State v. Creason

98 P.3d 985, 33 Kan. App. 2d 114, 2 A.L.R. 6th 709, 2004 Kan. App. LEXIS 1090
CourtCourt of Appeals of Kansas
DecidedOctober 8, 2004
DocketNo. 90,959
StatusPublished
Cited by1 cases

This text of 98 P.3d 985 (State v. Creason) 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. Creason, 98 P.3d 985, 33 Kan. App. 2d 114, 2 A.L.R. 6th 709, 2004 Kan. App. LEXIS 1090 (kanctapp 2004).

Opinion

Marquardt, J.:

Larry A. Creason appeals his convictions for one count each of possession of marijuana with intent to sell and criminal possession of a firearm, as well as the trial court’s denial of his motion to suppress evidence. We affirm in part and dismiss in part.

A confidential informant (Cl) told Chief Robert Sage that he was present when Creason sold cocaine, Creason had “beat the shit” out of people who crossed him, and he claimed to have witnessed Creason beating someone over a “drug deal gone bad.” Based on this report and some additional information, Sergeant Michael Unden initiated a background check of Creason, which revealed a prior conviction for aggravated battery. Police investigation of Creason’s garbage revealed traces of cocaine and marijuana.

In July 2002, Sergeant Unden submitted an affidavit and application for a search warrant for Creason’s home. In the affidavit, Sergeant Unden informed the trial court that Creason had prior arrests for burglary, theft, and aggravated battery. Sergeant Unden also included the information provided by the C.I. and requested permission to serve the warrant without knocking and announcing.

The trial court issued the warrant authorizing permission to execute the warrant without knocking and announcing. A handgun, rifle, plastic bags which contained white powder, drug paraphernalia, and a plastic bag containing a “green botanical substance” were found in the search.

Creason was charged with one count each of possession of marijuana with intent to sell, possession of methamphetamine with intent to sell, felony possession of drug paraphernalia, and criminal possession of a firearm. The count of possession of methamphetamine was later amended to possession of cocaine. Creason [116]*116promptly filed a motion to suppress, arguing that the police violated his constitutional rights by executing a no-knock warrant.

After a hearing, the trial court denied the motion to suppress. Creason agreed to proceed to trial on stipulated facts, and he was convicted of one count each of possession of marijuana with intent to sell and criminal possession of a firearm. He received a controlling sentence of 44 months’ imprisonment. Creason timely appeals.

In ruling on Creason’s motion to suppress, the trial court stated that the no-knock warrant was based on information provided by law enforcement officers. On appeal, Creason argues that the evidence presented to the trial court did not support a finding of circumstances sufficient to dispense with the knock and announce requirement. Creason argues that the State did not present any evidence that he possessed any weapons, or that he had made any statements indicating he would use violence to resist arrest.

The function of an appellate court is to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as sufficient to support a conclusion. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 747, 27 P.3d 1 (2001). An appellate court’s review of conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).

Chief Sage testified that he neither investigated the veracity of the C.I.’s claims, nor ran a background check on the C.I. However, Chief Sage had previously encountered Creason while working a private security job and was aware that Creason was “associated with drug activity.” In addition, while he was employed in private security, Chief Sage encountered Creason’s girlfriend, who alleged that Creason beat her.

Sergeant Unden testified that he first made contact with Creason during a disturbance at a shopping mall, where Creason was involved in a fight. Sergeant Unden admitted that Creason appeared to be the victim in that altercation. A woman at the scene said that she believed the melee was “drug related.” Sergeant Unden dis[117]*117covered that another jurisdiction was conducting an ongoing investigation of Creason after a fistfight occurred at a tavern. Cocaine was allegedly found at the scene of that altercation.

It appears that one of the factors that influenced law enforcement to ask for the no-knock warrant was information from another officer regarding a traffic stop where in excess of 100 grams of cocaine, methamphetamine, and marijuana, as well as two loaded and stolen handguns, were found in a car heading to an address in Creason’s neighborhood. However, there was no evidence that the driver was connected to Creason in any way.

In 1995, the United States Supreme Court held that when executing a search warrant, the common-law principle of announcement is always an element of the reasonableness inquiry under the Fourth Amendment. Wilson v. Arkansas, 514 U.S. 927, 931-37, 131 L. Ed. 2d 976, 115 S. Ct. 1914 (1995). In Richards v. Wisconsin, 520 U.S. 385, 391-95, 137 L. Ed. 2d 615, 117 S. Ct. 1416 (1997), the Supreme Court held that in order to justify a no-knock entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence.

The Kansas Supreme Court, in evaluating the propriety of a noknoclc warrant, ruled that officers are excused from the knock and announce rule when justified by exigent circumstances which will be deemed to exist only when the officers hold an objectively reasonable belief that an emergency situation exists. State v. Shively, 268 Kan. 589, 595, 999 P.2d 259 (2000).

In the instant case, it is undisputed that the police executed a no-knock warrant. Our only inquiry, then, is whether the entry was justified by exigent circumstances.

In State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999), law enforcement officials were investigating a burglary and double homicide, and they had reason to believe that the defendant was involved. The officers knew that multiple firearms had been stolen during the incident, and they believed that the weapons were located inside tire residence. Based on these findings, the Kansas [118]*118Supreme Court affirmed the trial court’s decision that a no-knock warrant was justified. 267 Kan. at 131-32.

In Shively, the police obtained a search warrant based on information provided by a C.I. who had been cooperating with the authorities for less that 1 month, and had no convictions for dishonesty. The C.I. told the police that Shively was selling marijuana from his residence; however, he did not believe that Shively had any animals or weapons in his residence. The Kansas Supreme Court concluded that the facts did not support the existence of exigent circumstances to justify a no-knock entry. 268 Kan. at 596.

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Bluebook (online)
98 P.3d 985, 33 Kan. App. 2d 114, 2 A.L.R. 6th 709, 2004 Kan. App. LEXIS 1090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-creason-kanctapp-2004.