Saturday, November 15, 2014

Incriminating nature of Q-tips not apparent

Rick Kittel won in State v. Rice, No. 110,396 (Kan. App. Oct. 24, 2014)(unpublished), obtaining a suppression order in a Lyon County drug prosecution.  The case involved the seizure of some Q-tips seen in plain view after officers were given consent to enter an Emporia apartment as part of a DCF home check.  After the Q-tips tested positive for methamphetamine, officers obtained a warrant and discovered other evidence of drugs and paraphernalia.  The COA agreed that the Q-tips and the evidence derived from the Q-tips should have been suppressed:
The seizure of the Q-tips in this case cannot be upheld under the plain-view exception because their incriminating nature was not apparent without conducting some further search of the Q-tips, i.e ., seizing the Q-tips for further observation and field testing.  According to Officer Sage, at a glance, the Q-tips did not appear to be discolored. It was not until they were actually seized that a discoloration was observed. And it was not until the Q-tips were tested that it was clear they were contaminated with methamphetamine. Because of these facts, the plain-view exception does not apply.
Because none of the exceptions to a warrantless search and seizure existed at the time Officer Sage seized the Q-tips and had them tested, the warrantless seizure of the Q-tips was unconstitutional. Thus, the Q-tips found on the coffee table were inadmissible at trial under the exclusionary rule.
[Update: the state did not file a PR and the mandate issued on December 1, 2014].]

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