State v. Mullen ( 2016 )


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  •                IN THE SUPREME COURT OF THE STATE OF KANSAS
    No. 110,468
    STATE OF KANSAS,
    Appellee,
    v.
    JORDAN A. MULLEN,
    Appellant.
    SYLLABUS BY THE COURT
    1.
    When a trial court chooses to address an issue not raised by the parties, an
    appellate court may address the issue as well.
    2.
    The Fourth Amendment to the United States Constitution guarantees the right to
    be free from unreasonable searches and seizures and states that "no Warrants shall issue,
    but upon probable cause, supported by Oath or affirmation." Section 15 of the Kansas
    Constitution Bill of Rights provides the same protections.
    3.
    When evidence is illegally obtained, its suppression may be warranted under the
    exclusionary rule, which is a judicially created rule that safeguards against
    unconstitutional searches and seizures by suppressing illegally seized evidence as a
    deterrent to future violations.
    1
    4.
    A judge deciding whether an affidavit supplies probable cause for a search warrant
    considers the totality of the circumstances presented and makes a practical, common-
    sense decision whether there is an adequate showing that a crime has been or is being
    committed and there is a fair probability that contraband or evidence of a crime will be
    found in a particular place.
    5.
    When an affidavit in support of an application for a search warrant is challenged,
    the task of the reviewing court is to ensure that the issuing magistrate had a substantial
    basis for concluding probable cause existed.
    6.
    An anticipatory warrant is a warrant based upon an affidavit showing probable
    cause that upon the happening of some future event (i.e., a triggering condition), certain
    evidence of a crime will be located at a specified place.
    7.
    For an anticipatory warrant to comply with the Fourth Amendment's requirement
    of probable cause, two prerequisites of probability must be satisfied: (1) If the triggering
    condition occurs, there is a fair probability that contraband or evidence of a crime will be
    found in a particular place; and (2) there is a fair probability that the triggering condition
    will occur. The supporting affidavit must provide the magistrate with sufficient
    information to evaluate both aspects of the probable cause determination.
    8.
    When an anticipatory search warrant covering a place is triggered upon the
    "controlled delivery" of contraband to that location, the means employed to deliver the
    2
    contraband must (1) be performed under the control and supervision of law enforcement
    officers and (2) establish a fair probability that the contraband will be found inside the
    location upon execution of the search warrant.
    Review of the judgment of the Court of Appeals in 
    51 Kan. App. 2d 514
    , 
    348 P.3d 619
    (2015).
    Appeal from Johnson District Court; JOHN E. BENNETT and JANICE RUSSELL, judges. Opinion filed April
    22, 2016. Judgment of the Court of Appeals is affirmed. Judgment of the district court is affirmed.
    Joanna Labistida, of Kansas Appellate Defender Office, argued the cause and was on the brief
    for appellant.
    Steven J. Obermeier, assistant district attorney, argued the cause, and, Stephen M. Howe, district
    attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
    The opinion of the court was delivered by
    ROSEN, J.: Jordan Mullen filed a motion to suppress evidence resulting from a
    search of a house where he was staying in Shawnee, Kansas. The search was conducted
    pursuant to an anticipatory search warrant which purported to give law enforcement
    authority to search the house once a suspicious package—addressed to the house in
    Shawnee and likely containing illegal drugs—was successfully delivered to a resident of
    the house. The district court denied Mullen's motion to suppress, concluding that the
    search warrant was supported by probable cause and that the event triggering the
    warrant's execution occurred when Mullen, under the surveillance of law enforcement,
    retrieved the package from the front porch and brought it inside the home. The Court of
    Appeals agreed and affirmed the district court's decision regarding the search warrant and
    its execution. See State v. Mullen, 
    51 Kan. App. 2d 514
    , 
    348 P.3d 619
    (2015). This court
    granted Mullen's petition for review challenging the Court of Appeals decision. We
    affirm.
    3
    FACTS
    On November 8, 2011, Steve Hahne, a detective with the special investigations
    unit of the Shawnee Police Department, prepared an affidavit in support of a search
    warrant for a home located in Shawnee, Kansas. Within the affidavit, Hahne stated the
    following pertinent facts:
    "1.    11/08/2011, the Affiant was contacted by Detective Shaun Miller of the Shawnee
    Police Department's Special Investigations Unit. Detective Miller was contacted
    on the telephone by United States Postal Inspector Justin Lewis. Postal Inspector
    Lewis reported while he was checking mail on today's date at the Kansas City,
    Missouri processing and distribution center located at 1700 Cleveland Ave., he
    saw a box addressed to a name that was un-readable at 5807 Meadowsweet Lane,
    Shawnee, Kansas. Inspector Lewis checks mail randomly in order to intercept
    contraband being delivered via United States Postal Service. The box weighs 5
    lbs. 12.6 ounces. The package originated from a U.S. Post Office located in
    Oakland, California. The return address on the package is also from Oakland,
    California. The Affiant knows through his training and experience that California
    is a source state of high grade marijuana as well as other illicit substances.
    "2.    A computer check revealed 5807 Meadowsweet Shawnee; Johnson County,
    Kansas is occupied by a David B. Grooms, w/m, 01/04/1967 and a Jacob R.
    Grooms, w/m, 06/05/1993.
    "3.    The parcel from the sort was placed with other unrelated parcels. Kansas City
    Missouri Police Officer Canine Handler Antonio Garcia directed K-9 Franz to
    the packages. Upon K-9 Franz coming into contact with the parcel, K-9 Franz sat
    alerting to the odor of narcotics in or about the parcel. The parcel was then taken
    into the custody of The Kansas City, Missouri Police Department, until a search
    warrant could be obtained.
    4
    "4.       K-9 Franz is a 7 year old German shepherd and is trained and certified to alert to
    the odors of marijuana, cocaine, methamphetamine, and heroin. K-9 Franz has
    assisted in the seizure of 4,641.4 pounds of marijuana, 75.8 pounds of cocaine,
    13 pounds of Methamphetamine, 23.3 pounds of Heroin, and $1,845,686.00 in
    U.S. currency.
    "5.       The Affiant knows that U.S. Postal Service Inspector Justin Lewis will attempt to
    deliver the package to a resident of 5807 Meadowsweet Lane, Shawnee, Johnson
    County, Kansas. Based on the successful controlled delivery to a resident, the
    Affiant is requesting permission to execute this warrant at 5807 Meadowsweet
    Lane, Shawnee, Johnson County, Kansas. Should the delivery not be made, this
    warrant will not be executed." (Emphasis added.)
    Based on these facts, a district court judge signed a search warrant for 5807
    Meadowsweet Lane, authorizing law enforcement to search the home for evidence of
    illegal drugs.
    That same day, Hahne, along with other members of the special investigations
    unit, set up a surveillance of the home. At approximately 1 p.m., Inspector Lewis, dressed
    as a mail carrier and driving a postal vehicle, arrived at the residence with the package.
    Lewis knocked on the front door and announced, "Post Office," but no one answered.
    After waiting about a minute, Lewis set the package down by the front door (the
    package's sender did not require a signature for delivery) and left in the postal vehicle. At
    1:06 p.m., an individual, later identified as Mullen, came out of the house through the
    front door, retrieved the package, and went back inside.
    At 1:17 p.m., law enforcement entered the home and found only Mullen inside the
    house. The package, still unopened, was lying on the kitchen countertop. Law
    enforcement opened the package and discovered marijuana inside (the Johnson County
    Crime lab later confirmed that the package contained 896.1 grams of marijuana). After
    5
    being apprised of his rights pursuant to Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    ,
    
    16 L. Ed. 2d 694
    (1966), Mullen told Hahne that he had recently begun staying at the
    house and had agreed to be there that day so he could bring the package inside the house
    once it arrived in the mail. Mullen was then supposed to watch over the package until one
    of three people (Alex Firth, Noah Schrader, or Jacob Grooms) arrived at the house to
    retrieve it. Mullen admitted to knowing that the package contained marijuana.
    Mullen was ultimately charged with possession of marijuana with the intent to
    distribute. Mullen filed a motion to suppress the marijuana as well as his statements to the
    police, arguing that the triggering event within the anticipatory search warrant (i.e., "the
    successful controlled delivery to a resident" of the home) required Lewis to hand deliver
    the package to a resident of the home. Mullen contended that because Lewis simply left
    the package on the front porch, a controlled delivery never occurred and, consequently,
    law enforcement acted in violation of the search warrant when they entered the home
    after Mullen retrieved the package.
    The State argued that a controlled delivery did occur because, once the postal
    inspector left the package on the front porch, the package remained under the constant
    surveillance of law enforcement until Mullen eventually brought the package inside the
    home. Thus, according to the State, law enforcement acted properly in executing the
    search warrant.
    At the hearing on the motion to suppress, Detective Hahne stated that the warrant's
    triggering event required that the package, while under the surveillance of law
    enforcement, be delivered to the home and that the package be taken inside the home by a
    resident. Though he had agreed with defense counsel's statement at Mullen's preliminary
    hearing that a "controlled delivery" would require handing the package to a resident of
    the home, Hahne indicated at the suppression hearing that a controlled delivery was
    6
    accomplished in this case when Mullen, under the law enforcement surveillance,
    retrieved the package from the front porch and brought it inside the home.
    At the conclusion of the hearing, the district court reserved ruling on whether a
    controlled delivery occurred and asked for supplemental briefing on whether probable
    cause to search a home for illegal drugs is established merely because a resident of the
    home brings a package—mailed to the residence and likely containing illegal drugs—into
    the home. At a subsequent hearing, the district court ruled that the search warrant was
    supported by probable cause and that law enforcement effected a controlled delivery of
    the package, reasoning that Mullen's retrieval of the package from the front porch while
    under police surveillance was sufficient to trigger execution of the search warrant.
    Later, Mullen agreed to a bench trial on stipulated facts while reserving his right to
    appeal the district court's denial of his motion to suppress. The district found Mullen
    guilty, imposed an underlying prison sentence of 22 months and placed him on probation
    for 18 months.
    On appeal, the Court of Appeals rejected Mullen's arguments concerning the lack
    of probable cause supporting the search warrant or that a controlled delivery never
    occurred. The Court of Appeals, however, found that the record failed to show that the
    district court advised Mullen of his right to a jury trial before he waived that right by
    signing the stipulation of facts. As a result, the Court of Appeals reversed Mullen's
    conviction and remanded the case for further proceedings. 
    Mullen, 51 Kan. App. 2d at 526
    . Mullen filed a petition with this court seeking review of the Court of Appeals
    decision affirming the denial of his motion to suppress. The State filed a cross-petition
    seeking review of the Court of Appeals decision concluding that Mullen's jury trial
    waiver was invalid. This court granted Mullen's petition for review but denied the State's
    cross-petition.
    7
    ANALYSIS
    Probable Cause for the Search Warrant
    Mullen argues that the Court of Appeals erred in concluding that the search
    warrant was supported by probable cause. He contends that without evidence showing
    that occupants of a particular home are involved in drug activity, the mere fact that an
    occupant brings a package—addressed to the residence and likely containing illegal
    drugs—inside the home does not provide probable cause to search the home for illegal
    drugs.
    Before the Court of Appeals, the State argued that Mullen should not be allowed
    to raise this argument on appeal because he failed to raise it before the district court. The
    State pointed out that Mullen's sole argument in favor of suppression was that the event
    triggering the warrant's execution, i.e., a controlled delivery of the package to a resident,
    never occurred. The Court of Appeals rejected the State's contention and addressed the
    merits of Mullen's probable cause argument, noting that the district court, in denying
    Mullen's suppression motion, addressed whether probable cause supported the
    anticipatory search warrant. 
    Mullen, 51 Kan. App. 2d at 519-20
    . We conclude that the
    Court of Appeals properly addressed the issue; likewise, we reach the merits of the issue.
    See Huffmier v. Hamilton, 
    30 Kan. App. 2d 1163
    , 1167, 
    57 P.3d 819
    (2002), rev. denied
    
    275 Kan. 964
    (2003) (when trial court chooses to address issue not raised by the parties,
    appellate court may address issue as well).
    The Fourth Amendment to the United States Constitution guarantees the right to
    be free from "unreasonable searches and seizures" and that "no Warrants shall issue, but
    upon probable cause, supported by Oath or affirmation." Section 15 of the Kansas
    Constitution Bill of Rights provides the same protections. State v. Daniel, 
    291 Kan. 490
    ,
    8
    498, 
    242 P.3d 1186
    (2010), cert. denied 
    563 U.S. 945
    (2011). When evidence is illegally
    obtained, its suppression may be warranted under the exclusionary rule, which is a
    judicially created rule that safeguards against unconstitutional searches and seizures by
    suppressing illegally seized evidence as a deterrent to future violations. See United States
    v. Leon, 
    468 U.S. 897
    , 906, 
    104 S. Ct. 3405
    , 
    82 L. Ed. 2d 677
    (1984); 
    Daniel, 291 Kan. at 496
    .
    A judge deciding whether an affidavit supplies probable cause for a search warrant
    considers the totality of the circumstances presented and makes "a practical, common-
    sense decision whether a crime has been or is being committed and whether there is a fair
    probability that contraband or evidence of a crime will be found in a particular place."
    State v. Hicks, 
    282 Kan. 599
    , 613-14, 
    147 P.3d 1076
    (2006). In Hicks, this court
    discussed an appellate court's role when reviewing a lower court's probable cause
    determination:
    "When an affidavit in support of an application for search warrant is challenged,
    the task of the reviewing court is to ensure that the issuing magistrate had a substantial
    basis for concluding probable cause existed. This standard is inherently deferential. It
    does not demand that the reviewing court determine whether, as a matter of law, probable
    cause existed; rather, the standard translates to whether the affidavit provided a
    substantial basis for the magistrate's determination that there is a fair probability that
    evidence will be found in the place to be searched. Because the reviewing court is able to
    evaluate the necessarily undisputed content of an affidavit as well as the issuing
    magistrate, the reviewing court may perform its own evaluation of the affidavit's
    sufficiency under this deferential standard." 
    282 Kan. 599
    , Syl. ¶ 2.
    In United State v. Grubbs, 
    547 U.S. 90
    , 
    126 S. Ct. 1494
    , 
    164 L. Ed. 2d 195
    (2006),
    the United States Supreme Court upheld the validity of anticipatory search warrants
    under the Fourth Amendment. The Court stated:
    9
    "An anticipatory warrant is 'a warrant based upon an affidavit showing probable cause
    that at some future time (but not presently) certain evidence of crime will be located at a
    specified place.' [Citation omitted.] Most anticipatory warrants subject their execution to
    some condition precedent other than the mere passage of time—a so-called 'triggering
    condition.' . . . If the government were to execute an anticipatory warrant before the
    triggering condition occurred, there would be no reason to believe the item described in
    the warrant could be found at the searched location; by definition, the triggering
    condition which establishes probable cause has not yet been satisfied when the warrant is
    
    issued." 547 U.S. at 94
    .
    The Grubbs Court then concluded:
    "[F]or a conditioned anticipatory warrant to comply with the Fourth Amendment's
    requirement of probable cause, two prerequisites of probability must be satisfied. It must
    be true not only that if the triggering condition occurs 'there is a fair probability that
    contraband or evidence of a crime will be found in a particular place,' [citation omitted]
    but also that there is probable cause to believe the triggering condition will occur. The
    supporting affidavit must provide the magistrate with sufficient information to evaluate
    both aspects of the probable-cause determination. [Citation 
    omitted.]" 547 U.S. at 96-97
    .
    See also United States v. Rowland, 
    145 F.3d 1194
    , 1201 (10th Cir. 1998) ("As with all
    warrants, probable cause to support an anticipatory warrant 'does not exist unless a
    sufficient nexus between the [contraband] and the place to be searched exists.' [Citation
    omitted.]").
    In Grubbs, officers from the Postal Inspection Service arranged a controlled
    delivery of a videotape containing child pornography to the defendant's residence. The
    defendant had ordered the videotape from a website operated by an undercover postal
    10
    inspector. The affidavit made out in support of the search warrant for the defendant's
    home stated:
    "'Execution of this search warrant will not occur unless and until the parcel has been
    received by a person(s) and has been physically taken into the residence. . . . At that time,
    and not before, this search warrant will be executed by me and other United States Postal
    inspectors, with appropriate assistance from other law enforcement officers in accordance
    with this warrant's 
    command.'" 547 U.S. at 92
    .
    In concluding that the search warrant was supported by probable cause, the Court
    stated:
    "[T]he occurrence of the triggering condition—successful delivery of the videotape to
    [the defendant's] residence—would plainly establish probable cause for the search. In
    addition, the affidavit established probable cause to believe the triggering condition
    would be satisfied. Although it is possible that [the defendant] could have refused
    delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore 'had
    a "substantial basis for . . . conclud[ing]" that probable cause existed.' [Citations
    
    omitted.]" 547 U.S. at 97
    .
    Mullen argues that Grubbs stands for the proposition that in order for an
    anticipatory search warrant of a home to be supported by probable cause, there must be
    evidence indicating that an occupant of the home anticipates receiving a package in the
    mail containing contraband. In support of this contention, Mullen points to a single
    sentence in Grubbs' statement of facts which states that the defendant "purchased a
    videotape containing child pornography from a Web site operated by an undercover
    postal 
    inspector." 547 U.S. at 92
    .
    Mullen places too much significance on this sentence. Nowhere in Grubbs' legal
    analysis did the Court point to or rely on evidence showing the defendant's knowledge or
    11
    intention of receiving child pornography through the mail as contributing to the probable
    cause necessary to issue an anticipatory search warrant of the defendant's residence.
    Instead, the Court focused solely on whether the affidavit made in support of the search
    warrant established a fair probability (i.e., probable cause) that contraband or evidence of
    a crime would be found inside the defendant's home once the triggering event occurred
    and whether there was a fair probability that the triggering event would occur. Because
    execution of the search warrant was contingent upon the government delivering the
    package—addressed to the defendant's home and containing child pornography—to the
    defendant's residence, the Court concluded that both prongs of the probable cause
    determination were 
    satisfied. 547 U.S. at 94-97
    .
    An argument similar to the one Mullen raises here was addressed and rejected by
    the Tenth Circuit Court of Appeals in United States v. Hugoboom, 
    112 F.3d 1081
    (10th
    Cir. 1997). There, the court concluded that an anticipatory search warrant of a residence
    was supported by probable cause when the affidavit made in support of the warrant
    merely alleged that a parcel containing contraband was mailed to the residence and that
    the warrant would not be executed until the parcel was delivered "to a responsible adult at
    the residence . . . who willingly 'accept[s] delivery' and signs a receipt 
    therefor." 112 F.3d at 1083
    . In reaching this holding, the Hugoboom court rejected the defendant's argument
    that the search warrant lacked probable cause because there was no evidence—besides
    the parcel being mailed to the residence—of drug activities taking place at the 
    location. 112 F.3d at 1086
    .
    The Tenth Circuit later fleshed out Hugoboom's holding in Rowland. There, the
    court stated:
    "As recognized in Hugoboom, when the warrant application indicates there will
    be a government-controlled delivery of contraband to the place to be searched, probable
    12
    cause for a search is established and an anticipatory warrant may be issued, provided the
    warrant's execution is conditioned on the contraband's delivery to, or receipt at, the
    designated place. [Citations omitted.] In this context, the Hugoboom court indicated that
    when the warrant affidavit refers to a controlled delivery of contraband to the place
    designated for search, the nexus requirement of probable cause is satisfied and the
    affidavit need not provide additional independent evidence linking the place to be
    searched to criminal activity." (Emphasis added.) 
    Rowland, 145 F.3d at 1202-03
    .
    See also United States v. Leidner, 
    99 F.3d 1423
    , 1427 (7th Cir. 1996) ("Several circuits
    agree that in order for an anticipatory warrant to satisfy the probable cause standard it
    must demonstrate that contraband is on a 'sure course' to the destination to be searched.").
    Similarly, in United States v. Lawson, 
    999 F.2d 985
    (6th Cir. 1993), the Sixth
    Circuit concluded that a controlled delivery of a package—mailed to the defendant's
    residence and containing 6 ounces of cocaine—provided probable cause to issue an
    anticipatory search warrant of the residence. Notably, the court rejected the argument that
    additional evidence connecting the residence with drug activity was needed in order to
    guard against an occupant being "set up" by unknowingly receiving contraband in the
    mail. The court reasoned "that one does not send six ounces of cocaine through the mail
    to a specific address on a 
    whim." 999 F.2d at 988
    . See also United States v. Washington,
    
    852 F.2d 803
    , 804 (4th Cir. 1988) (rejecting defendant's argument that delivery of
    package addressed to his residence and containing 154 grams of heroin did not provide
    probable cause for an anticipatory search warrant of his home; though neither the
    defendant nor his roommates were named on the package as the intended recipient, court
    reasoned that "[i]t is common knowledge that fictitious names are frequently used in
    illicit drug trafficking.").
    13
    The following facts can be gleaned from the affidavit at issue here:
    •      The package had been flagged as suspicious by a postal inspector at the
    Kansas City, Missouri, processing and distribution center;
    •      The package had been mailed from a known narcotics source state;
    •      The package was addressed to an illegible name at a house located on
    Meadowsweet Lane in Shawnee;
    •      The package weighed 5 lbs. 12.6 oz;
    •      A K-9 unit trained and certified to alert to the odors of marijuana, cocaine,
    methamphetamine, and heroin alerted on the package; and
    •      A search of the house on Meadowsweet Lane would not occur until a
    controlled delivery of the package to a resident of the house was
    accomplished.
    These facts establish a fair probability that the package—addressed to the
    residence on Meadowsweet Lane—contained illegal drugs and, thus, constituted evidence
    of an illegal drug trafficking scheme. Cf. State v. Barker, 
    252 Kan. 949
    , 959-60, 
    850 P.2d 885
    (1993) (A K-9 alert may supply probable cause necessary to search a vehicle as long
    as there is some evidence that K-9's behavior reliably indicates the likely presence of a
    controlled substance.). Further, the search warrant's triggering event—the controlled
    delivery of the package to a resident of the house—would establish a fair probability that,
    upon execution of the search warrant, contraband or evidence of a crime would be found
    inside the house. Additionally, the affidavit established probable cause to believe that the
    triggering event—a controlled delivery to a resident of the house, effected by a postal
    inspector—would be satisfied. Thus, we conclude that the affidavit provided a substantial
    basis for the district court judge's determination that probable cause supported a search
    warrant of the home.
    14
    The Controlled Delivery
    Mullen argues that the search warrant was not validly executed because the
    triggering event—a successful controlled delivery to a resident of the home—did not
    occur. Mullen contends that in order to accomplish a controlled delivery, Inspector Lewis
    was required to hand deliver the package to a resident of the home.
    Whether the undisputed facts of this case establish that a controlled delivery was
    accomplished appears to raise a question of law subject to unlimited review. See State v.
    James, 
    301 Kan. 898
    , 908, 
    349 P.3d 457
    (2015) ("When the material facts are not in
    dispute, as here, we will exercise plenary review of the district court's ruling on a motion
    to suppress evidence."). Relevant to this inquiry are the guiding principles stated in Hicks
    for determining whether an affidavit establishes probable cause for a search warrant:
    "When an affidavit in support of an application for search warrant is challenged,
    the task of the reviewing court is to ensure that the issuing magistrate had a substantial
    basis for concluding probable cause existed. This standard is inherently deferential. It
    does not demand that the reviewing court determine whether, as a matter of law, probable
    cause existed; rather, the standard translates to whether the affidavit provided a
    substantial basis for the magistrate's determination that there is a fair probability that
    evidence will be found in the place to be searched. Because the reviewing court is able to
    evaluate the necessarily undisputed content of an affidavit as well as the issuing
    magistrate, the reviewing court may perform its own evaluation of the affidavit's
    sufficiency under this deferential standard." (Emphasis added.) 
    282 Kan. 599
    , Syl. ¶ 2.
    To support his argument that a controlled delivery requires a hand-to-hand
    delivery, Mullen points to two Kansas cases: State v. Duhon, 
    33 Kan. App. 2d 859
    , 861,
    
    109 P.3d 1282
    (2005), and State v. Windes, 
    13 Kan. App. 2d 577
    , 578-79, 
    776 P.2d 477
    (1989). While both cases describe, within their respective statement of facts, a controlled
    delivery occurring when a package was directly handed to each defendant, the State
    15
    correctly responds that "neither case addressed whether a hand-to-hand delivery was the
    only method through which a controlled delivery could be completed."
    In determining how a controlled delivery is accomplished, the Court of Appeals
    panel in this case looked to the United States Supreme Court's discussion of the subject in
    Illinois v. Andreas, 
    463 U.S. 765
    , 
    103 S. Ct. 3319
    , 
    77 L. Ed. 2d 1003
    (1983). There, the
    Court stated:
    "The lawful discovery by common carriers or customs officers of contraband in
    transit presents law enforcement authorities with an opportunity to identify and prosecute
    the person or persons responsible for the movement of the contraband. To accomplish
    this, the police, rather than simply seizing the contraband and destroying it, make a so-
    called controlled delivery of the container to its consignee, allowing the container to
    continue its journey to the destination contemplated by the parties. The person dealing in
    the contraband can then be identified upon taking possession of and asserting dominion
    over the container.
    "The typical pattern of a controlled delivery was well described by one court:
    'Controlled deliveries of contraband apparently serve a useful
    function in law enforcement. They most ordinarily occur when a carrier,
    usually an airline, unexpectedly discovers what seems to be contraband
    while inspecting luggage to learn the identity of its owner, or when the
    contraband falls out of a broken or damaged piece of luggage, or when
    the carrier exercises its inspection privilege because some suspicious
    circumstance has caused it concern that it may unwittingly be
    transporting contraband. Frequently, after such a discovery, law
    enforcement agents restore the contraband to its container, then close or
    reseal the container, and authorize the carrier to deliver the container to
    its owner. When the owner appears to take delivery he is arrested and the
    container with the contraband is seized and then searched a second time
    for the contraband known to be there.' United States v. Bulgier, 
    618 F.2d 472
    , 476 (7th Cir. 1980), cert. denied 
    449 U.S. 843
    (1980)."
    
    Andreas, 463 U.S. at 769-70
    .
    16
    At issue in Andreas was whether police needed to secure a search warrant to
    reopen a container—addressed to the defendant and, based on a lawful search, known to
    contain marijuana—that undercover law enforcement officers had delivered to the
    defendant's apartment. Officers later seized the container when they arrested the
    defendant upon seeing him leave his apartment with the container 30 to 45 minutes after
    the delivery. The container was taken to the police station and reopened without police
    first obtaining a search 
    warrant. 463 U.S. at 767-68
    .
    An Illinois appellate court affirmed the district court's suppression of the
    marijuana found inside the container. The court reasoned that the officers had failed to
    effect a "'controlled delivery'" of the container which, in the court's view, required the
    officers to maintain "'dominion and control' over the container at all 
    times." 463 U.S. at 768
    . Because the container was out of the officers' sight for 30 to 45 minutes while inside
    the defendant's apartment, the officers could not be "'absolutely sure'" that its contents
    had remained unchanged. Thus, the police were required to obtain a search warrant in
    order to reopen the container at the police 
    station. 463 U.S. at 768
    .
    The Supreme Court rejected the notion that police had to obtain a warrant in order
    to reopen the container. In reaching this conclusion, the Court reasoned that
    "the rigors and contingencies inescapable in an investigation into illicit drug traffic often
    makes 'perfect' controlled deliveries and the 'absolute certainty' demanded by the Illinois
    court impossible to attain. Conducting such a surveillance undetected is likely to render it
    virtually impossible for police so perfectly to time their movements as to avoid detection
    and also be able to arrest the owner and reseize the container the instant he takes
    possession. Not infrequently, police may lose sight of the container they are trailing, as is
    the risk in the pursuit of a car or vessel." 
    Andreas, 463 U.S. at 772
    .
    17
    The Court of Appeals acknowledged that while Andreas did not directly answer
    the question of what constitutes a controlled delivery, the case indicated
    "that what makes [a] delivery a controlled delivery is that it was performed under the
    control and supervision of law enforcement officers. This interpretation is supported by
    numerous cases discussing a controlled delivery where hand-to-hand contact was not
    required. For example, in State v. Bierer, 
    49 Kan. App. 2d 403
    , 405-06, 
    308 P.3d 10
    , rev.
    denied 
    298 Kan. 1204
    (2013), a postal inspector contacted the police about a suspicious
    package he believed contained drugs. After a K-9 unit alerted to the package for
    narcotics, a controlled delivery of the package was arranged. The postal inspector
    knocked on the door of the house; however, when no one responded, he left the package
    at the front door. Later, Bierer arrived and took the package from the front door and
    placed it in his vehicle. The panel referred to this as a controlled delivery. Bierer, 49 Kan.
    App. 2d at 413; see 
    Rowland, 145 F.3d at 1204
    (delivery to a post office box was a
    controlled delivery); United States v. Fadipe, 
    43 F.3d 993
    , 994 (5th Cir. 1995) (delivery
    to the mail box at an apartment complex was a controlled delivery).
    "The dominant feature in the cases discussing controlled deliveries is that the
    delivery is supervised by police officers, meaning police exercise control over when and
    how the delivery occurs. Delivery of a controlled substance is defined in K.S.A. 2011
    Supp. 65-4101(g) as 'the actual, constructive or attempted transfer from one person to
    another of a controlled substance, whether or not there is an agency relationship.' This
    appears to be what occurred in this case." 
    Mullen, 51 Kan. App. 2d at 522-23
    .
    The panel's reasoning that a "controlled delivery" does not require law
    enforcement to employ a specific method of conveyance (e.g., handing the package to a
    resident versus leaving the package on the porch or in the mailbox for a resident to pick
    up) is sound. The cases cited by the panel, along with the standard applicable for
    reviewing a search warrant, see Hicks, 
    282 Kan. 599
    , Syl. ¶ 2, indicate that as long as the
    means employed to deliver contraband to the site of an anticipatory search warrant was
    (1) performed under the control and supervision of law enforcement officers and (2)
    18
    establishes a fair probability that the contraband will be found within the site upon
    execution of the warrant, then the delivery will be considered a "controlled delivery."
    Here, the affidavit indicated that Inspector Lewis would perform a controlled
    delivery of the package to a resident of the Meadowsweet Lane house. Lewis, while
    under the surveillance of Shawnee police officers, approached the house to deliver the
    package. He knocked on the door and yelled, "Post Office," but no one answered the
    door. After waiting a minute, Lewis left the package at the front door of the house as the
    package sender had authorized. While the package was under police surveillance, Mullen,
    a presumptive resident of the home, opened the front door, picked up the package, and
    took it inside the home.
    These facts establish that a controlled delivery of the package to a resident of the
    home was accomplished. The method used to deliver the contraband (i.e., leaving the
    package at the front door and a resident, in turn, retrieving it) was performed under the
    control and supervision of law enforcement officers. Here, the method used to deliver the
    contraband established a fair probability that the contraband would be found inside the
    house. We conclude that the event triggering execution of the search warrant, i.e., a
    controlled delivery of the package to a resident of the home, occurred in this case and that
    the police acted appropriately when they entered the home pursuant to the search warrant.
    The Court of Appeals correctly affirmed the district court's ruling denying
    Mullen's motion to suppress.
    19