Saturday, December 05, 2015

No concern for welfare supporting welfare check

Rick Kittel won in State v. Canfield, No. 112,610 (Kan. App. Nov. 13, 2015)(unpublished), obtaining reversal of a Shawnee County drug conviction. Police had received a call from a caller who claimed he was the father of Ms. Canfield's children expressing concerns about the children. Police went to the house and pounded on the door until Terrance Jackson came to the door and told police that Ms. Canfield was not there. From the doorway, the officer could see two children, but no contraband in plain view. The children appeared clean and unharmed. The officer arrested Jackson and another officer entered the home. Upon entry, officers found Ms. Canfield sitting on a bed and arrested her on an outstanding warrant and, during a search incident to arrest, found drugs.

The district court had denied the motion to suppress holding that the officers were permitted to make a warrantless entry for a "welfare check" of the children. The COA disagreed:
When Jackson eventually reopened the door, Officer Cruse warned Jackson about obstructing his efforts to execute the arrest warrant on Canfield. He said nothing to Jackson about harboring children in a dangerous environment. But he was able to see behind Jackson the two children standing in the hallway. The children appeared to be clean, and there was no contraband in plain view. The home appeared to be clean and well taken care of. There was no indication the children were in immediate danger.

Officer Cruse did not speak to the children. He did not ask Jackson about the children. He did not inquire who the children were, where their parents were, who was looking after them, or whether there had been any drugs consumed in their presence. The only suspicion he had was that if the children were there, Canfield also may be there. At that point Officer Cruse entered the residence, not for the purpose of addressing the needs of the children but to arrest their mother. He walked right past the children and into the room where Canfield sat on the bed.

There is no testimony that either officer did anything whatsoever to look after the well-being of the children during the entire time they were at Canfield's home. The generalized concern expressed in the call to the police dispatcher was not borne out by any observations by the police officers when they arrived at the Canfield home. We find no evidence in the record which would lead a prudent and reasonable officer to see the need to enter Canfield's home to protect the children. Thus, we conclude the district court erred in finding that Officer Cruse was justified in entering Canfield's home to conduct a welfare check of the children.
As a result, the COA reversed the drug conviction.

[Update: the state did not file a PR and the mandate issued on December 28, 2015.]

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