BY THE COURT
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.
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
State has the burden to prove by a preponderance of the
evidence that a defendant's consent to search is valid.
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.
acquiescence to a claim of lawful authority is inadequate to
show voluntary consent.
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.
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.
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.
Gardner, P.J., Buser, J., and Lahey, S.J.
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.
and Procedural Background
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.
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.
then clarified that he did not recall Daino making any verbal
"[THE STATE:] Did the defendant specifically tell you,
you could come into the apartment verbally?
"[MCKEIRNAN:] Verbally, he did not say, yes, sir, please
"[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."
"absolutely" believed Daino was consenting to let
him enter his apartment.
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
. . . .
". . . I think the officer candidly admitted it, and I
appreciated that, that it was nonverbal. It was a
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.
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.
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
• Multiple glass bongs,
• Multiple containers with butane honey oil or
• Five 2mg Alprazolam pills,
• 15 Amphetamine/Dextroamphetamine pills,
• Numerous plastic bags of various sizes,
• Digital scale,
• Paper roller,
• Package of blotter papers,
• $363 in cash,
• Three strips of paper with ...