State v. Kimberlin

977 P.2d 276, 26 Kan. App. 2d 28, 1999 Kan. App. LEXIS 71
CourtCourt of Appeals of Kansas
DecidedMarch 12, 1999
DocketNo. 81,435
StatusPublished
Cited by1 cases

This text of 977 P.2d 276 (State v. Kimberlin) 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. Kimberlin, 977 P.2d 276, 26 Kan. App. 2d 28, 1999 Kan. App. LEXIS 71 (kanctapp 1999).

Opinion

Lewis, J.:

This is an interlocutory appeal by the State of Kansas from an order of the trial court granting defendant’s motion to suppress evidence seized from his home.

[29]*29On the date in question, at about 1:00 in the morning, Melanie Nielson called for the police to respond to her residence. Melanie lived in a home with defendant and apparently had been a resident of that home for some time. At times, defendant would get drunk and violent, and his violence was occasionally directed at Melanie. On one occasion, for example, defendant had shoved her down the stairs and, in the process, had pulled out a handful of her hair.

On this particular evening, Melanie called the police because she was “scared because defendant was acting crazy, going off.” In addition, defendant was drunk and was tearing up a roommate’s bedroom.

The police dispatcher advised Officer James Tilton and his partner to respond to Melanie’s call. In due time, they went to the front door of the house where they were confronted by defendant, who was angry and belligerent. Defendant ordered Officer Tilton and his partner off the premises in a profane diatribe. The police attempted to explain that they had a call about violence in the house and wanted to check it out. Defendant refused to allow them to do so.

The officers left and then came back and again confronted defendant because they heard him yell and scream at a female and needed to see if the female was okay. Again, defendant loudly and profanely ordered the officers to leave. Ultimately, defendant’s actions became so severe and so profane that he was arrested for disorderly conduct and taken to jail.

After defendant was removed, Officer Tilton stood at the door of the house, with Officer Jeff Eubank behind him. He began to ask the female occupant to present herself. In time, in response to his request, Melanie appeared and came outside of the home. Melanie and Officer Tilton discussed past instances of abuse by defendant, and Melanie advised Officer Tilton that defendant had done considerable damage to a roommate’s room in the house.

At some point in time, Officer Tilton asked if he could see the damage done in the house. Melanie said “yes” and opened the door, and Officer Tilton followed her in, with Officer Eubank following Officer Tilton. Officer Eubank believed that consent to enter had been granted to himself as well as Officer Tilton. He said [30]*30he entered the house because, “ ‘I wasn’t going to let him [Officer Tilton] go into the residence by himself, mainly because of the safety issue.’ ” He later stated that he felt it was necessary to enter the house “for the safety of [Officer] Tilton.” Upon entering the house, Officer Eubank quickly discovered a hitherto unknown subject sitting in a chair in die living room. In the process of checking out this individual, Officer Eubank observed what he believed to be marijuana “roaches” in an ashtray. At some point in time, he picked up one of the roaches out of the ashtray and smelled it, confirming in his own mind that it was, indeed, marijuana.

The officers then attempted to obtain a consent from Melanie for a general search of the house. She refused to give this consent. As a result, the officers obtained a search warrant to search the dwelling based on the knowledge gained by Officer Eubank while he was in the house.

The search warrant was executed and yielded quantities of marijuana, LSD, drug paraphernalia, and no drug tax stamps. The trial court’s order of suppression bars the entry into evidence of all items seized under the search warrant. The order of suppression is based on the theory that Officer Eubank, who found die marijuana in plain view, was illegally in the house and that any evidence seized as a result of his being in the house was unlawful and should be suppressed. Melanie testified that while she had given Officer Til-ton permission to enter the house, she had not given Officer Eu-bank permission to enter the house.

In granting suppression, the trial court found that while Officer Tilton entered the house lawfully, Officer Eubank did not. The court’s order finds the following:

“2. The Court determined that there were two officers at the residence, one being Officer Tilton, whose entrance into the residence was lawful and at the request of the resident, Melanie Nielsen.
“4. The question involved in this case is whether Officer Eubank’s entrance into the home was with consent. The Court determined that his entrance into the home was without consent and, therefore, unlawful.
“5. The Court further found that there was no exigent circumstances sufficient to warrant Officer Eubank entering into and searching the living room without a warrant.”

[31]*31We do not agree with the trial court’s decision. That decision permits the resident to invite one police officer into his or her house while denying permission to a backup officer to enter to protect the first officer. This rule would make a police officer’s job, already dangerous enough in entering an unknown residence, to be more hazardous than necessary.

The question before this court is whether a citizen may call the police to his or her home for protection and then grant only one police officer permission to enter the home while denying permission to the officer’s backup, who was there to look after the safety of the officer entering the house. We conclude the answer to this question is no. We hold that where there are two or more police officers at a scene, and they have been called to the scene by a resident of the house, and there are allegations of violent behavior in the house, the consent given to one officer to enter the house necessarily, as a matter of law, implies that there is equal consent for adequate backup officers to enter the house as well. Our rulé is designed to provide protection for police officers in a dangerous setting in situations where the entry of the backup officer is a minimal intrusion under the circumstances. When the resident of a dwelling invites one police officer into the dwelling, the entry of a backup officer under the same consent is, at best, a minimal intrusion upon the resident’s Fourth Amendment rights.

In reaching our decision, we do not question the findings of fact by the trial court. We note there is ample evidence in the record to indicate that Officer Eubank entered the house with permission. We are not, however, factfinders and accept as correct the facts as found by the trial court. Our decision is premised on the fact that Officer Eubank did not receive specific permission to enter the home but that, nonetheless, he did not unlawfully enter the dwelling.

Our concern in this case is officer safety. Melanie did not hesitate to call for police help in the early hours of the morning when defendant was committing acts of violence, and she did not hesitate to accept that help. In fact, she left the dwelling with the police officers, who took her to a safe haven where she would be protected from further violence. Despite the fact that she requested the pres[32]*32ence of the police officers and despite the fact that she invited Officer Tilton into the house, we are asked to conclude that Officer Eubank had no right to be in the house. We believe that he did. Once Melanie invited Officer Tilton into, the house, she also impliedly invited such backup officers as might be necessary to protect the safely of Officer Tilton.

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Cite This Page — Counsel Stack

Bluebook (online)
977 P.2d 276, 26 Kan. App. 2d 28, 1999 Kan. App. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kimberlin-kanctapp-1999.