Insufficient search warrant affidavit leads to suppression of residential search

Washburn student intern Michelle David and I won in State v. Savage, No. 112,882 (Kan. App. Dec. 11, 2015)(unpublished), obtaining a suppression order in a Douglas County drug prosecution. Police had obtained a search warrant to search Mr. Savage's home based on a report from a neighbor, a trash pull, and an old conviction for drug possession. The COA held that there was insufficient evidence presented in the affidavit to support the warrant. The COA agreed with the district court that the remote conviction, by itself, was of little value in the probable cause calculus. Additionally, the non-specific report from the neighbor was not particularly probative. It also held that items found in the trash pull did not establish a sufficient contemporaneous connection to the home:

The affidavit at issue here clearly established a nexus between the garbage retrieved and the residence to be searched. The affidavit states that two trash bags were pulled from in front of Savage's home, on the same day, one yellow bag and one white bag. In the white bag were 14 pieces of mail along with two other documents addressed to Savage at the address to be searched, as well as mail addressed to two other individuals at the same address. Furthermore, an unknown quantity of marijuana mixed with coffee grounds and an opened package of Zig-Zag rolling papers were found. In addition, the trash pull was done the day before the warrant was requested, so the information was not stale. Nevertheless, we are compelled to find that the items recovered from the trash pull fail to establish a fair probability that further evidence of the crime of possession of marijuana would be found in Savage's home.

Even though the affiant requested a search warrant "to complete a more thorough investigation of possession of marijuana," a close examination of the evidence reveals that there is insufficient evidence to suggest a fair probability that marijuana would be found in Savage's house on July 2. The only evidence of criminal activity is that someone who was in the house possessed marijuana and unused rolling papers at some unknown time and subsequently discarded both. The amount of marijuana found is not delineated in the affidavit, but the fact that it was mixed with coffee grounds would suggest it was a small amount, consistent with individual use and not distribution. We do note that no partially burned or used rolling papers were found. We acknowledge that the possession of any amount of a controlled substance, even if it is not measurable or usable, is a crime in Kansas. However, the question is whether marijuana and unopened rolling papers found in a trash bag established probable cause to believe that contraband or evidence of a crime would be found in the residence. Neither party suggests that any criminal charges could be pursued merely for the marijuana found in the trash bag. It is unclear when the past use occurred, when the garbage was removed from the house or even when it was scheduled to be picked up. Even assuming weekly garbage collection, the contraband may well have been evidence of marijuana use several days prior to the examination of the garbage.

So, in totality, even giving appropriate deference to the magistrate, the COA held that the affidavit was lacking ("not even close"). Finally, the state had not argued the good-faith exception to the trial court and had not asserted any reasons for allowing that issue to be raised on appeal or the first time. As a result, the COA ordered that the evidence found during the search of Mr. Savage's home be suppressed.

[Update: the state did not file a PR and the mandate issued on January 25, 2016.]