State v. Barnes

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NOT DESIGNATED FOR PUBLICATION

No. 117,673


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

AMBER DAWN BARNES,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed July 6, 2018.
Reversed and remanded with directions.

Sarah C. Anderson, legal intern, and Randall L. Hodgkinson, of Kansas Appellate Defender
Office, for appellant.

Daniel D. Gilligan, senior assistant district attorney, Keith E. Schroeder, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., ATCHESON and BRUNS, JJ.

ATCHESON, J.: If government agents want to search a person's home, the Fourth
Amendment to the United States Constitution requires them to present facts to a judge
establishing probable cause for a warrant. Those facts must be sufficiently concrete and
detailed to allow the judge to make an independent evaluation of the propriety of the
request. Conclusions and generalities are not facts, and government agents should know
the difference. Where, as here, law enforcement officers rely on a warrant resting on
conclusions and generalities, they cannot lay claim to the good-faith exception to the
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exclusionary rule to rescue an unconstitutional search of a home. We, therefore, reverse
the contrary ruling of the Reno County District Court and remand with directions that the
district court suppress the drugs and other contraband law enforcement officers seized in
violation of Amber Dawn Barnes' Fourth Amendment rights.

This case now appears before this court for the second time. A panel of this court
reversed a district court decision finding the affidavit to be sufficient to support the
search warrant but remanded for consideration of the good-faith exception. State v.
Barnes, No. 114,125, 2016 WL 7031847, at *5 (Kan. App. 2016) (unpublished opinion)
(Barnes I). On remand, the district court received briefs and heard argument from
lawyers for the State and Barnes and ruled the good-faith exception to the exclusionary
rule applied, thereby permitting the use of the methamphetamine and drug paraphernalia
seized from Barnes' home as evidence against her in this case. Barnes has appealed that
ruling.

We address a narrow issue: Was the affidavit submitted to obtain the warrant to
search Barnes' residence so lacking in facts that a reasonable law enforcement officer
would have obviously recognized the absence of probable cause even though a judge
signed the warrant? See United States v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 82 L.
Ed. 2d 677 (1984); State v. Hoeck, 284 Kan. 441, 464-65, 163 P.3d 252 (2007); State v.
Althaus, 49 Kan. App. 2d 210, 225, 305 P.3d 716 (2013). This is a question of law. The
assertions in the affidavit are themselves fixed—what the affiant stated within the four-
corners of the document is undisputed. We measure the constitutional sufficiency of
those assertions based on how the hypothetical reasonably well-trained law enforcement
officer would view them. Leon, 468 U.S. at 919-20 & n.20; Althaus, 49 Kan. App. 2d at
222. The subjective beliefs of the law enforcement officers signing the affidavit or
executing the search warrant are irrelevant. Because the issue turns on the application of
legal principles to undisputed circumstances, we owe no deference to the district court.
Althaus, 49 Kan. App. 2d at 217, 222.
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We outline briefly the governing legal principles and then apply them to the
content of the affidavit Hutchinson Police Officer Darrin Pickering submitted in support
of a search warrant for Barnes' home in that city. An affidavit must establish probable
cause—a reasonable belief—that contraband or evidence of a crime may be found at a
specifically identified place. Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct.
1657, 134 L. Ed. 2d 911 (1996); Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76
L. Ed. 2d 527 (1983); State v. Hicks, 282 Kan. 599, 611, 147 P.3d 1076 (2006). The facts
recited in an affidavit must be sufficiently detailed so that the reviewing judge can
independently assess whether they demonstrate probable cause. Conclusory assertions do
not qualify as facts. Gates, 462 U.S. at 239 ("Sufficient information must be presented to
the magistrate to allow that official to determine probable cause; his action cannot be a
mere ratification of the bare conclusions of others."); Hicks, 282 Kan. at 614 ("Bald
conclusions, mere affirmations of belief, or suspicions are not sufficient to support a
finding of probable cause.").

Here, the affidavit fell short of showing probable cause to believe drugs, other
contraband, or evidence of criminal activity would be found in Barnes' home. The panel
so held in Barnes I, 2016 WL 7031847, at *4-5, and that holding is now law of the case.
We share that conclusion, an unsurprising result both legally, given the content of the
affidavit, and practically, since two members of the Barnes I panel reappear on this panel.

When government agents violate an individual's Fourth Amendment rights, any
evidence they uncover typically may not be used against that person in a criminal
prosecution. Herring v. United States, 555 U.S. 135, 139-40, 129 S. Ct. 695, 172 L. Ed.
2d 496 (2009); Leon, 468 U.S. at 908-09. Courts, however, commonly do not invoke the
exclusionary rule if the government agents have acted in good-faith reliance on a search
warrant that a judge has reviewed and signed. Leon, 468 U.S. at 913-14; Hoeck, 284 Kan.
441, Syl. ¶¶ 1, 2 (recognizing good-faith exception as applied to search warrants). But the
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good-faith exception itself does not apply in several narrow situations, including when
the affidavit supporting the warrant is "'so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable.'" Leon, 468 U.S. at 923; see
Althaus, 49 Kan. App. 2d at 221-22. We recognize courts should rarely override the
good-faith exception, thereby encouraging law enforcement officers to obtain search
warrants. But that encouragement must be tempered with the court's obligation to deter
patently unconstitutional searches and seizures, particularly those intruding upon a
person's home, despite a judge's obviously mistaken decision to sign a warrant. See
Florida v. Jardines, 569 U.S. 1, 6, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013) ("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.'") (quoting Silverman v. United States,
365 U.S. 505, 511, 81 S. Ct. 679, 5 L. Ed. 2d 734 [1961]); Herring, 555 U.S. at 141
(deterrent function of exclusionary rule).

This case essentially replicates the legal issue posed in Althaus, although the
content of the affidavit for the search warrant here presents a closer call on whether the
good-faith exception should be overridden. In Althaus, the court offered a considerably
deeper discussion of the Fourth Amendment principles at play. This court has also
outlined the historical development of the Fourth Amendment, particularly as a shield
against unreasonable government intrusion into an individual's home, in State v. Dugan,
47 Kan. App. 2d 582, 587-89, 276 P.3d 819 (2012). Those opinions amplify the Fourth
Amendment law we apply today.

In the affidavit, Officer Pickering tried to show that illegal drugs or evidence of
drug trafficking reasonably might be found in Barnes' home. He offered averments
intended to establish that Arthur Adams was a drug dealer and that Adams and Barnes
had a close association. He also included averments related to Barnes or her home. But
the assertions lack sufficient specificity or relevance to support probable cause to believe
contraband or other evidence might be found in Barnes' home when Officer Pickering
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presented the affidavit to the district court in late October 2013 to obtain a search
warrant.

The affidavit shows that a year earlier, law enforcement officers apprehended
Adams with marijuana, and he was charged with possession with intent to distribute,
among other offenses. Those charges remained unresolved when Pickering submitted the
affidavit to the district court. The affidavit asserts that in October 2013, officers assigned
to the Reno County Drug Enforcement Unit "received information from four reliable
confidential informants" that Adams was then selling marijuana, methamphetamine, and
prescription pills. The affidavit recites that the four informants had provided reliable
information to law enforcement officers in successful drug prosecutions.

We suppose these informants were known to members of the drug unit, including
Pickering, and they were not named in the affidavit to avoid compromising their
identities. Government agents may rely on confidential informants and even unknown
tipsters if the reconnaissance they provide can be verified as reliable. Commonly,
verification rests on corroboration of details of the particular information, suggesting all
of it may reliable, or on the source's history of providing reliable information. The
affidavit likely establishes the reliability of the confidential informants.

The problem here is with their "information." The affidavit neither outlines nor
describes the information, and the label alone is too generic to permit meaningful judicial
review. The information could be based on the informants' witnessing or even
participating in drug deals with Adams. That would be highly probative. But the
information could just as easily be hearsay three or four layers deep—something
approaching community rumor or word on the street. That would have little, if any,
probative value. We made precisely this point about the unexplained use of the word
"information" in a search warrant affidavit in Althaus, 49 Kan. App. 2d at 226.

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Pickering's affidavit states that in the preceding several weeks—mid-to-late
October 2013—drug unit officers had observed Adams drive to various residences, pick
up an individual, drive around the block, and drop off the person back in front of the
residence. Based on his training and experience, Pickering averred that sort of short
contact suggested the delivery of illicit drugs to a customer.

The affidavit also states that "some" residences Adams "frequents are known to
the [drug unit] for their involvement in controlled substances." The affidavit
conspicuously does not assert that those residences are ones where the officers saw the
apparent drug transactions. Nor does the affidavit describe the manner in which Adams
"frequents" those places. The affidavit identifies by name three people who lived in the
residences. Law enforcement officers saw one of the individuals purchase illegal drugs
from unidentified individuals, presumably other than Adams, at unspecified times.
Confronted about one of the transactions, the person admitted buying methamphetamine.
The other two people have drug convictions. And one of them had an active criminal case
for drug possession. We question whether the residence of a person with recent drug
convictions or even pending drug charges can be fairly described for that reason as
presently "involved in controlled substances" in a way that would support issuing a
search warrant.

The affidavit, however, likely contains facts—mostly the apparent sales during the
preceding several weeks—that would prompt a reasonable person to believe Adams was
illegally trafficking in drugs. The affidavit then links Adams to a specific street address in
Hutchinson where Barnes lives. According to the affidavit, drug unit officers have seen
Adams go to Barnes' home as frequently as several times a day, "often spend[ing] several
hours there." Adams had then been observed "engaging in what appear[] to be drug
transactions at other locations." The affidavit, however, fails to say when any of these
events took place. Nor does it quantify in any way how many days Adams had been seen
at Barnes' residence. For all the affidavit shows, it could have been two or three times
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months earlier. The affidavit also fails to identify the "other locations" Adams went to
from Barnes' home or why his activity there looked to be drug trafficking. Again, the
affidavit conspicuously refrains from saying those locations were the places the drug unit
officers saw Adams in October 2013 or even the residences known for "their [drug]
involvement."

A court cannot infer unstated facts to supplement what's actually in an affidavit.
See Virgin Islands v. John, 654 F.3d 412, 419-20 (3d Cir. 2011); United States v. Falso,
544 F.3d 110, 122 (2d Cir. 2008); State v. Malone, 50 Kan. App. 2d 167, 172, 323 P.3d
188 (2014) (sufficiency of affidavit for search warrant determined from "the four corners
of the document"). So a reviewing court could not assume those events tying Adams to
Barnes' home happened shortly before Pickering drafted the affidavit.

The affidavit then recites the drug unit had been informed of a "Crime stoppers
tip" that Barnes "is traveling to Wichita, Kansas, to purchase drugs, and is possibly
selling methamphetamine" from her home. The affidavit, however, is silent as to when
the tip was received or the substantive basis of the tipster's conclusions about Barnes. The
tip could have been months old, and the district court had no reason to assume otherwise.
See Hicks, 282 Kan. at 616 (stale or outdated information insufficient to show probable
cause for search warrant). The source apparently was truly anonymous to the drug unit.
None of the officers knew the tipster's name. And they had no apparent history with the
source providing accurate information about other crimes. Nothing in the affidavit
suggests the tipster had firsthand knowledge about Barnes' activities rather than simply
speculation or rumor. See State v. Slater, 267 Kan. 694, 699-703, 986 P.2d 1038 (1999)
(discussing indicia of reliability of citizen informants and tipsters). The tip might have
had value as an investigative lead, but it conveyed nothing supporting a reasoned belief
illegal drugs might be found in Barnes' home when the district court reviewed the
affidavit in conjunction with the requested search warrant.

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In the affidavit, Pickering offered that his training and experience allowed him to
conclude that the combination of the crime stoppers tip and Adams' ill-defined visits to
Barnes' house gave the appearance that Barnes was supplying Adams with drugs to sell.
But Pickering doesn't explain what aspect of his background led him to believe the
lengthy visits between Barnes and Adams were indicative of drug trafficking, while the
brief motor-vehicle contacts Adams had with other individuals were similarly sinister.
The ostensible conclusion seems to be that some contact, whatever its duration, with a
suspected drug dealer, such as Adams, turns the other party into a fellow trafficker. But
the result rests on unexplained reasoning drawn from otherwise mysterious training or
experience. A district court cannot objectively assess the legal soundness of such
conclusions and must be wary of generically invoked "training and experience" to justify
an assertion that appears to be in tension with other assertions based on that same training
and experience.

Finally, the affidavit describes a trash pull Pickering supervised at Barnes'
residence the day he prepared and signed the affidavit. Pickering contacted the company
that picks up the trash and arranged to have the bin of the truck cleared before it stopped
at Barnes' house. Pickering saw that a trash container had been placed in front of the
house and watched as the contents were emptied into the truck. He then examined the
trash immediately after the truck drove away. So he would have been looking at only
what had been in Barnes' container. Pickering found a broken glass pipe with burnt
residue that was not otherwise identified, used ziplock plastic bags— one of which field
tested positive for methamphetamine, plastic sandwich bags with the corners torn off, and
used syringes. All of those items fairly could be considered drug paraphernalia, and the
torn baggies would be consistent with packaging certain illicit drugs, including
methamphetamine, for sale. Pickering also found mail addressed to Barnes and a
handwritten note containing the name "Arthur."

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From what the affidavit described, the trash was loose rather than in a garbage
bag. Pickering provided no information about when the trash container had been placed
in front of Barnes' house, who placed it there, or where the container was otherwise kept.

To support a search warrant, information gleaned from a trash pull must provide
"some definite link between the illegal or suspicious activity described in an affidavit and
the . . . residence [to be searched;] [t]hat link must be sufficient to establish a fair
probability that contraband or evidence of a crime will be found in the residence."
Malone, 50 Kan. App. 2d at 173. This court has thus taken a fairly strict view as to when
a single trash pull alone will support a search warrant for a residence. The circumstances
need to dispel the possibility that anyone passing by the residence could have placed the
contraband in the trash container. 50 Kan. App. 2d at 173.

The affidavit does not satisfy that requirement. A drug trafficker could have
passed by Barnes' house after the trash container had been put out for the refuse company
and well before Pickering began surveilling the scene. That possibility would have been
materially negated had the paraphernalia been found in a sealed garbage bag with the
mail addressed to Barnes.

Other information could have reinforced the comparatively limited inferences
properly drawn from the single trash pull. For example, had Pickering or other members
of the drug unit watched Barnes' house around that time and observed visitors regularly
arriving and departing after staying just a few minutes, consistent with ongoing drug
sales, the trash pull would have carried greater weight in establishing probable cause for a
search warrant. See, e.g., United States v. Becknell, No. 13-10071-JTM, 2013 WL
3820018, at *3 (D. Kan. 2013) (unpublished opinion) (multiple brief visits as indicator of
drug trafficking); Sweeney v. Gansheimer, No. 1:09CV2377, 2010 WL 4955706, at *1
(N.D. Ohio 2010) (unpublished opinion) (same). Similarly, a second trash pull a week
later yielding comparable evidence would have undercut the possibility a random
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interloper deposited the paraphernalia in Barnes' trash container. But the affidavit offers
no such buttressing information. The crime stoppers tip, as we have explained, was both
too remote and too vague to serve that purpose.

The district court sought to bolster the trash pull by pointing out that Hutchinson
has a municipal ordinance making it unlawful to place trash in someone else's container.
The district court suggested that Pickering would have been aware of the ordinance and
reasonably could have inferred that it would be obeyed—so no one besides Barnes would
have put anything in her trash container. We are underwhelmed by the notion that
persons trafficking in drugs, a serious felony, would be deterred from disposing of
evidence of their enterprise by dumping it in some random trash container because that
conduct would be an ordinance violation. And we likewise doubt a reasonable
investigator would or could rely on such a counterintuitive proposition.

In sum, the affidavit's failing for Fourth Amendment purposes rests largely on a
lack of factual specificity and the repeated substitution of conclusions and generalities for
assessable facts. The difference between facts and conclusions is not an esoteric legal
point. It is a basic concept common to many endeavors, including law and police work. A
reasonably well-trained law enforcement officer should be able to distinguish a concrete
fact from an abstract conclusion. And that same officer should know that an affidavit for
a search warrant must be built upon concrete facts. See Althaus, 49 Kan. App. 2d at 231.
The affidavit, given its weaknesses, suggests either a lack of training or a disregard of
training.

The exclusionary rule should be applied to deter Fourth Amendment violations
attributable to intentional law enforcement conduct or "recurring or systemic negligence."
Herring, 555 U.S. at 144. Drafting an affidavit for a search warrant that consistently
substitutes conclusory representations for facts must be one or the other. The affidavit
here was so lacking that a well-trained officer should have recognized its deficiency even
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though a district court judge approved the warrant. We, therefore, cannot say the good-
faith exception overrides the exclusionary rule in this case. Consistent with Barnes I, we
find the motion to suppress should have been granted.

We reverse the district court's ruling applying the good-faith exception and
remand with directions to grant Barnes' motion to suppress and for any further
proceedings consistent with this opinion.

* * *

POWELL, J., concurring: I concur with the result.

* * *

BRUNS, J., dissenting: I respectfully dissent. Although I agree with the majority
that the affidavit lacks probable cause as we previously found in State v. Barnes, No.
114,125, 2016 WL 7031847, at *5 (Kan. App. 2016) (unpublished opinion) (Barnes I), I
do not find that it was unreasonable for the law enforcement officers to believe the search
warrant was valid under the circumstances presented. In other words, I do not find this to
be a case in which there was so little indicia of probable cause in the affidavit that a
reasonable law enforcement officer would override the probable case determination
found by the district judge who signed the search warrant. See State v. Zwickl, 306 Kan.
286, 297, 393 P.3d 621 (2017); State v. Hoeck, 284 Kan. 441, 464-65, 163 P.3d 252
(2007).

As the United States Supreme Court has held, "[i]t is the magistrate's
responsibility to determine whether the officer's allegations establish probable cause and,
if so, to issue a warrant comporting in form with the requirements of the Fourth
Amendment." United States v. Leon, 468 U.S. 897, 921, 104 S. Ct. 3405, 82 L. Ed. 2d
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677 (1984). Absent unusual circumstances, "an officer cannot be expected to question the
magistrate's probable-cause determination or his judgment that the form of the warrant is
technically sufficient." 468 U.S. at 921. If a search is conducted pursuant to a search
warrant obtained from a judge or magistrate, the warrant is normally sufficient to
establish the good faith of a law enforcement officer in conducting a search. 468 U.S. at
922.

In applying Leon and its progeny, our Supreme Court has found that "[t]he
threshold to avoid the Leon good-faith exception is a high one." State v. Powell, 299 Kan.
690, 701, 325 P.3d 1162 (2014). In determining whether this high threshold has been
met, we must "evaluate whether it was entirely unreasonable for the officers to believe
the warrant was valid . . . ." 299 Kan. at 701. We do so by looking to the affidavit offered
in support of the search warrant in its entirety to determine "'whether a reasonably well
trained officer would have known that the search was illegal despite the magistrate's
authorization.'" 299 Kan. at 701 (quoting Leon, 468 U.S. at 922 n.23).

In Zwickl, our Supreme Court found it to be significant that "two different courts
looked at the same [affidavit] and arrived at opposite conclusions about the indicia of
probable cause and how an objectively reasonable law enforcement officer would view
the affidavit's contents after the judge issued the warrant." 306 Kan. at 295. In such cases,
"[t]he quandary for the officer is apparent and underscores the [probable cause]
continuum described in Hoeck." 306 Kan. at 295. Similarly, in this case, we have two
courts—the district court and our court—that have examined the affidavit and reached
opposite conclusions regarding probable cause. We also have two experienced judges—
the one who authorized the search warrant and the one who presided over the initial
suppression hearing—who both found that the affidavit provided sufficient probable
cause to support the warrant.

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Although there are problems with the affidavit as we noted in Barnes I and as the
majority notes above, I would find that it contains a sufficient indicia of probable cause to
meet the Leon good-faith exception. Much of the affidavit relates to Arthur Adams being
involved in the distribution of drugs. Through surveillance, law enforcement officers
observed that Adams frequently visited Barnes' residence both in the day and at night.
Officers observed Adams going from Barnes' residence and engaging in apparent drug
transactions at other locations. Moreover, a note with the name "Arthur" written on it, a
broken glass pipe with burnt residue, numerous small used ziplock baggies—one which
field-tested as being positive for methamphetamine, sandwich baggies with the corner
torn off, and used syringes were discovered in a trash pull at Barnes' residence.

Under the circumstances presented, it does not appear to be "entirely
unreasonable" for the law enforcement officers to believe the search warrant was valid.
Furthermore, I am not convinced that a reasonable law enforcement officer would have
rejected the probable cause determination made by the district court judge and refused to
execute the warrant once it was signed. Accordingly, I would affirm the district court's
decision applying the good-faith exception and denying the motion to suppress.