Saturday, May 10, 2014

No connection between trash and residence targeted in search warrant

Paul D. Cramm won in State v. Malone, No. 110,191 (Kan. App. April 18, 2014), affirming Judge Davis' suppression order in a Johnson County drug prosecution.  The case involved discovery of drug paraphernalia in one trash bag and discovery of some documents linked to Mr. Malone in another trash bag.  Based on this evidence, police obtained a search warrant of Mr. Malone's residence at a different location.  The COA agreed with Judge Davis:
In ruling on the motion to suppress, the district court found fault with both the trash pull and the garden center purchase information. First, the court determined that the indicia of residency needed to have been in the same bag as the contraband, and the court found Detective Stein's conclusion that the contraband belonged to the Troost residence to be unsupported by any facts. Second, the court concluded the link between Malone and the garden center purchase was "tenuous," as there was no evidence establishing Malone as the person who made the purchase. 
We agree with the district court's conclusion on this point. When it comes to trash pulls, if a search warrant is to be issued, the general rule requires some evidence connecting the drug evidence discovered in a trash bag and the residence to be searched.
. . . .
This case involved only one trash pull. There was no surveillance evidence connecting the trash bags with the residence or the people who lived in that residence. In short, there was no evidence of illegal activity in the house.
In our view, there is no connection between the residence and the contraband that is sufficient to support the issuance of a search warrant. Not only was the mail found separately from the contraband, but the mail was not addressed to Mai Lin—the only person shown to have a connection to the garden center purchase and to Malone. Anyone could have passed by the Troost residence and thrown the bag containing contraband into the trash can. Stein's affidavit did not indicate that anyone saw Malone or another resident of the Troost house place the bags in the can, and there is no indication that more than one trash pull was conducted during this investigation.
The COA was also troubled by lack of information regarding what the affiant deemed suspicious remote purchases of cultivation paraphernalia.  The COA also agreed with the district court that the affidavit was so lacking that the good-faith exception did not apply.  In fact, the COA may have gone further:
We question whether the good-faith exception can apply under these facts. Detective Stein, the affiant who obtained this search warrant, along with other officers, executed the search. Stein knew he had no evidence linking the contraband with the residence. In the affidavit, Stein acknowledged that he found the contraband in a different bag than the bag with the indicia of residency. Since Stein offered no other information that would link the trash bags to the Troost residence, we conclude he knew of no other evidence linking the two. For example, Stein did not say he saw Malone or another resident of the Troost house place the bags in the can. Stein did not indicate he conducted multiple trash pulls finding contraband each time. Stein did not indicate he had been conducting surveillance of the Troost house. Stein simply indicated that the trash bags were found at the curb near the Troost residence. If he had any additional knowledge he certainly did not share it with the judge who issued the search warrant.
[Update: the state filed a PR on May 19, 2014.]

[Further update: the KSC denied the state's PR and the mandate issued on September 2, 2014.]

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