Searching over 5,500,000 cases.

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. Daino

Court of Appeals of Kansas

January 10, 2020

State of Kansas, Appellant,
Gianni Massimo Daino, Appellee.


         1. The failure to cross-appeal from an adverse decision by the district court generally bars the prevailing party from challenging the lower court's ruling on that issue.

         2. Section 15 of the Kansas Constitution Bill of Rights provides the same protection from unlawful government searches and seizures as does the Fourth Amendment to the United States Constitution.

         3. The State has the burden to prove by a preponderance of the evidence that a defendant's consent to search is valid.

         4. The standard for measuring the scope of a person's consent under the Fourth Amendment is that of objective reasonableness-what would a reasonable person have understood by the exchange between the officer and the person.

         5. Mere acquiescence to a claim of lawful authority is inadequate to show voluntary consent.

         6. A defendant may validly consent for officers to enter his or her apartment by responding nonverbally to the officers' request to enter by acts that are specific and unequivocal, such as by opening the door widely, stepping back, and making a sweeping gesture with his or her hand.

         7. Consent must be specific and unequivocal, but it need not be verbal. Consent may instead be granted through gestures or other indications of agreement, so long as they are comprehensible enough to a reasonable officer.

          Appeal from Johnson District Court; Thomas M. Sutherland, judge.

          Kendall Kaut and Jacob M. Gontesky, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

          Senanem D. Gizaw, of Johnson County Public Defender's Office, for appellee.

          Before Gardner, P.J., Buser, J., and Lahey, S.J.

          Gardner, J.

         This is the State's interlocutory appeal from the district court's suppression of evidence taken from Gianni Massimo Daino's apartment. The district court found that Daino's actions, in response to the officer's request to enter his apartment, would be found by a reasonable person to indicate his consent for the officers to enter. Yet the district court felt compelled by Kansas law to hold that Daino's acts were implied consent, which is not valid. We find that Daino's acts, whether labeled as express consent or implied consent, gave valid consent for officers to enter his apartment.

         Factual and Procedural Background

         The facts, as established at the suppression hearing, are not disputed. Olathe police officers were sent to investigate a narcotics odor in an apartment complex. Officers Robert McKeirnan and Kelly Smith responded in uniform and spoke with a male who told them that someone in unit 48 was partying and he could smell marijuana. Before the officers approached that unit, they could smell marijuana but could not tell where the smell was coming from. When the officers arrived at the door of unit 48, they knocked on the door but did not announce themselves. After about a minute, Daino, who was 18, answered the door and opened it 8-10 inches, enough to reveal a part of his body. The officers then noticed an overwhelming odor of fresh marijuana coming from inside Daino's apartment and that there had been a lot of smoking as well.

         McKeirnan told Daino that he knew there was a lot of marijuana in the apartment because he could smell it, then said: "Well, here's the deal, not a huge deal, but I've got to write a ticket if there's marijuana in the house, Okay? Because it is illegal, so let me step in with you real quick and we will get it figured out, okay?" McKeirnan testified that Daino then "nodded and just said, 'Okay. Let's do this.' And then at that point he opened the door for me and invited me in." Daino had at first blocked McKeirnan's sight into his apartment, but after McKeirnan requested to enter, Daino "opened up the door completely and stood out of the way so that we could enter." McKeirnan said Daino opened the door about as far as it could go in the apartment.

         McKeirnan then clarified that he did not recall Daino making any verbal response.

"[THE STATE:] Did the defendant specifically tell you, you could come into the apartment verbally?
"[MCKEIRNAN:] Verbally, he did not say, yes, sir, please come in.
"[THE STATE:] Did he say anything out loud to you?
"[MCKEIRNAN:] Not that I-not that I recall from that day. At that point, he just opened up the door and allowed us into the apartment."

         McKeirnan "absolutely" believed Daino was consenting to let him enter his apartment.

         At counsel's request, McKeirnan stood up and replicated with the swinging door near the witness stand the actions Daino had taken at his door. The district court later detailed McKeirnan's demonstration this way:

"I don't know how to accurately portray this on the record, but when the officer demonstrated what the defendant did in this case, any reasonable person that exists in the United States would have construed his gesture as 'come on in the apartment.'
"He opened the door up, and he took his right hand and swung it across his body, and pointed into the apartment. No reasonable person could have construed that as don't come in, or I'm not sure if I want you to come in, or I'm still trying to decide whether I want you to come in. Any reasonable person would have construed that as come on in the apartment.
. . . .
". . . I think the officer candidly admitted it, and I appreciated that, that it was nonverbal. It was a gesture."

         Smith testified that McKeirnan knocked, Daino answered the door, McKeirnan asked to enter, and Daino opened the door wider and stepped back to let them inside. He believed Daino's acts meant that he was consenting to let them enter his apartment. Daino did nothing then or later to suggest he was somehow withdrawing his consent or limiting it, except for asking them on the "written consent to search" form not to search his roommate's bedroom.

         The district court also heard an audio recording of the encounter. In that recording, McKeirnan asks, "Let me step in with you real quick and we'll get it figured out, okay?" A voice softly responds "[O]kay." Yet neither party argues on appeal that Daino verbally consented, and neither officer testified about the "okay" or its source at the suppression hearing. We thus disregard it, as do the parties.

         Once inside the apartment, McKeirnan asked Daino where he kept his marijuana. Daino responded that it was in his bedroom. McKeirnan asked whether he could go to the bedroom to get it, and Daino either nodded or said it was okay. McKeirnan told Daino that as long as it was a little marijuana and some paraphernalia, he would write Daino a ticket and give him a court date. Daino responded, "[I]t's a lot of weed." The officers searched Daino's apartment and found these items:

• Black notebook which appeared to be a ledger for drug sales,
• Multiple glass bongs,
• Multiple containers with butane honey oil or "shatter" inside,
• Five 2mg Alprazolam pills,
• 15 Amphetamine/Dextroamphetamine pills,
• Numerous plastic bags of various sizes,
• Digital scale,
• Grinder,
• Paper roller,
• Package of blotter papers,
• $363 in cash,
• Three strips of paper with ...

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.