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No. 102,749 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. RYAN POWELL, Appellant.

SYLLABUS BY THE COURT 1. The United States Supreme Court has held in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), that the use of evidence that is unlawfully obtained is generally admissible if law enforcement officers acted in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even if it is later determined that the magistrate erred and probable cause did not support the warrant.

2. In United States v. Leon, the Supreme Court considered whether the deterrent effect that normally justifies the exclusionary rule is likely to be realized under the particular factual circumstances found in the case. The Supreme Court concluded that the suppression of evidence obtained pursuant to a warrant should be ordered only on a caseby-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.

3. When a search occurs based upon a warrant, the exclusionary rule applies only if: (1) the magistrate was deliberately misled by false information when issuing the warrant; (2) the magistrate wholly abandoned the detached and neutral role required; (3) there was 1

so little indicia of probable cause in the affidavit that it would be entirely unreasonable for an officer to believe the warrant was valid; or (4) the warrant so lacked specificity that the officers could not reasonably presume it to be valid.

4. The legislature's use of broad language in K.S.A. 22-2502(a)(1) of "[a]ny things which have been used in the commission of a crime" and "any property which constitutes or may be considered a part of the evidence," gave the district court jurisdiction to issue a search warrant in this case for samples of the defendant's blood, hair, buccal cells, and fingerprints.

Appeal from Greenwood District Court; JOHN E. SANDERS, judge. Opinion filed June 24, 2011. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Joe E. Lee, county attorney, and Steve Six, attorney general, for appellant.

Before MALONE, P.J., PIERRON, J., and ARNOLD-BURGER, JJ.

PIERRON, J.: Ryan Powell appeals his convictions after a bench trial for one count of theft, a severity level 9 nonperson felony, in violation of K.S.A. 21-3701; one count of felony criminal damage to property, a severity level 9 nonperson felony, in violation of K.S.A. 21-3720; and one count of misdemeanor criminal damage to property, a class B nonperson misdemeanor, in violation of K.S.A. 21-3720. Powell challenges the district court's denial of his motion to suppress based on the United States v. Leon, 468 U.S. 887, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), good faith exception. We affirm.

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Powell was charged with burglary, theft, criminal trespass, two counts of felony criminal damage to property, and one count of misdemeanor criminal damage to property.

The district court held a bench trial on the following stipulated facts:
"1. Unauthorized control was obtained or exerted over a Greenwood County Sheriff's Department patrol unit on or about, July 22, 2007, with the intent to permanently deprive Greenwood County of the use or benefit of the patrol unit. The patrol unit was worth at least $1,000 but less than $25,000. This act occurred in Greenwood County, Kansas. "2. Said Greenwood County patrol unit was intentionally damaged, injured, mutilated, defaced, destroyed, or its use substantially impaired, by means other than by fire or explosion on, or about, July 22, 2007, without consent of the owner. The amount of damage was at least $1,000 but less than $25,000. This act occurred in Greenwood County, Kansas. The damages were consistent with the patrol unit being wrecked by the driver of the vehicle. Blood and tissue were found in the vehicle that were not present prior to the patrol unit being stolen. "3. Tires owned by Patrick Romans, and tires owned by Greenwood County, were intentionally damaged, injured, mutilated, defaced, destroyed, or their use substantially impaired, on or about November 22, 2007, by Ryan without consent of the owners. The amount of damages was less than $1,000. This act occurred in Greenwood County, Kansas. Kevin Sill and Cali Harber would testify that the defendant admitted to damaging the tires. "4. On or about September 13, 2007, a search warrant was executed to obtain a blood sample, hair sample, oral swab, and fingerprints from the defendant, Ryan Powell. Samples of said draws were sent to the Sedgwick County Regional Forensic Science Center for testing against samples of blood and tissue obtained from the stolen patrol unit. The conclusion of said testing was that the DNA profiles are consistent with the DNA profile of the defendant, and therefore the defendant cannot be excluded as the source of said profiles. The probability of selecting an unrelated individual at random from the Caucasian race who would exhibit a matching DNA profile is approximately 1 in 88.9 sextillion. The defendant does not have an identical twin. Detective Patrick

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Romans would testify that the defendant had denied ever being in the patrol unit at any time. "5. On or about December 8, 2008, counsel for the defendant filed a motion to quash warrant and suppress the results of the search warrant to obtain a blood sample, hair sample, oral swab, and fingerprints from the defendant. On or about December 23, 2008, the Court denied the defendant's motion."

The district court found that the application for the search warrant did not mention that there was blood and tissue found in the vehicle. Therefore, technically, the application did not state facts necessary to establish probable cause for the search warrant. However, the court found the Leon good faith exception applied, and the evidence was admitted.

After listening to the agreed-upon stipulation of facts, the district court found Powell guilty of one count of felony theft, one count of misdemeanor criminal damage to property, and one count of felony criminal damage to property. The court sentenced Powell to 6 months in prison for theft and granted 12 months' probation; 6 months in prison for felony criminal damage to property, to run concurrently, and granted 12 months' probation; and 6 months in the county jail, to run consecutively, for the misdemeanor criminal damage to property. The court stated that Powell would serve 60 days in jail and then the court would consider parole.

First, Powell argues the district court erred in applying the good faith exception under Leon, 468 U.S. at 922-26, in denying his motion to suppress. We disagree.

Generally, an appellate court reviews a district court's decision on a motion to suppress using a bifurcated standard. Without reweighing the evidence, the district court's factual findings are reviewed to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion regarding the suppression of evidence

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is reviewed using a de novo standard. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007).

In Leon, the Supreme Court held the use of evidence that was unlawfully obtained was allowed if officers acted in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even if it was determined later the magistrate erred and probable cause did not support the warrant. In so holding, the Supreme Court considered whether the deterrent effect that normally justified the exclusionary rule was likely to be realized under the particular factual circumstances found in the case. The Supreme Court concluded that "suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." 468 U.S. at 918.

The result in Leon was a determination that when a search occurred based upon a warrant, the exclusionary rule applied only if: (1) the magistrate was deliberately misled by false information when issuing the warrant; (2) the magistrate wholly abandoned the detached and neutral role required; (3) there was so little indicia of probable cause in the affidavit that it would be entirely unreasonable for an officer to believe the warrant was valid; or (4) the warrant so lacked specificity that the officers could not reasonably presume it to be valid. 468 U.S. at 923.

Kansas courts have repeatedly accepted the underlying principle in Leon, i.e., that a good faith exception to the exclusionary rule might be applicable if a search was conducted pursuant to a warrant that was later to be found lacking in probable cause, even though some cases disagree how to apply Leon's stated criteria. See State v. Hoeck, 284 Kan. 441, 455

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