State v. Galentine

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NOT DESIGNATED FOR PUBLICATION

No. 116,623

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

JOHN GALENTINE,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed April 28, 2017. Affirmed.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellant.

Sam S. Kepfield, of Hutchinson, for appellee.

Before ARNOLD-BURGER, C.J., BUSER and POWELL, JJ.

Per Curiam: A few days after U.S. Marshals arrested John Galentine and his
roommate, the Buhler, Kansas, police chief entered Galentine's rental home at the
invitation of the landlord without a search warrant or Galentine's consent. Using
information gathered during that initial entry, the police chief obtained a warrant and
conducted a more thorough search of the rental house. After seizing evidence of
marijuana cultivation, the State charged Galentine with multiple drug crimes. Galentine
moved to suppress the evidence, arguing the police chief's initial entry into the rental
house violated his constitutional rights. The district court agreed and suppressed the
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evidence. The State now seeks interlocutory review of the district court's order, arguing it
erred in suppressing the evidence. Finding no error by the district court, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Another panel of our court has already decided this identical matter in State v.
Conners, No. 115,605, 2016 WL 7430331 (Kan. App. 2016) (unpublished opinion).
Darla Conners, the defendant in the prior case, and Galentine were roommates.

On January 31, 2014, U.S. Marshals, accompanied by Buhler Police Chief
William Tracy, arrested Galentine and Conners at their rental home in Buhler, a small
community near Hutchinson. The couple was to be held for subsequent extradition to
Pennsylvania.

"Within a few days, Lewayne Bartell, the rental house's owner, heard a rumor
that U.S. [Marshals] had arrested Conners and Galentine at the rental house, and on
February 3, 2014, he went to the house to determine whether anyone still lived there. On
arrival, Bartell approached the rental house's front door and knocked on it. When he did
not receive any response, he walked around the house to the backyard, where he saw a
pile of leaves, bags, and trash. At that moment, he did not know the leaves were
marijuana as Bartell did not open the trash bags or go through them. Although he
expected tenants to keep the backyard cleaner, Bartell did not find the yard's contents
unusual or a reason to call the police.

"Without obtaining permission from either Conners or Galentine, Bartell then
entered the rental house through the front door, which was unlocked. Once inside, Bartell
walked through the house and noticed it was still furnished and did not appear vacant. In
the basement, he discovered what appeared to have been a greenhouse. Bartell found
several plants, which he believed were marijuana, and paper pots where the plants had
been grown. Bartell then exited the house and returned to the backyard. This time, he
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opened one of the trash bags and found marijuana. After leaving the rental house, Bartell
phoned Tracy and asked him to come check out the flowers growing in the basement.

"When Tracy arrived, he walked around the outside of the rental house. In the
backyard, he found 10 to 15 trash bags against the back of the house. Some of the bags
were open, so he looked inside one and saw marijuana leaves. Tracy then entered the
house and went directly to the basement. There, he found lights hanging from the ceiling,
a ventilation system, pots, and several plants lying on the floor. At that point, Tracy
locked the house and left. Before leaving, Tracy moved one or two of the trash bags
containing marijuana from the backyard and set them inside the back door. He also taped
the doors with evidence tape.

"Based on this information, Tracy obtained a search warrant the next day. On the
day after that, he and two drug task force agents conducted a search of the rental house.
They seized 131 stems grown in potting media, two large black plastic bags containing
green leafy vegetation, 1000-watt light bulb boxes, a power vent connected to the
chimney, clonnex rooting compound, calendars with days marked on them, and mailing
address labels showing Galentine resided at the rental house." Conners, 2016 WL
7430331, at *1-2.

The State subsequently charged Galentine with cultivation of marijuana and
possession of drug paraphernalia with intent to distribute a controlled substance for sale.
Galentine moved to suppress the evidence seized from the rental house, arguing Tracy
conducted an illegal search in violation of his constitutional rights. He contended Bartell
lacked authority to consent to Tracy's warrantless entry into the home and further argued
Bartell lacked authority to enter the home and was acting as a government agent.
Galentine also asserted that no exception to the exclusionary rule supported the admission
of the evidence.

The district court held a suppression hearing where the State offered the testimony
of Bartell and Tracy. Galentine did not present any evidence, but the parties stipulated to
the testimony that was previously given at the hearing on Conners' motion to suppress.
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"Bartell explained he had been a landlord for 20 years and owned 14 properties
in Buhler. He recalled Conners and Galentine began renting the house in June 2013 and
described them as always very timely in paying their monthly rent. Bartell stated he left
the doors unlocked after leaving the rental house and testified that he did not escort Tracy
through the house. Bartell claimed he specifically told Tracy about the trash bags
containing marijuana in the backyard. He also testified he told Tracy that somebody
should come down there and take a look because there was stuff there they probably
needed to see.

"Tracy testified he had been in law enforcement for 27 years. He explained that
when executing the arrest warrants for Conners and Galentine, he and a U.S. Marshal
entered the rental house through the front door while two other U.S. Marshals went to the
back of the rental house. Tracy stated the U.S. Marshals did not alert him that bags of
marijuana were in the house's backyard. Tracy further stated that at the time he entered
the house and stood in its kitchen, he did not observe anything odd in the house.

"Tracy also testified that Bartell was present during his initial entry into the rental
house. According to Tracy, they entered the house through the front door, using a key to
unlock it. Before arriving at the rental house, Tracy did not suspect any illegal activity,
and the trash bags containing marijuana were not visible from the house's front side.
Tracy claimed Bartell did not tell him marijuana was present at the house, and he
admitted that although he knew [Galentine] lived at the rental house, he did not obtain
[Galentine's] consent before entering.

"At the conclusion of evidence, the State argued suppression of the evidence was
improper because Bartell had authority to consent to Tracy's entry into the rental house
and because the evidence of marijuana cultivation was in plain view. Alternatively, the
State asserted [Galentine] did not have a reasonable expectation of privacy in the house
as a result of [his and Conners'] failure to timely pay February rent.

"Conversely, [Galentine] maintained [he] had a reasonable expectation of privacy
in the curtilage adjacent to the rental house, highlighting Tracy's testimony that he was
unable to see any contraband from the public roadway and only observed it on entry to
the backyard. Furthermore, [he] argued Bartell did not have authority to consent to
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Tracy's entry into the backyard or house and that no exigent circumstances existed to
otherwise justify Tracy's warrantless entry." Conners, 2016 WL 7430331, at *2-3.

As it did in Conners' case, the district court granted Galentine's motion to
suppress. In its written order, the district court made several factual findings, including:

 Galentine was current on rent.
 The rental home did not appear to have been abandoned and contained
furnishings.
 Tracy had assisted the federal authorities in the arrest of Galentine and
Conners.
 Bartell observed plants in the basement of the home and contacted Tracy
and "told Tracy that he had observed flowers growing in the basement and
a trash bag in the back yard that contained what he thought was marijuana."
 Tracy entered the home through an unlocked door and went through the
home, including the basement.

Based on its factual findings, the district court concluded that Bartell, as the
landlord, lacked both actual and apparent authority to consent to a search of the rental
house. It concluded that Tracy had conducted a warrantless search of Galentine's home
and the State had failed to demonstrate a valid exception to the warrant requirement.

The State timely appeals the district court's suppression order.

DID THE DISTRICT COURT ERR IN GRANTING GALENTINE'S MOTION TO SUPPRESS?

In this interlocutory appeal, the sole issue is whether the district court erred in
granting Galentine's motion to suppress. When reviewing a district court's ruling on a
motion to suppress, we apply a bifurcated standard of review. First, without reweighing
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the evidence, we assess whether the district court's factual findings are supported by
substantial competent evidence; then, we examine the district court's ultimate legal
conclusions drawn from those facts, employing de novo review. State v. Neighbors, 299
Kan. 234, 240, 328 P.3d 1081 (2014) (quoting State v. Karson, 297 Kan. 634, 639, 304
P.3d 317 [2013]). "The State bears the burden to demonstrate a challenged search was
lawful." State v. Pettay, 299 Kan. 763, 768, 326 P.3d 1039 (2014).

The State makes two principal arguments in opposition to the district court's
suppression order. First, the State asserts that Galentine did not have a reasonable
expectation of privacy in the rental house, meaning he lacks standing to challenge a
search of the house. Second, even if Galentine has standing to challenge the search, the
State contends the district court erred in applying the exclusionary rule to suppress the
evidence because (1) law enforcement acted in good faith by merely responding to a
request by the landlord and property owner to search the premises, (2) any evidence
uncovered illegally at the time inevitably would have been discovered as the landlord and
owner would have been lawfully entitled to enter the premises in a few days, and (3) the
private search doctrine permitted the search of the home. We will examine the State's
arguments in order.

A. Did Galentine have standing to challenge Tracy's warrantless entry into the rental
house?

The State contends that Galentine did not have a reasonable expectation of privacy
in the rental house and raises a question of whether he has proper standing to challenge
law enforcement's initial entry into the rental home. The panel in Conners addressed this
exact issue.

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"A criminal defendant must have standing to challenge a search or seizure, and the
burden is on the defendant to show an expectation of privacy in the property searched.
State v. Talkington, 301 Kan. 453, 476, 345 P.3d 258 (2015).

"The Kansas Supreme Court has explained that the courts have used the
reasonable expectations test, as articulated in Katz v. United States, 389 U.S. 347, 361, 88
S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring), to determine whether a
defendant has standing to challenge a search or seizure. Talkington, 301 Kan. at 461-62.
'[A] search . . . occurs under the Fourth Amendment when: (1) the government obtains
information by physically intruding on a constitutionally protected area, i.e., persons,
houses, papers, or effects, [citation omitted]; or (2) invades "'a subjective expectation of
privacy that society recognizes as reasonable.'"' 301 Kan. at 462. '[T]he United States
Supreme Court [has subsequently] clarified that a traditional property rights baseline
should be applied to Fourth Amendment cases as well.' 301 Kan. at 462; see Florida v.
Jardines, 569 U.S. ___, 133 S. Ct. 1409, 1417, 185 L. Ed. 2d 495 (2013).

"As the resident of a dwelling that is akin to a traditional home, a tenant
possesses a reasonable expectation of privacy throughout the interior of a leased single-
family house. See Payton v. New York, 445 U.S. 573, 590, 100 S. Ct. 1371, 63 L. Ed. 2d
639 (1980) ('[T]he Fourth Amendment has drawn a firm line at the entrance to the
house.'). Further, the area '"immediately surrounding and associated with the home"' is
the curtilage and is considered '"part of the home itself for Fourth Amendment
purposes."' Jardines, 133 S. Ct. at 1414 (quoting Oliver v. United States, 466 U.S. 170,
180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 [1984]). 'It harbors the intimate activity associated
with the sanctity of a person's home and the privacies of life.' State v. Fisher, 283 Kan.
272, Syl. ¶ 1, 154 P.3d 455 (2007).

"The State does not contend that Conners, under normal circumstances, did not
have a reasonable expectation of privacy in the rental house and its curtilage. Rather, the
State's argument is that because Conners and Galentine had not paid rent for the month of
February at the time of Tracy's initial entry and were incarcerated, Conners had a
diminished expectation of privacy in the rental house. We disagree.

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"Contrary to the State's argument, a reasonable person could have concluded
based on the evidence that Conners was current on rent. At the suppression hearing,
Bartell initially testified that Conners and Galentines' lease agreement required them to
pay rent by the first of each month. Bartell then discussed their payment history, which
showed they paid rent between the 5th and 9th of each month. Despite the express
language of the lease agreement, Bartell considered their payments timely. Although
Conners and Galentine had not paid February's rent when Tracy initially entered the
rental house on February 3, they were not yet untimely in paying.

"Moreover, there is insufficient evidence to support the proposition that Bartell
had retaken possession of the property. There is no evidence in the record that indicates
Bartell had initiated any eviction proceedings or otherwise demonstrated an intention to
retake possession of the rental property. Also, as Conners' counsel pointed out to the
district court, Kansas' landlord-tenant act only considers a tenancy abandoned once the
tenant has been in default for nonpayment of rent for 10 days and has removed a
substantial portion of his or her belongings. See K.S.A. 58-2565(b). Bartell testified at the
suppression hearing that the rental house was not vacant and Conners had not been in
default for nonpayment of rent for 10 days at the time Tracy entered the home. Therefore,
substantial competent evidence supports the district court's factual finding that Conners
was still current on rent and had not yet abandoned the property.

"Having determined that substantial competent evidence supports a finding that
Conners was a current tenant of the rental house, it becomes clear that she had a
reasonable expectation of privacy in the rental house. See Pennsylvania v. Strickland, 457
Pa. 631, 637, 326 A.2d 379 (1974) (finding defendant's absence due to arrest and
incarceration is not 'a sufficient basis upon which to conclude that the accused has
abandoned any reasonable expectation of privacy in his home'). Thus, Conners had
standing to challenge Tracy's initial entry and search of the rental house." 2016 WL
7430331, at *3-4.

We agree with this reasoning and hold that substantial competent evidence
supports a finding that Galentine was a current tenant of the rental house and, thus, had a
reasonable expectation of privacy in the rental house. See Pennsylvania v. Strickland, 457
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Pa. 631, 637, 326 A.2d 379 (1974) (finding defendant's absence due to arrest and
incarceration is not "a sufficient basis upon which to conclude that the accused has
abandoned any reasonable expectation of privacy in his home"). Therefore, Galentine had
standing to challenge Tracy's initial entry and search of the rental home.

B. Did the district court properly apply the exclusionary rule?

Next the State argues that the district court should not have applied the
exclusionary rule. Specifically, the State argues that two exceptions to the exclusionary
rule―good faith and inevitable discovery―are applicable here. The State also argues that
the private search doctrine allows for the admission of the evidence.

1. Good Faith

The exclusionary rule is "a judicially created remedy [which] exists to prevent the
use of unconstitutionally obtained evidence in a criminal proceeding against the victim of
the illegal search" and is to deter law enforcement from violating a person's constitutional
rights. State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 563 U.S.
945 (2011). Because the exclusionary rule's primary purpose is deterrence, the law
recognizes two exceptions to the rule based on a law enforcement officer's good-faith
conduct.

First, the exclusionary rule should not be applied to "bar the use of 'evidence
obtained by officers acting in reasonable reliance on a search warrant issued by a
detached and neutral magistrate but ultimately found to be unsupported by probable
cause.'" State v. Powell, 299 Kan. 690, 700, 325 P.3d 1162 (2014) (quoting United States
v. Leon, 468 U.S. 897, 900, 104 S. Ct. 3405, 82 L. Ed. 2d 677, reh. denied 468 U.S. 1250
(1984). Second, the exclusionary rule should not be applied to bar the use of evidence
obtained by officers acting in reasonable reliance on a statute which is later found to be
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unconstitutional. See Daniel, 291 Kan. at 498. Facially, the State's argument appears
faulty because Tracy did not rely on a search warrant or any specific statute when
initially entering Galentine's rental home.

The State's real argument appears to be that Tracy, in good faith, relied upon
Bartell's request that he come look inside the home because Bartell had the apparent
authority to authorize a search. Typically, "[a] landlord may not validly consent to a
search of a tenant's residence." State v. Loftin, 276 S.C. 48, 50, 275 S.E.2d 575 (1981).
However, Kansas has adopted the "'apparent authority' rule, which makes valid a consent
to search when the facts available to an officer would warrant a person of reasonable
caution to believe the consenting party had authority over the premises to be searched."
State v. Ratley, 16 Kan. App. 2d 589, 595, 827 P.2d 78 (1992).

The district court found that Tracy knew Galentine had been arrested only 3 days
before Bartell called him and that Tracy, who had the same opportunity as Bartell to
observe all the furniture still in the house, would have been able to see that the rental
home clearly was still occupied by Galentine. Moreover, the district court indicated that
Tracy offered no explanation why he thought he had the right to search the premises
without a warrant. Based on the district court's findings, we hold a reasonable person
would not have concluded that Bartell had the apparent authority to authorize a search.

2. Inevitable Discovery

The State also asserts that the exclusionary rule should not have been invoked
because the evidence would have been inevitably discovered. The panel in Conners
addressed the issue of inevitable discovery.

"As a final point, the State contends law enforcement would have inevitably
discovered the evidence suppressed by the district court. The State argues Conners would
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have relinquished any privacy right in the rental house within 1 week of Tracy's initial
entry, at which point the evidence still would have been inside the house, and law
enforcement would have lawfully seized it, presumably by entering with Bartell's
consent.

"If the prosecution can establish by a preponderance of the evidence that
otherwise unlawfully obtained evidence ultimately or inevitably would have been
discovered by lawful means, the evidence is admissible under the inevitable discovery
doctrine. Nix v. Williams, 467 U.S. 431, 444-47, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984)
(adopting doctrine in context of Sixth Amendment violation and noting comparable
considerations in applying inevitable discovery to Fourth Amendment violations); State
v. Ingram, 279 Kan. 745, 750, 113 P.3d 228 (2005) (doctrine applied to Fourth
Amendment violation). The State has the burden to 'demonstrate ultimate admissibility.'
State v. Stowell, 286 Kan. 163, 166, 182 P.3d 1214 (2008). Importantly, 'inevitable
discovery involves no speculative elements but focuses on demonstrated historical facts
capable of ready verification or impeachment.' Nix, 467 U.S. at 444 n.5. '[T]he inevitable
discovery exception does not invite speculation about the possible series of events under
which the evidence may have been discovered, but requires an affirmative showing of a
reasonable probability that the evidence would inevitably be discovered through lawful
means already initiated when the seizure was made.' State v. Mollett, No. 97,999, 2008
WL 3852167, at *12 (Kan. App. 2008) (unpublished opinion), rev. denied 287 Kan. 768
(2009).

"Conners contends the State failed to meet its burden to establish that the
evidence would have been inevitably discovered, regardless of the illegal search. She
highlights that no evidence showed the seized evidence would have remained in the
residence after her arrest, asserting that she could have had others remove the evidence
from the house after her arrest. Conners also concludes that the State's argument that the
police would have inevitably discovered the evidence through lawful means is a mere
supposition.

"As already established, substantial competent evidence supports the district
court's factual finding that Conners was current on rent. Thus, a conclusion that Conners
had relinquished any privacy right in the rental house is contrary to the evidence and
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would require us to engage in improper reweighing of the evidence. See Neighbors, 299
Kan. at 240. Substantial competent evidence also supports the district court's factual
finding that Bartell told Tracy only that flowers were growing in the basement. Without
further information of illegal activity, any application for a search warrant would have
been denied for lacking probable cause. In light of the district court's factual findings, it
appears the State failed to present evidence to support application of the inevitable
discovery exception. The district court did not err in granting Conners' motion to
suppress." Conners, No. 115,605, 2016 WL 7430331, at *5.

Here, the State relies on a portion of K.S.A. 58-2557, part of the Kansas
residential landlord and tenant act (K.S.A. 58-2540 et seq.), in support of its argument
that the evidence would have been inevitably discovered because Bartell, as the landlord,
had the right to enter without Galentine's consent. The relevant sections of K.S.A. 58-
2557 state:

"(a) The landlord shall have the right to enter the dwelling unit at reasonable
hours, after reasonable notice to the tenant, in order to inspect the premises, make
necessary or agreed repairs, decorations, alterations or improvements, supply necessary
or agreed services, or exhibit the dwelling unit to prospective or actual purchasers,
mortgagees, tenants, workmen or contractors.

"(b) The landlord may enter the dwelling unit without consent of the tenant in
case of an extreme hazard involving the potential loss of life or severe property damage."

At the hearing Bartell testified that he would have had to enter the home at some
point because "[y]ou didn't know whether there was pets in there or whether the house
had water running in it or, you know, you just didn't know." We are unpersuaded by this
argument because there is no evidence that any extreme hazard existed to warrant
Bartell's entry into the house. See State v. Foster, No. 113,883, 2016 WL 4500953, at *5
(Kan. App. 2016) (unpublished opinion) (holding without evidence of extreme hazard
K.S.A. 58-2557 does not give landlord authority to enter tenant's space), petition for rev.
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filed September 26, 2016. In Galentine's case, like in Foster, it is merely hypothetical that
there was an extreme hazard. Without Bartell having actual knowledge of any extreme
hazard, he is not authorized to just enter the rental house without first giving notice to the
tenants as prescribed in K.S.A. 58-2557(a). The State did not meet its burden to show that
the evidence would have been inevitably discovered; therefore, the district court did not
err in applying the exclusionary rule.

3. Private Search Doctrine

Finally, the State argues that Tracy's search did not exceed the scope of Bartell's
search and, therefore, under the private search doctrine, the evidence should not have
been suppressed. In support of this argument, the State cites two federal cases: United
States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015), and United States v. Sparks, 806
F.3d 1323 (11th Cir. 2015).

The United States Supreme Court articulated the private search doctrine in United
States v. Jacobsen, 466 U.S. 109, 124-26, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984), a case
that involved the private search of a package first by Federal Express employees and then
by federal agents. In that case, the Court stated that an initial search conducted by a
private individual did not constitute a search that implicated the Fourth Amendment. 466
U.S. at 115. But the Court also held that once information obtained by a private search is
turned over to law enforcement, law enforcement may not exceed the scope of the search
"occasioned by private action" because an individual has a reasonable expectation of
privacy in an area not open to a private search. 466 U.S. at 115-18. Here, the two cases
relied upon by the State involve, like Jacobsen, a private individual's search of another's
personal property. See Lichtenberger, 786 F.3d at 479 (evidence suppressed because
scope of police search of laptop computer exceeded scope of private search); Sparks, 806
F.3d at 1329 (evidence from private search of cellphone not suppressed because
defendant abandoned phone).
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However, "when it comes to the Fourth Amendment, the home is first among
equals. At the Amendment's 'very core' stands 'the right of a man to retreat into his own
home and there be free from unreasonable governmental intrusion.'" Florida v. Jardines,
569 U.S. ___, 133 S. Ct. 1409, 1414, 185 L. Ed. 2d 495 (2013) (quoting Silverman v.
United States, 365 U.S. 505, 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 [1961]). Because of the
heightened expectation of privacy one possesses in his or her home, the private search
doctrine is inapplicable to the search of a private residence. See United States v.
Martinez-Fuerte, 428 U.S. 543, 561, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976) ("[T]he
sanctity of private dwellings [is] ordinarily afforded the most stringent Fourth
Amendment protection."); State v. Reno, 260 Kan. 117, 128, 918 P.2d 1235 (1996)
(quoting State v. Platten, 225 Kan. 764, 769, 594 P.2d 201 [1979]) ("'The Fourth
Amendment protects a citizen's reasonable expectations of privacy and one's reasonable
expectation of privacy in the home is entitled to unique sensitivity.'"); see also United
States v. Williams, 354 F.3d 497, 510 (6th Cir. 2003) (holding private search doctrine not
justified where landlord concerned about water leak entered rental unit, became
suspicious of criminal activity, and called authorities, who walked through property with
landlord and found marijuana); United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997)
("Jacobsen, which measured the scope of a private search of a mail package, the entire
contents of which were obvious, is distinguishable on its facts; this Court is unwilling to
extend the holding in Jacobsen to cases involving private searches of residences.").

In the present case, Bartell's search, followed by Tracy's initial warrantless search,
was not of a package, cellphone, or laptop, but of Galentine's home, making the private
search doctrine inapplicable. The evidence derived from the search of Galentine's rental
home was properly suppressed by the district court.

Affirmed.