State v. Mullen

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.
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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.
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"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.
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