No exigent circumstances

Kathleen Neff and William K. Rork, Wendie C. Bryan, and Kenneth B. Miller, won for co-defendants in State v. Mell, No. 98,725 (Kan. App. April 18, 2008), partially affirming Judge Sachse's suppression order in a Franklin County cultivation prosecution. The COA agreed with the state that certain evidence (observation of growing marijuana plants) was not within the curtilage of the residence in question and therefore was not subject to suppression. But the COA disagreed with the state that warrantless entry of the residence was justified under the exigent circumstances doctrine:

Turning to the nonexclusive list of factors, we note that the first factor--the gravity or violent nature of the offense--is unsupported. There was no evidence in the record that the police would have been endangered if they had not entered the residence promptly. The suspected crime was nonviolent, as the officers had merely observed marijuana plants growing in the Mells' yard. Moreover, when the officer entered the home, there was no evidence anybody else in the residence was armed or presented a danger to the officers.

Further, the second factor--whether the suspect is reasonably believed to be armed--is also unsupported. There was no evidence that Nancy or any other occupants were potentially armed or would attempt to escape the scene. Moreover, Nancy's freedom of movement had not been limited; she was not placed in handcuffs; and Howard's weapon was not drawn. These facts indicate that the situation was peaceful and under control. Although the State points out that Nancy refused to allow the officers to enter her home, the refusal by a suspect of permission to enter his or her home cannot properly be considered as a factor creating exigent circumstances.

The third factor requires a clear showing of probable cause. Nevertheless, the officer's belief that evidence of a crime was actually within the home was based on mere speculation, as he only observed marijuana plants growing in the yard and had no actual knowledge that evidence existed inside the home, as in Platten.

The fourth factor--strong reasons to believe a subject is in the premises--is unsupported by the facts. Procaccini testified that he believed persons may have been inside the residence and felt evidence could potentially be destroyed. Nevertheless, Nancy told Procaccini that no one was inside the home, and Procacinni had no independent knowledge that anybody else was inside the home. As in Cabral, Procaccini testified that he was looking for people, not evidence.

The fifth factor--a likelihood that a suspect will escape if not swiftly apprehended--is not supported. Nancy was outside her home, standing by the officers. Moreover, the officers could have easily secured the perimeter of the house while they obtained a search warrant if they believed other suspects were inside the house.

The sixth factor--the peaceful circumstances of the entry--is supported. Finally, the seventh factor--the possible loss or destruction of the evidence--is not supported based on the information known by the officers. Nothing in the information known by the officers before Procaccini's entry into the home necessarily indicated that there would be evidence of drugs in the residence. Further, there was no evidence that if Procaccini had not entered the residence immediately, evidence could have been destroyed or hidden from investigation. Moreover, exigent circumstances do not include situations where only a mere possibility exists that evidence could be destroyed or concealed.

And, after excising offending parts of the affidavit used to obtain a search warrant of the residence, the COA held that the remaining affidavit was completely insufficient to support issuance of the warrant or reliance on the warrant. As a result, the COA affirmed the suppression of evidence seized from inside the residence.

[Update: the state filed a PR on May 14, 2008.]

[Further update: the KSC denied the state's PR and the mandate issued on September 25, 2008.]