State v. Campbell

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,860

STATE OF KANSAS,
Appellee,

v.

JAMES E. CAMPBELL, JR.,
Appellant.


SYLLABUS BY THE COURT

1.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas
Constitution Bill of Rights prohibit a warrantless and nonconsensual entry into a home
absent a recognized exception to the warrant requirement, one of which is the exigent
circumstances exception.

2.
An officer can rely on the exigent circumstances exception when the officer has an
objectively reasonable belief that an emergency situation exists; one such situation is
when an officer's safety is threatened.

3.
In applying the exigent circumstances exception to the warrant requirement for a
dwelling search, if an officer can articulate how the presence of a weapon affected the
officer's safety, this court has interpreted the Fourth Amendment to the United States
Constitution to allow a warrantless entry into a person's home based upon officer safety
concerns.

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4.
Officers cannot rely on the exigency exception to the search warrant requirement
of the Fourth Amendment to the United States Constitution when the officers' conduct
preceding the exigency is unreasonable. If the police create the exigency by engaging or
threatening to engage in conduct that violates the Fourth Amendment, warrantless entry
is unreasonable.

5.
The Fourth Amendment to the United States Constitution permits knock and talk
encounters because they are voluntary consensual encounters. In conducting a knock and
talk, an officer can approach a citizen's door and act as any private citizen would.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 4, 2010.
Appeal from Riley District Court; MERYL D. WILSON, judge. Opinion filed May 3, 2013. Judgment of the
Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and
remanded.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the briefs
for appellant.

Bethany C. Fields, deputy county attorney, argued the cause, and Kevin W. Martin, legal intern,
Barry Wilkerson, county attorney, Steve Six, former attorney general, and Derek Schmidt, attorney
general, were with her on the briefs for appellee.

The opinion of the court was delivered by

MORITZ, J.: We granted James Campbell's petition for review to consider whether
the Court of Appeals properly affirmed the district court's denial of his motion to
suppress. In his direct appeal, Campbell contended that a police officer's warrantless and
forced entry into his apartment was not justified by exigent circumstances; thus, the entry
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and subsequent seizure of evidence in plain view violated Campbell's Fourth Amendment
rights. Specifically, Campbell argued the forced entry was unjustified because (1)
although the officer claimed he appropriately used force to enter the apartment because
Campbell answered the door carrying a gun, Campbell was not carrying a gun and thus
no exigency arose; and (2) even if he was carrying a gun, he was legally permitted to do
so, and the exigency exception did not apply because the officer created the exigency by
covering the peephole of the door and positioning himself to mask his presence. While
the Court of Appeals found the evidence substantiated the officer's claim that Campbell
carried a gun when he opened the door, threatening the officer's safety, it inexplicably
found that Campbell had not argued that the officer created the exigency. Therefore, the
panel refused to consider this issue and affirmed the district court's ruling that the plain
view exception justified the seizure. State v. Campbell, No. 101,860, 2010 WL 2348692
(Kan. App. 2011) (unpublished opinion).

Our review of the record reveals that Campbell clearly argued to the district court
and to the Court of Appeals that the police officer's actions created the "exigency," which
the officer then used to justify his use of force and warrantless entry to the apartment.
Further, we conclude the exigent circumstances exception does not apply in light of the
officer's unreasonable actions in creating the exigency.

Because the officer's actions preceding the exigency were unreasonable and in
violation of the Fourth Amendment, we reverse both the district court's decision denying
Campbell's motion to suppress and the Court of Appeals' decision affirming that decision,
and we remand to the district court for further proceedings.

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FACTUAL AND PROCEDURAL BACKGROUND

The State charged Campbell with one count of possession of marijuana with intent
to sell, one count of possession of cocaine, one count of misdemeanor possession of
marijuana, two counts of possession of drug paraphernalia, one count of criminal
possession of a firearm, and two counts of possession of a controlled substance without a
tax stamp. After Campbell moved to suppress the evidence supporting those charges, the
district court conducted an evidentiary hearing on the motion. We have summarized
below the hearing testimony of Riley County Police Officer Thomas Nible.

Nible testified that the charges arose out of his investigation of a noise complaint
regarding a car owned by Campbell. After he located the car in Campbell's apartment
parking lot, he decided to speak with Campbell about the complaint. Campbell's
apartment was on the third floor, with an exterior, walk-up entrance.

As the officer approached Campbell's apartment, he smelled burning or burnt
marijuana and heard at least two male voices coming from an open window in the
apartment. Nible wanted to investigate the marijuana smell by looking inside the
apartment, but he knew he lacked authority to enter. Instead, in an effort to ensure the
occupants would open the door, Nible positioned himself next to the door and covered
the peephole with his left hand. Nible described his actions as follows: "I kind of bladed
myself sideways with my weapon, kept my weapon away from the door, left side of my
body towards the door, I stepped kind of back away from the windows, kept myself out
of view, and knocked on the door."

Nible explained that by "blading" himself against the door, he assumed a
protective posture, and it "turned out" that it also placed him in a position so he could use
his shoulder to force the door open.
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Campbell opened the door about a third of the way and looked around it. Nible
could only see Campbell's head and face and a silver handgun about waist high. Nible
explained that the handgun "wasn't pointed at me in the means that [Campbell was] trying
to shoot me at that time and that moment." Rather, it was simply pointed in Nible's
general direction. Nible stated Campbell "looked surprised" when he saw Nible and tried
to shut the door.

According to Nible, he had been trained to either confront a handgun or retreat to
initiate a different plan from a safer position. Nible felt he had no option to retreat toward
the stairs because he would have to pass in front of the apartment's window. Concluding
he was in an unsafe position regardless of whether he retreated or confronted the
handgun, Nible decided to force his way into the residence. Nible's supervisor, who
arrived after Nible called for backup, testified that Nible was adamant he saw a weapon.
However, his supervisor noted that due to Nible's military training he "thinks things
through a little bit differently and [is] maybe a little more assertive or aggressive."

Nible testified he hit the door hard and opened it with two shoves, drawing his
weapon as he did so. Once inside, he saw a couch positioned to the right of the doorway
and another couch in front of the door. As Nible entered the apartment, Campbell was
positioned "partially over" the couch in front of the doorway. Nible surmised that
Campbell's location "could be" consistent with the officer knocking Campbell over the
couch when he forced open the door.

After securing Campbell, Nible secured the other two men in the room and
requested the weapon. All three men denied having a weapon, and Campbell claimed to
have had a bandana in his hand, not a weapon. Nible "looked around the general area" but
did not see a weapon.
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Nible called for backup and explained to the occupants of the apartment that he
had been investigating a noise complaint. From Nible's position in the doorway, he had a
clear view into the kitchen where he saw a large, glass marijuana bong and a leafy, green
substance on the counter.

Once backup arrived, Nible sought Campbell's written permission to search the
apartment. Campbell refused to give written permission but did give verbal consent.
Nible found a handgun under a cushion in the couch "furthest away from [Campbell], the
couch closest by the side of the door."

The State charged Campbell with one count of possession of marijuana with intent
to sell, one count of possession of cocaine, one count of misdemeanor possession of
marijuana, two counts of possession of drug paraphernalia, one count of criminal
possession of a firearm, and two counts of possession of a controlled substance without a
tax stamp.

Motion to Suppress

Campbell filed a motion to suppress the gun and evidence found in his apartment.
Initially, he argued the smell of burning marijuana did not provide exigent circumstances
justifying the warrantless entry. See State v. Huff, 278 Kan. 214, Syl. ¶ 7, 92 P.3d 604
(2004). Further, Campbell argued the State failed to establish exigent circumstances
based on officer safety because the officer admitted that Campbell had attempted to close
the apartment door and Campbell disputed he had a gun. Additionally, Campbell argued
that even if he did answer the door with a gun, he did not violate any law by doing so.
Campbell further asserted that one of the factors used to determine whether exigent
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circumstances exist—whether the suspect is reasonably believed to be armed—was not
met.

In the alternative, Campbell argued that even if the district court found exigent
circumstances based on officer safety, the exigent circumstances exception did not apply
here because Nible created the safety risk and the exigency by covering the door's
peephole and hiding himself from the view of the occupants. He argued that because no
other exception to the warrant requirement applied, the officer was not lawfully in the
apartment; therefore, any evidence discovered in plain view must be suppressed.
Likewise, Campbell argued the gun must be suppressed because the unlawful entry
tainted his consent to search.

The district court rejected Campbell's exigency argument, concluding Nible's
decision to enter the apartment to neutralize the immediate danger was lawful. Having
concluded the officer lawfully entered Campbell's apartment based on exigent
circumstances, the district court found that the plain view exception as well as Campbell's
consent justified seizure of the items found in the apartment, and the court denied
Campbell's motion to suppress.

Following a bench trial, the district court convicted Campbell of all of the charges
except misdemeanor marijuana possession and ordered concurrent sentences totaling 37
months' imprisonment.

On direct appeal, a panel of the Court of Appeals affirmed Campbell's conviction
and sentence. Although the panel specifically cited the district court's ruling rejecting
Campbell's challenge to the entry into his apartment as unjustified based on exigent
circumstances, the panel inexplicably held that Campbell had failed to challenge the
exigency exception to the district court and that the district court had not considered any
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exigency arguments when ruling on the motion to suppress. And because Campbell had
not challenged the district court's plain view determination in his direct appeal, the panel
affirmed Campbell's conviction on plain view grounds.

Campbell petitioned this court for review, arguing the Court of Appeals erred in
finding he failed to preserve his claim that the officer created the exigent circumstances.
This court granted review and has jurisdiction under K.S.A. 20-3018(b) (review of Court
of Appeals decision).

ANALYSIS

In his petition for review, Campbell argues the district court erred in failing to
suppress the evidence discovered in his apartment because Officer Nible created the
exigent circumstances by positioning himself in the doorway and covering the peephole
so as to prevent an occupant of the apartment from seeing who was at the door. Campbell
reasons that because Nible unlawfully entered his home, the plain view exception did not
apply and Campbell's consent to search was invalid. But we cannot reach that argument
until we consider whether the Court of Appeals correctly held Campbell failed to
preserve the argument.

Preservation

We can dispose of this issue in short order as the panel simply erred in concluding
Campbell did not challenge the existence of exigent circumstances below. In the district
court, Campbell argued that the smell of marijuana did not create an exigency and that his
appearance at the door with a gun did not create an exigency as Nible admitted Campbell
had attempted to close the door. Further, Campbell asserted Nible lacked a reasonable
belief that Campbell was armed based on where the gun was discovered. Additionally,
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Campbell argued that because Nible created the exigency by his actions, the exigency
exception to the warrant requirement did not apply.

The panel also clearly erred in finding that the district court did not address the
exigency exception. In fact, the district court specifically addressed Campbell's exigency
argument, finding: "[T]he Court's ruling will be [Campbell] had the right to neutralize
the threat to his safety." Based on this ruling, the district court then discussed the plain
view exception and consent, ultimately denying the suppression motion on these grounds.

It appears the panel failed to discern that before the district court could even
consider the plain view exception or the validity of Campbell's consent, it first had to find
that Nible lawfully entered the residence. Because the district court made that preliminary
ruling and Campbell specifically appealed that determination to the Court of Appeals, we
conclude the panel erred in finding Campbell failed to raise this issue.

Standard of review

"'The factual underpinnings of a decision on a motion to suppress are reviewed
for substantial competent evidence and the ultimate legal conclusion drawn from those
facts reviewed de novo.' [Citations omitted.] This court does not reweigh evidence, assess
the credibility of witnesses, or resolve conflicts in evidence. [Citation omitted.] It is the
State's burden to demonstrate that a challenged seizure or search was lawful, [citations
omitted], as long as the defendant had a legitimate expectation of privacy protected by
the Fourth Amendment. [Citations omitted.]'" State v. Johnson, 293 Kan. 959, 963, 270
P.3d 1135 (2012).

Police-Created Exigency Doctrine

The Fourth Amendment and § 15 of the Kansas Constitution Bill of Rights
prohibit a warrantless and nonconsensual entry into a home absent a recognized
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exception to the warrant requirement, one of which is the exigent circumstances
exception. See State v. Thomas, 280 Kan. 526, 530-31, 124 P.3d 49 (2005) (citing Payton
v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 [1980]); see also State
v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010) ("We interpret Section 15 of the
Kansas Constitution Bill of Rights to provide the same protection from unlawful
government searches and seizures as the Fourth Amendment to the federal constitution."),
cert. denied 131 S. Ct. 2114 (2011).

An officer can rely on the exigent circumstances exception when the officer has an
objectively reasonable belief that an emergency situation exists; one such situation is
when an officer's safety is threatened. State v. Shively, 268 Kan. 589, 595, 999 P.2d 259
(2000). If an officer can articulate how the presence of a weapon affected the officer's
safety, this court has interpreted the Fourth Amendment to allow a warrantless entry into
a person's home based upon officer safety concerns. See 268 Kan. 589, Syl. ¶ 4. While
Campbell again challenges on appeal the legal sufficiency of the officer's exigency
determination, we need not reach that issue because we conclude that even if an exigency
occurred, the evidence must be suppressed because Nible acted unreasonably in creating
the exigency.

After this court granted Campbell's request for review, the United States Supreme
Court addressed the issue of a police-created exigency in Kentucky v. King, 563 U.S. __,
131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011). Before King, numerous federal circuit courts
and several state courts carved out an exception to the exigent circumstances exception to
the warrant requirement, called the "'police-created exigency'" doctrine. Courts have
developed a variety of tests to determine when to apply the doctrine, and they have
generally concluded police may not rely on an exigent circumstance, such as the
destruction of evidence, when police conduct "'created'" or "'manufactured'" that
exigency. 131 S. Ct. at 1857.
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In his appeal brief and petition for review, Campbell cites United States v.
Richard, 994 F.2d 244, 249 (5th Cir. 1993), to support his argument that Officer Nible
created the exigency in this case, rendering his entry into Campbell's home unlawful. In
Richard, the Fifth Circuit Court of Appeals distinguished "'between cases where exigent
circumstances arise naturally during a delay in obtaining a warrant and those where
officers have deliberately created the exigent circumstances.'" 994 F.2d at 248. The
Richard court concluded that when officers deliberately create the exigency, the evidence
is inadmissible. The United States Supreme Court, however, adopted a different test in
King.

There, the police arranged a controlled drug buy outside an apartment complex.
After the deal was completed, the officers quickly moved in on the suspect as he walked
toward the apartment building's breezeway. As they did so, they heard an apartment door
shut, but they could not determine which apartment the suspect had entered. Detecting a
strong marijuana odor emanating from the apartment door to the left, the officers
approached that apartment and banged on the door "as loud as [they] could," while
announcing their identity as police. King, 131 S. Ct. at 1863. In response, the officers
heard movement inside, which led the officers to believe that the occupants of the
apartment were about to destroy drug-related evidence. Consequently, the officers
announced their intent to enter the apartment and then kicked in the door. During a
protective sweep, the officers saw drugs in plain view. But as it turns out, the officers had
focused on the wrong apartment and their suspected drug dealer was later located in the
apartment on the right. The state court suppressed the evidence under the police-created
exigency doctrine, and the Supreme Court granted certiorari. 131 S. Ct. at 1854-55.

In deciding King, the Court assumed for the purposes of argument that the facts
demonstrated exigent circumstances, and defined the question before it as: "Under what
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circumstances do police impermissibly create an exigency?" 131 S. Ct. at 1862-63. An 8-
1 majority of the Court held "the exigent circumstances rule applies when the police do
not gain entry to premises by means of an actual or threatened violation of the Fourth
Amendment." 131 S. Ct. at 1862; see United States v. Hendrix, 664 F.3d 1334 (10th Cir.
2011) (applying King to uphold a warrantless motel entry because officers did not violate
Fourth Amendment).

Relying on well-established Fourth Amendment jurisprudence, the Supreme Court
in King rejected tests that relied on the subjective intent of the officer, whether the tactics
created a reasonably foreseeable exigency, and whether the conduct would lead a person
to believe that entry was imminent.

In a more detailed holding the Court stated:

"Despite the welter of tests devised by the lower courts, the answer to the
question presented in this case follows directly and clearly from the principle that permits
warrantless searches in the first place. As previously noted, warrantless searches are
allowed when the circumstances make it reasonable, within the meaning of the Fourth
Amendment, to dispense with the warrant requirement. Therefore, the answer to the
question before us is that the exigent circumstances rule justifies a warrantless search
when the conduct of the police preceding the exigency is reasonable in the same sense.
Where, as here, the police did not create the exigency by engaging or threatening to
engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the
destruction of evidence is reasonable and thus allowed." 131 S. Ct. at 1857-58.

Notably, in adopting a test that considers whether officers' actions preceding the
exigency were reasonable, and thus whether the Fourth Amendment was violated, the
Supreme Court reiterated that officers conducting a "knock and talk" are "encouraged" to
identify themselves, as in many circumstances their presence will be reassuring rather
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than discomforting. 131 S. Ct. at 1861. The Court further noted that occupants "may
appreciate the opportunity to make an informed decision about whether to answer the
door." 131 S. Ct. at 1861. Ultimately, the Court rejected the defendant's argument that the
officers' actions were unreasonable.

In contrast to the officers in King, the officer here did not mistakenly approach the
defendant's apartment door. Nor did the officer here announce his presence or give the
occupants any opportunity to make an "informed" decision whether to open the door. See
131 S. Ct. at 1861. In considering the circumstances of this case, we are mindful that the
Fourth Amendment permits knock and talk encounters because they are voluntary
consensual encounters. See Annot., 15 A.L.R.6th 515 (stating that a knock and talk is a
legitimate tactic used by officers lacking reasonable suspicion, and the Fourth
Amendment is not implicated simply because "a police officer, just as any other citizen,
is free to walk up to the door of a home and a knock on the door").

Recently, in discussing whether a dog sniff at the front door of the defendant's
home was consistent with the Fourth Amendment, the United States Supreme Court
commented on the scope of an officer's permissible actions when approaching a front
door, stating, "[t]he knocker on the front door is treated as an invitation or license to
attempt an entry." Florida v. Jardines, No. 11-564, 2013 WL 1196577, at *4, 569 U.S.
__, __ S. Ct. __, __ L. Ed. 2d __ (March 26, 2013). The invitation or license extended to
"solicitors, hawkers and peddlers" also extends to law enforcement officers, who are
accordingly permitted to do as any "'private citizen'" might do." 2013 WL 1196577, at *4
(affirming that the invitation permits a visitor to approach, knock promptly, wait briefly,
and then if not invited to stay, leave).

Here, Officer Nible did more than "any private citizen might do." See King, 131 S.
Ct. at 1862. Rather than simply knock on the door and wait for an answer, Nible
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affirmatively chose to conceal his identify by covering the peephole and positioning
himself to block the occupant's ability to determine who was standing at the door—
essentially forcing the occupant of the apartment to make an uninformed decision. "No
customary invitation" permits approaching someone's door in this manner. Jardines, 2013
WL 196577, at *5. Pursuant to King, because Nible acted unreasonably by exceeding the
scope of a knock and talk, he engaged in conduct that violated the Fourth Amendment
and cannot rely on the exigency exception to justify his warrantless entry.

The State suggested at oral argument that Nible acted reasonably because a
process server, bondsperson, or practical joker might take the same action as the officer.
But these are not examples of what a private citizen might do in approaching another's
home. See King, 131 S. Ct. at 1862. As our United States Supreme Court recently
recognized, it "does not require fine-grained legal knowledge" to understand the bounds
of the invitation that enables an officer to knock on a citizen's door. Rather, "it is
generally managed without incident by the Nation's Girl Scouts and trick-or-treaters." See
Jardines, 2013 WL 196577, at *4. By acting beyond what a private citizen might do,
Nible unreasonably created the exigency leading to his entry.

And while the dissent cites two cases in support of its suggestion that Officer
Nible acted in an acceptable and customary fashion in covering the peephole and hiding
himself from the view of the occupants of the home, neither of the cited cases actually
support that proposition. See State v. Robinson, 327 Wis. 2d 302, 786 N.W.2d 463 (2010)
(defendant alleged officer covered peephole but lower court adopted officer's testimony
that peephole was not covered; appellate court accepted that factual finding and so did
not address defendant's allegation); see also United States v. Ramirez, 676 F.3d 755, 762
(8th Cir. 2012) (court acknowledged that officer covered the peephole but did not find
such action appropriate, instead focusing on officer's clear Fourth Amendment violation
in attempting to open a hotel room door with a key card).
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Additionally, as Campbell points out, the Kansas Legislature has clearly
authorized citizens to use force in defense of their homes. See, e.g., K.S.A. 2012 Supp.
21-5223(a) (creating a defense to criminal charges when a person justifiably uses
appropriate force to protect the person's dwelling). Similarly, our state constitution now
provides: "A person has the right to keep and bear arms for the defense of self, family,
home, and state." Kan. Const. Bill of Rights § 4. Given this history, we simply cannot
accept the State's position that an officer can rely on evidence seized after an officer
conducting a voluntary "knock and talk" breaks down the door of a residence after an
occupant appears at the door of a home carrying a gun, when the officer's intrusion into
the home has been preceded by the officer (1) positioning himself against the door of the
residence so as not to be seen by the occupants; and (2) covering the door's peephole to
prevent the occupant from discerning the officer's identity in an affirmative attempt to
entice the occupants to open the door.

Before closing, we pause to note that assuming an officer safety exigency existed,
Nible properly relied on his training to protect himself. In that respect, his entry cannot be
faulted. But he is not entitled to take advantage of his unreasonable behavior in creating
the exigency by using that entry to gain evidence he otherwise would not have gathered.
In short, while we do not fault Nible for protecting his safety, the Fourth Amendment
does not permit him to rely on evidence he seized only because he acted unreasonably,
exceeding the scope of a knock and talk.

Because the officer's conduct preceding the exigency was unreasonable, the officer
violated the Fourth Amendment and therefore could not rely upon the exigent
circumstances exception to justify his warrantless entry into Campbell's apartment. The
officer's unlawful entry tainted the evidence seized, requiring that we reverse the district
court's decision denying Campbell's motion to suppress and the Court of Appeals'
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decision affirming the district court, and we remand to the district court for further
proceedings.

Reversed and remanded.

* * *
BILES, J., dissenting: I agree the United States Supreme Court's decision in
Kentucky v. King, 563 U.S. __, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011), establishes the
test for determining whether the police-created exigency doctrine applies. But I would
hold that doctrine does not apply in this case because the officer did not violate or
threaten to violate the Fourth Amendment by covering over the peephole and hiding
himself from view before knocking on Campbell's door. I would affirm the district court's
holding that the officer's concern for his own safety permitted the warrantless home
entry.

Fourth Amendment jurisprudence has long recognized that law enforcement is
permitted to approach a suspect's home and knock on the front door in hopes that the
occupant will answer and submit to a voluntary encounter. See, e.g., King, 131 S. Ct. at
1862. The majority concedes this point. Thus, the officer did not violate or threaten to
violate the Fourth Amendment by approaching Campbell's apartment door and knocking
on it. The question is whether a valid "knock and talk" became an impermissible
violation of the Fourth Amendment when the officer covered the peephole and hid from
view. I would hold that this is not a violation or threatened violation of the Fourth
Amendment.

The Wisconsin Supreme Court decided a very similar question in State v.
Robinson, 327 Wis. 2d 302, 786 N.W.2d 463 (2010). There, an officer approached a
home, covered the door's peephole, knocked on the door, and announced that he was a
17



law enforcement officer. After making that announcement, he heard footsteps running.
Fearing that evidence would be destroyed, the officer kicked in the door based on that
exigent circumstance. The defendant argued the officer created the exigency. The
Robinson court held that the police-created exigency doctrine only applies if the officer
violates the law while creating the exigency. It held further that the officer did not violate
the law and upheld the officer's warrantless home entry based on the exigent
circumstances exception to the warrant requirement. 327 Wis. 2d at 326-27. The one
distinction between the facts in Robinson and what happened at Campbell's front door is
that the officer in Robinson announced he was a law enforcement officer. I believe this is
a distinction without a difference.

The majority relies heavily on Florida v. Jardines, No. 11-564, 2013 WL
1196577, 569 U.S. __, __ S. Ct. __, __ L. Ed. 2d __ (March 26, 2013). But the Jardines
Court addressed only whether "'using a drug-sniffing dog on a homeowner's porch to
investigate the contents of the home is a 'search' within the meaning of the Fourth
Amendment.'" 2013 WL 1196577, at *2. The Jardines Court held that a home's front
porch is part of the home's curtilage that is protected by the Fourth Amendment. 2013
WL 1196577, at * 4. And the Court concluded that bringing a drug-sniffing dog onto a
home's front porch was an objectively unreasonable search that exceeded the scope of
what the officer had license to do. 2013 WL 1196577, at *5. But the Jardines Court does
not apply King, and it does not support a conclusion that covering a peephole violates the
Fourth Amendment.

Covering a door's peephole is a ruse law enforcement officers have used before.
See United States v. Ramirez, 676 F.3d 755, 758 (8th Cir. 2012) (officer covered hotel
door's peephole and said "housekeeping" to get occupant to open door). In State v.
Johnson, 253 Kan. 356, 364-65, 856 P.2d 134 (1993), this court summarized numerous
18



cases in which a law enforcement ruse to gain entry into a home was held not to violate
the Fourth Amendment, stating:

"Ruse entries have been upheld in United States v. Turpin, 707 F.2d 332 (8th Cir.
1983) (police told defendant he was not a suspect in a homicide investigation when in
fact police considered defendant a suspect); United States v. Wright, 641 F.2d 602 (8th
Cir.), cert. denied 451 U.S. 1021 (1981) (pretending to have car problems, government
agents knocked on suspect's motel room door and asked to borrow tools; when suspect
opened the door, agents could see white powdery substance and drug paraphernalia
inside); Guidry v. State, 671 P.2d 1277 (Alaska 1983) (officers who sought to verify
license number of defendant's truck and to obtain a description of the property for later
use in obtaining a search warrant posed as prospective house buyers; defendant invited
the officers into the home, where they gained information used to obtain a search
warrant); People v. Ewen, 194 Ill. App. 3d 404, 551 N.E.2d 426, cert. denied 498 U.S.
854 (1990) (police told defendant they were investigating a complaint about a letter he
received that included an order form for child pornography; police had initiated the
letter); Com. v. Morrison, 275 Pa. Super. 454, 418 A.2d 1378 (1980), cert. denied 449
U.S. 1080 (1981) (officer misrepresented his identity and purpose in wishing to view the
interior of the defendant's barn). Deception is but one factor in examining the totality of
the circumstances. See 1 Ringel, Searches & Seizures, Arrests and Confessions §
9.3(b)(5) (2d ed. 1993)."

Similarly, I would hold that simply covering the peephole in the hope that
Campbell would open the apartment door did not violate the Fourth Amendment. The
majority cites no case directly on point to support its conclusion. I would affirm the
district court and the Court of Appeals. The majority has set a precedent for the court that
it will find difficult to live with in future Fourth Amendment cases.