State v. Althaus

305 P.3d 716, 49 Kan. App. 2d 210, 2013 WL 3957457, 2013 Kan. App. LEXIS 67
CourtCourt of Appeals of Kansas
DecidedAugust 2, 2013
DocketNo. 106,813
StatusPublished
Cited by9 cases

This text of 305 P.3d 716 (State v. Althaus) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Althaus, 305 P.3d 716, 49 Kan. App. 2d 210, 2013 WL 3957457, 2013 Kan. App. LEXIS 67 (kanctapp 2013).

Opinion

Atcheson, J.:

Defendant Martin Althaus challenges his convictions for drug-related offenses in Reno County District Court on the sole ground that the search warrant for his home violated his constitutional right against unreasonable searches and seizures and the contraband law enforcement officers found diere should have been excluded as evidence against him. The district court judge ruling on Althaus’ motion to suppress held the Reno County Sheriff s deputy requesting die warrant failed to present probable cause to support the search but then acted in good faith when a different judge nonetheless signed the warrant, thereby rendering the search and seizure constitutionally unobjectionable and the evidence admissible. The district court erred in denying Althaus’ motion to suppress. The application for the warrant was widiout any factual basis for the search of Althaus’ home, a defect a reasonable law enforcement officer would have immediately recognized. The good-faith exception does not apply when an officer’s reliance on a search warrant is objectively and entirely unreasonable. We, therefore, reverse the district court and remand with directions to vacate Althaus’ convictions, to grant his motion to suppress, and to proceed with the case in a manner consistent with this opinion.

Factual Background and Procedural History

On July 16, 2010, Reno County Sheriff s Deputy Riele Newton requested and received a search warrant for Althaus’ Hutchinson home from District Court Judge Joseph L. McCamlle, III. The warrant authorized officers to search the house for methamphetamine and other illegal drugs or related contraband and evidence of illegal trafficking, including paraphernalia for packaging and dis[213]*213tribution of drugs and records of illicit transactions. Newton and other law enforcement officers executed the search warrant later that day. The officers seized a case for eyeglasses containing a small amount of methamphetamine, glass pipes commonly associated with the use of illegal drugs, and plastic sandwich bags in which traffickers often package those drugs.

After District Court Judge Trish Rose denied Althaus’ motion to suppress—the controlling issue in this case to which we return shortly—Althaus was found guilty of possession of methamphetamine, a felony violation of K.S.A. 2010 Supp. 21-36a06, and possession of drug paraphernalia, a misdemeanor violation of K.S.A. 2010 Supp. 21-36a09, in a bench trial on stipulated facts. Judge Rose later placed Althaus on probation for 12 months with an underlying sentence of 15 months in prison on the methamphetamine offense and a concurrent sentence of 12 months in jail on the paraphernalia offense. Althaus has timely appealed those convictions, arguing the drugs and paraphernalia should have been suppressed as the product of an unlawful search of his home in violation of the Fourth Amendment to the United States Constitution. On appeal, he also challenges his sentence. But in light of our ruling reversing the convictions, the sentencing issue is moot, and we do not consider it further.

Deputy Newton presented a nine-page affidavit to Judge McCarville in support of the search warrant. The affidavit contains information about Althaus in a single paragraph covering about half a page. The paragraph, in full, states:

“On July 16, 2010, members of the D.E.U. observed two individuals who they know to be involved in the use and/or distribution of methamphetamine at Ms. Garcia’s residence. One of the individuals is Marty Althaus, who upon leaving Ms. Garcia’s residence drove directly to a storage facility at Hutch Storage, Unit 44B at 801 North Hendricks, Hutchinson, Kansas, where he stayed for approximately 1 minute. This storage unit is rented under the name of Robbin Garcia, [street numbers redacted from original] Westside Villa. During the last several months, the D.E.U. has observed Mr. Althaus frequenting a residence at [street numbers redacted from original] East B Avenue, Hutchinson, Reno County, Kansas, which is owned by Ms. Garcia and her husband. The D.E.U. has observed Mr. Althaus at this residence at times when Ms. Garcia was present and at other times when Ms. Garcia was not present. The D.E.U. knows Marty Althaus resides at [street [214]*214numbers redacted from original] Hayes Street, Hutchinson, Reno County, Kansas.”

The only other paragraph in the affidavit mentioning Althaus is a general one in which Deputy Newton offers his opinion that the information demonstrates probable cause to conclude Althaus is involved in the distribution of illegal drugs and illegal drugs may be found in his home.

The balance of the affidavit offers information principally about Tammy Wise and to a lesser extent Robbin Garcia, who is mentioned in the paragraph about Althaus. The affidavit recounts surveillance of Wise’s residence confirming many people arriving and leaving in especially short time periods—a circumstance Deputy Newton avers, based on his training and experience, to be indicative of drug trafficking. The affidavit states that individuals the investigators “know[] to be involved in the manufacturing of methamphetamine have been observed at [Wise’s] residence.” The affidavit relates other encounters or meetings between Wise and individuals “known” to be traders in illegal drugs. But the affidavit neither names those persons nor describes the factual basis of the investigators’ knowledge.

According to the affidavit, Wise twice left her workplace during the evening of June 25, 2010. The first time she went to her house and then met briefly with someone else in another vehicle. She later left work and briefly stopped in an alley. The affidavit implies those comings and goings to be sinister.

The affidavit relates that for 3 consecutive weeks, Deputy Newton intercepted trash from Wise’s residence after it had been set out for pickup. The first trash intercept or pull yielded “the tom comer” of a plastic sandwich bag, something Deputy Newton recognized to be a common medium for packaging illegal drugs for distribution. The last two pulls contained plastic bags and a syringe that tested positive for methamphetamine based on field tests the officers made. No results from laboratory tests were reported in the affidavit.

The affidavit describes Garcia to be “well known” to investigators “for her involvement in the distribution of methampheta[215]*215mine.” But the affidavit recites no factual basis for that notoriety. The investigators also had information of some sort from some source that Garcia supplies Wise with methamphetamine. On July 15, 2010, investigators saw Garcia meet at her home with a known drug distributor and leave about 45 minutes later to go to the residence of another person known to use and distribute methamphetamine. Again based on his training and experience, Deputy Newton avers in the affidavit that Garcia’s actions were consistent with how drug traffickers operate: They commonly conceal and transport their illegal merchandise in their cars; and they will be resupplied with drugs from a distributor and, in turn, provide drugs to their customers. He also asserts drug dealers often store their merchandise and money in multiple locations to avoid detection.

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Cite This Page — Counsel Stack

Bluebook (online)
305 P.3d 716, 49 Kan. App. 2d 210, 2013 WL 3957457, 2013 Kan. App. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-althaus-kanctapp-2013.