Saturday, March 27, 2010

Hey copper, stay out of my trash!

Brenda M. Jordan, of Brenda Jordan Law Office LLC, won in State v. Wheeler, Case No. 103,628 (March 26, 2010) (unpublished), affirming Judge Ireland’s suppression of evidence in a Pottawatomie County prosecution for felony possession of methamphetamine, felony possession of marijuana, and possession of drug paraphernalia.

In the district court, Judge Ireland ruled that law enforcement illegally searched Wheeler's trash in order to obtain evidence to support a search warrant for his residence. The suppression was based on stipulated facts which stated in part that:
The basis for the probable cause of the warrant was predicated primarily on two trash pulls: April 16, 2008, and April 23, 2008.

Pottawatomie County Sergeant Brad Rose obtained the trash on both occasions from the trash collector.

The defendants' [sic] hired the trash collector to deliver the trash to the transfer station.

The transfer station bears a sign that prohibits removal of trash once placed there.

The trash collector picked the trash up from the defendants' residence, located approximately 255' (as the crow flies) from the roadway. The trash is set out under a balcony type area of the residence, and is not visible from the roadway.

Det. Rose advised that on the dates he received the trash from the trash collector, he was advised by the trash collector that the defendants [sic] garbage was picked up last and separated from the rest of the trash that was collected that day.

Det. Rose advised that on both occasions he received the trash from the trash collector, the trash identified as the defendants' trash was separated from the rest of the trash and removed by Det. Rose.
The COA affirmed the district court’s suppression of the evidence from the trash pull, relying in part upon State v. Hoffman, 40 Kan. App. 2d 894 (2008) (evidence properly suppressed when officer rode in trash truck to collect trash from curtilage of defendant’s property). The COA held that there was no question that Wheeler’s trash was within the curtilage of the residence before it was picked up by the trash collector. The court also noted that the State failed to meet its burden to show that the trash collector was not an agent of the State. The opinion was written by Judge Malone and featured a concurring opinion from Judge Green and a dissent from Judge McAnany.

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