State v. Gordon

559 P.2d 312, 221 Kan. 253, 1977 Kan. LEXIS 235

• Court: Supreme Court of Kansas
• Decided: January 7, 1977
• Docket: 48,339
• Status: Published

Opinions

The opinion of the oourt was delivered by

Habman, C.:

This is an interlocutory appeal by the state from an order suppressing evidence obtained under search warrants.

The state charged defendant Ersel F. Gordon with sixteen counts of felonious theft and two counts of forgery. The investigation which led to these charges involved issuance of two search warrants which, with the resulting searches, are the focus of this appeal.

The parties stipulated to the facts at the hearing of the defendant’s motion to suppress. At the time of the alleged crimes defendant Gordon was 'administrator of a local retirement housing project known as “Lakeview Village”, operated by Evangelical Village and Bible Conference, Inc., which was the victim of the alleged crimes. The village, located on approximately seventy-five acres in Lenexa, Kansas, encompassed a highrise building, with the address 9100 Park Avenue, Lenexa, Kansas, which contained 189 apartments, twenty-four four-plex living units, lounges, dining rooms, shops of various kinds, storage areas for tenants and business offices. Each resident of Lakeview Village had a lifetime right of occupancy of certain quarters. Each occupant of a garden apartment had an individual mailing address. Approximately 189 persons resided in Lakeview Village in October, 1974, of which about 159 shared the 9100 Park Avenue address. As administrator defendant Gordon was responsible to the board of directors of Evangelical Village and Bible Conference, Inc., for all the Village’s operations and property.

The administrative offices consisted of two adjoining rooms, one a large office containing secretarial and sale personnel desks with no private offices, designated by the parties as office A, and the second, designated office B, a slightly smaller room which contained a conference table and defendant’s private desk, credenza and file cabinet. During October, 1974, there was normally no restriction during business horns on ingress and egress between the two rooms as to administrative employees at the village. Both rooms were customarily locked except during business hours. As administrator defendant Gordon used office B as his office and kept therein certain property and documents not related to the operation of Lakeview Village.

On October 25, 1974, Johnson county law enforcement officers obtained the first of the search warrants in question. It directed seizure of “All records pertaining to Lakeview Village Checking Accounts and records and books of account and business of Lake-view Village”. The locations to be searched were stated to be in Johnson county, Kansas, as follows: “Lenexa State Bank; Lakeview Village, 9100 Park Avenue., Lenexa, Kansas; and Southgate State Bank, Prairie Village, Kansas.”

Upon arrival at Lakeview Village the officers proceeded directly to the administrative offices in the highrise building. They entered or searched no other rooms, areas or residences. In the offices they obtained certain items of personal property listed on the return to the warrant. After a discussion with the attorney for Lakeview Village the officers returned to the magistrate court and obtained an additional search warrant. This warrant was identical to the first except that it contained an additional directive to seize “personal papers and property of Ersel F. Gordon”. The officers then returned to Lakeview Village and seized personal property as shown in the return of the second warrant. The seized items were taken from office A, office B and a records storage area in the basement of the highrise building. We are told the seizure included a bank book, tape recording and personal items taken from defendant s desk, credenza and file cabinet.

The trial oourt ruled that defendant Gordon had standing to challenge the searches and seizures and that they were unlawful because the warrants authorizing them were facially invalid for overbroadness as to the area to be searched inasmuch as a multiple occupancy structure was involved.

We consider first the standing issue as it relates to office A and the basement storage area. The state concedes in its brief and in oral argument that defendant does have standing to challenge the search of his private desk, credenza and file cabinet located in office B and we need not be further concerned with the standing issue as to items taken from them. The stipulation of facts does refer to these depositories as defendant’s private desk, credenza and file cabinet and it states that in office B he maintained certain property and documents not related to the operations and property of Lakeview Village. (The state says a written record was made by the officers at the time of the search as to the exact location from which each seized article was taken.)

The fourth amendment to the federal constitution and section 15 of the Kansas bill of rights secure the people against unreasonable searches and seizures of their property. These guaranties protect an aggrieved person s property, not property in which he neither has nor claims any ownership or interest. To protect this interest one must have standing to object to the use of evidence in a criminal proceeding against him on the ground of an illegal search and seizure (State v. Boster, 217 Kan. 618, 539 P. 2d 294). In State v. Sumner, 210 Kan. 802, 504 P. 2d 239, we recognized three bases for obtaining standing to challenge a search warrant: (1) Ownership or possessory interest in the property seized; (2) ownership or possessory interest in the premises searched; or (3) reasonable expectation of freedom from governmental intrusion on the premises.

Defendant Gordon asserts he has the necessary standing under precedent stated in Mancusi v. DeForte, 392 U. S. 364, 20 L. ed. 2d 1154, 88 S. Ct. 2120. There DeForte, a vice-president of a local union, was indicted on charges of conspiracy, coercion and extortion in that he had misused his union office to “organize” owners of juke boxes and compel them to pay tribute. The union had refused to comply with a subpoena duces tecum whereupon law enforcement officers, without a search warrant, conducted a search of the union’s office and seized papers from an office shared by DeForte and other union officials. DeForte did not claim that the office was reserved for his personal use but he did have custody of the papers at the moment of their seizure. In discussing whether DeForte had fourth amendment standing, the court first recognized that since the papers seized did not belong to DeForte he could have personal standing only if, as to him, the search violated the “right of the people to be secure in their . . . houses.....” The word “houses” is not to be taken literally, the court explained, and the constitutional protection may extend to commercial establishments (392 U. S. at 367). The court continued:

“Furthermore, the Amendment does not shield only those who have title to the searched premises. It was settled even before our decision in Jones v. United States, 362 U. S. 257, that one with a possessory interest in the premises might have standing. See, e. g., United States v. Jeffers, 342 U. S. 48. In Jones, even that requirement was loosened, and we held that ‘anyone legitimately on premises where a search occurs may challenge its legality . . . when its fruits are proposed to be used against him.’ 362 U. S., at 267. The Court’s recent decision in Katz v. United States, 389 U. S. 347, also makes it clear that capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion. See 389 U. S., at 352. The crucial issue, therefore, is whether, in light of all the circumstances, DeForte’s office was such a place.” (pp. 367-368.)

The court held that DeForte had standing to object to the seizure, saying:

“. . ■ it seems clear that if DeForte had occupied a ‘private’ office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have standing. ... In such a ‘private’ office, DeForte would have been entitled to expect that he would not be disturbed except by personal or business invitees, and that records would not be taken except with his permission or that of his union superiors. It seems to us that the situation was not fundamentally changed because DeForte shared an office with other union officers. DeForte still could reasonably have expected that only those persons and their personal or business guests would enter the office, and that records would not be touched except with their permission or that of union higher-ups. This expectation was inevitably defeated by the entrance of state officials, their conduct of a general search, and their removal of records which were in DeForte’s custody. It is, of course, irrelevant that the Union or some of its officials might validly have consented to a search of the area where the records were kept, regardless of DeForte’s wishes, for it is not claimed that any such consent was given, either expressly or by implication.” (pp. 369-370.)

We think defendant Gordon’s reliance upon Mancusi is misplaced insofar as the seizure of records from office A and the storage area is concerned. There the owner or proprietor of the premises, the union, did not consent to the search. It was not the victim of the crimes being investigated and in fact it objected to surrender of the papers. Here the proprietor of the property, Lakeview Village, the victim of the crimes for which evidence was being gathered, initiated the search. The areas which were searched were its own property and included nothing reserved for defendant’s exclusive use. Its attorney gave directions for the search. Defendant Gordon was neither an officer nor shareholder of the corporation as was the case in authority relied upon by him (e. g., Henzel v. United States, 296 F. 2d 650, in which defendant was the organizer, sole stockholder and president of the corporation and United States v. Morton Provision Company, 294 F. Supp. 385, where defendants were officers of corporations which were essentially one or two man operations). His status was that of an employee of the corporation. As against him his employer could have preempted its own property and his privacy would not have been invaded. Under these circumstances there simply was no- expectation of freedom from intrusion instigated and directed by that employer and no standing to object to search and seizure existed. Our bolding is that as to records removed from office A and the basement storage area defendant Gordon had no standing to obj’ect on the basis of illegal search or seizure and that part of the judgment must be reversed.

We turn now to the issue of overbreadth in the description of the 'area to be searched, with reference to the search and seizure of items from defendant’s private desk, credenza 'and file cabinet. Both warrants directed a search of three locations: Lenexa State Bank; Lakeview Village, 9100 Park Avenue, Lenexa, Kansas; and Southgate State Bank, Prairie Village, Kansas. Defendant’s contention of invalidity is two-fold: First, the warrants direct the officers to three different Iooafions owned and occupied by separate persons, and second, Lakeview Village is a multiple occupancy structure and the warrants failed to specify the subunit or area to be searched. Both contentions have merit.

It is constitutionally required that a search warrant shall “particularly” describe the place to be searched. Thus general or blanket warrants which give the executing officers a roving commission to search where they choose are forbidden. The general rule respecting multiple locations is stated in 68 Am. Jur. 2d, Searches and Seizures, § 78, as follows:

“The very purpose of the constitutional requirement of particularity in. describing the place to be searched, to wit, the prohibition of general warrants, leads to the conclusion that a warrant may not ordinarily authorize the search of multiple premises owned or occupied by different persons.” (p. 732).

There are no facts present in the instant case which appear to justify departure from the foregoing rules. Of greater significance is the fact that one of the places to be and which was searched under that warrant was a highrise multiple occupancy structure occupied by a number of persons and the location was described simply as 9100 Park Avenue, Lenexa, Kansas. No subunit or specific designation or location within the structure was given. The only direction was an address used in common by at least 159 residents of Lakeview Village and for several shops as well. In an annotation at 11 ALR 3d 1330, Search Warrant — Apartment or Room, this statement appears:

. . Where the area under suspicion is located in a structure divided into more than one occupancy unit such as a hotel, apartment house, or similar multiunit dwelling, the question is presented whether the description set forth in the warrant is sufficient to comply with the constitutional requirement. . . . the courts are agreed that a warrant is invalid if it contains no description of the subunit to be searched but refers merely to the larger multiple-occupancy structure. The insufficiency of such a warrant has been recognized in a number of cases where the premises were described merely by the street or municipal number assigned the larger structure and used in common to designate all the occupancy units therein contained.” (p. 1332.)

The foregoing principle has 'been applied to commercial buildings (see e. g., In re Calandra, 332 F. Supp. 737, affirmed sub nom United States v. Calandra, 465 F. 2d 1218, reversed on other grounds, 414 U. S. 338, 38 L. ed. 2d 561, 94 S. Ct. 613). Thu's a search warrant directed against a multiple occupancy structure generally will be held invalid if it fails to describe the particular room or subunit to be searched with sufficient definiteness to preclude a search of other units (see cases cited at 68 Am. Jur. 2d, Searches and Seizures, §77, note 39). Here again a few courts have declared exceptions to this rule but none of them, even if recognized, is applicable under the facts in this case. (These exceptions include those summarized in Perez v. State, 249 Ark. 1111, 463 S. W. 2d 394: [1] Where the warrant adequately identifies the subunit by naming the occupant; [2] where the description of the subunit is sufficient to enable the executing officer to locate the premises with reasonable certainty, in spite of a slight omission or inaccuracy; [3] where the deficiency in the warrant may be cured by a proper description in the supporting affidavit, although it is usually required that the affidavit be annexed or attached to the warrant; see also Anno: 11 ALR 3d 1330, supra, III Exceptions and Qualifications, §§5-10, pp. 1340-1347.)

Here the search warrants were general in their terms in that they did not describe the particular area in a large multiple occupancy structure which was to be searched. The only description given was common to many subunits in the building. The effect was to leave the area to be searched to the discretion or option of the executing officers. This is constitutionally forbidden and the trial court correctly ruled as to the items taken from defendant’s private desk, credenza and file cabinet.

Accordingly as to items taken from office A and the basement storage area the judgment is reversed. As to items taken from defendant’s personal desk, credenza and file cabinet in office B it is affirmed. The cause is remanded to the trial court for further proceedings in harmony with this opinion.

approved by the court.