competent evidence standard of review. In determining if there is substantial competent evidence supporting the existence of the circumstances found by the trial court, an appellate court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. The second inquiry employs a de novo standard of review to determine whether, under the totality of those circumstances, a reasonable person would have felt free to terminate the interrogation and disengage from the encounter.

         5. When an affidavit supporting a search warrant contains both lawfully and unlawfully obtained information, a reviewing court asks whether the affidavit supplied a substantial basis for finding probable cause without the unlawfully obtained information. If a substantial basis nonetheless existed for finding probable cause, the warrant was valid and evidence obtained pursuant to it will not be suppressed.

         6. Probable cause to support a search can be established if the totality of the circumstances indicates there is a fair probability the place to be searched contains contraband or evidence of a crime.

         7. The totality of the circumstances surrounding a law enforcement officer's detection of the smell of raw marijuana emanating from a residence can supply probable cause to believe the residence contains contraband or evidence of a crime. Such circumstances include, but are not limited to, proximity to the odor's source, reported strength of the odor, experience identifying the odor, elimination of other possible sources of the odor, and the number of witnesses testifying to the odor's presence. This is a case-by-case determination based on the circumstances. Not all cases relying on odor will have the same result.

         8. When reviewing a judge's finding of probable cause to issue a search warrant, the correct standard of review is more deferential to the issuing judge than the standard applied when reviewing a judge's conclusion that probable cause was sufficient to support an exception to the Fourth Amendment's warrant requirement. More specifically, the standard is whether the evidence provided the issuing judge with a substantial basis for determining that probable cause existed.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed March 31, 2017.

          Appeal from Geary District Court; Steven L. Hornbaker, judge.

          Tony Cruz, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the briefs for appellant.

          Amber Cabrera, assistant public defender, of North Central Regional Public Defender's Office, of Junction City, argued the cause and was on the briefs for appellee.

          OPINION

          BILES, J.

         The State appeals a district court's order suppressing drug-related evidence seized during a residential search supported by a warrant. The Court of Appeals affirmed the suppression order. State v. Regelman, No. 116, 398, 2017 WL 1197135, at *6 (Kan. App. 2017) (unpublished opinion). We consider: (1) whether Miranda warnings were required before the defendant made incriminating statements used to support the warrant; and (2) whether the officer's testimony that he detected the smell of raw marijuana coming from the residence supported the probable cause for the search warrant. We affirm in part, reverse in part, and remand the case to the district court for further proceedings.

         We agree with the lower courts that Miranda warnings were required under the circumstances presented, so the incriminating statements were properly suppressed since the warnings were not given before the statements were made. But we disagree with the lower courts about the smell of raw marijuana failing to provide probable cause under the case's facts. See State v. Hubbard, 308 Kan. ___, ___ P.3d ___ (No. 113, 888, this day decided), slip op. at 24 (holding the totality of the circumstances surrounding a police officer's detection of the smell of raw marijuana emanating from a residence can supply probable cause to believe the residence contains contraband or evidence of a crime).

         Factual and Procedural Background

         Junction City police officers visited Tyler Regelman's home to conduct a welfare check after his employer reported him missing. Officer Douglas Cathey later testified he could smell raw marijuana while standing at the front door waiting for Regelman to answer after the officer rang the doorbell. When Regelman opened the front door, Cathey testified the marijuana smell became stronger.

         Cathey asked questions related to the wellness check and then almost immediately inquired about the marijuana odor. Regelman denied smelling anything and refused to allow the officers inside the house. Cathey then replied, "Okay. Well, what we are going to do is, I'm going to apply for a search warrant." Regelman acknowledged this. The officer then said, "[I]n the meantime, we're just going to hang out here." Regelman replied, "[I] don't smoke, so I'm going to leave."

         Regelman began to walk down the porch steps and away from the house, toward the street. Cathey instructed: "Mr. Regelman stop walking." Regelman complied, turned around, and repeated, "I don't smoke or anything." Cathey then told Regelman, "Okay, you can either sit on the steps or sit in my patrol car. Which one do you want to do?" Regelman asked to return inside his house, but Cathey told him, "No you may not." This all occurred less than a minute after Regelman answered the door.

         After some additional back and forth, Regelman said, "I'm not hurting anybody but myself." Cathey asked what he meant. An audio recording reflects the following exchange:

"[Regelman]: I mean, I've got a problem. I know I've got a problem. I'm not trying to hide it ...

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