Bad search warrant

Carl F.A. Maughn won in State v. Baumfalk, No. 96,893 (Kan. App. Dec. 21, 2007)(unpublished), reversing a Sherman County drug conviction. The COA held that the evidence presented to the distirct court was clearly insufficient to constitute probable cause:

First, under the district court's theory, a nexus between the illegal activities and the suspect's residence would be established in every case so long as the suspect frequented and used his residence. Thus, the district court's conclusion that this fact could serve as a nexus was in error. Second, without additional evidence to substantiate the detective's suspicion that contraband would be found in Baumfalk's residence, the affidavit failed to provide probable cause to issue a search warrant for Baumfalk's residence. Accordingly, under these circumstances, the magistrate did not have a substantial basis to issue the search warrant for Baumfalk's residence. The district court improperly held that the search warrant for Baumfalk's residence was valid.

And the COA went on to reject any possible application of the good faith exception because the state failed to assert such an exception on appeal:

In anticipation of the State's argument on appeal, Baumfalk further asserts that the Leon good faith exception did not apply. The State, however, did not include such an argument in its brief. The Leon good faith exception, as described in United States v. Leon, 468 U.S. 897 (1984), “applies when an affidavit does not supply a substantial basis for the determination of probable cause but does provide some indicia of probable cause sufficient to render official reliance reasonable.”

However, the State's failure to make a Leon argument severely affects this court's ability to entertain whether the Leon good faith exception applies to the facts in this case. The State bears the burden of proof for a suppression motion and, thus, must prove the lawfulness of the search and seizure. Furthermore, the State's failure to pursue a Leon argument on appeal constitutes a waiver of such argument. State v. Hicks, 282 Kan. 599, 617-18, 147 P.3d 1076 (2006); State v. Landis, 37 Kan. App. 2d 409, 423, 156 P.3d 675 (2007)(ruling that the State's failure to make an argument regarding the application of the Leon good faith exception on appeal is deemed waived). Consequently, although it is probable that the Leon good faith exception would have applied to save the evidence seized under the defective search warrant, absent the State's allegation for its application, this court is forced to deem this matter waived.

It's nice to see the COA hold the state to its obligation to brief an affirmative-type defense on appeal. We often see an appellate court find something harmless, even though the state never argued that it was harmless. There are consequences when defense attorneys fail to brief (or fail to adequately brief) an issue and there should be consequences for the state as well.

BTW, there is an argument that, pursuant to Kansas statute, the good-faith exception does not apply in such situations.

[Update: the state filed a PR on January 17, 2008].

[Further update: the KSC denied the state's petition and the mandate issued on May 30, 2008.]