IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 91,042,

91,120

STATE OF KANSAS,

Appellee,

v.

CRYSTAL KAY SWINNEY,

Appellant.

STATE OF KANSAS,

Appellee,

v.

JAMES LEON RICH, II,

Appellant.

SYLLABUS BY THE COURT

1. On appeal of a district court decision on a motion to suppress evidence, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusions drawn from the facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the propriety of the suppression of evidence is a legal question requiring independent appellate review.

2. The open fields doctrine, first enunciated by the United States Supreme Court in Hester v. United States, 265 U.S. 57, 68 L. Ed. 898, 44 S. Ct. 445 (1924), is interpreted and applied. On the facts of this case, any potential error in extending the doctrine to permit a warrantless entry into and search of a shed standing in an open field was harmless.

3. The evidence presented in this case, when viewed in the light most favorable to the State, was sufficient to convince a rational jury that the defendants were guilty beyond a reasonable doubt.

4. On the facts of this case, the defendants are not entitled to new trials because of prosecutorial misconduct.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 23, 2004. Appeal from Pratt district court; ROBERT J. SCHMISSEUR, judge. Judgment of the Court of Appeals affirming the convictions, vacating the sentences, and remanding for resentencing by the district court is affirmed. Judgment of the district court is affirmed in part, vacated in part, and remanded with directions. Opinion filed February 3, 2006.

John Val Wachtel, of Klenda, Mitchell, Austerman & Zuercher, L.L.C., of Wichita, argued the cause, and Roger L. Falk, of the Law Office of Roger L. Falk & Associates, P.A., of Wichita, and Christopher L. Hughes, of the same firm, were with him on the briefs for appellants.

Ernest H. Richardson, county attorney, argued the cause, and Julie A. Funk, special county prosecutor, of Dodge City, and Phill Kline, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by

BEIER, J.: The defendants, Crystal Swinney and James Leon Rich, II, appeal their convictions of manufacturing methamphetamine, possession of methamphetamine, possession of pseudoephedrine with the intent to manufacture methamphetamine, and possession of drug paraphernalia with the intent to manufacture methamphetamine. Their appeals were consolidated before the Court of Appeals, which affirmed the defendants' convictions but vacated their sentences for manufacturing methamphetamine and remanded for resentencing on those counts under State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). State v. Swinney, Nos. 91,042, 91,120, unpublished opinion filed December 23, 2004.

On petition for review to this court, the defendants raise the following challenges to their convictions: (1) Their motions to suppress should have been granted; (2) there was insufficient evidence to support their convictions; and (3) the prosecutor committed reversible misconduct during questioning of witnesses and closing argument.

The defendants also have filed "Motions to Stay Proceedings and Remand for Resentencing." This opinion makes these motions moot and they are, therefore, denied.

The defendants' legal difficulties began when two boys discovered what they believed to be a methamphetamine laboratory while hunting. The boys found a barrel containing two bottles beside a shed. One of the bottles was smoking, and the other was coated with a white residue. The boys also smelled ether.

One of the boys informed his uncle, Steve Holmes, of the discovery. Holmes happened to be a detective with the Pratt County Police Department, and he was under the impression that the land on which the barrel and shed stood belonged to the other boy's family. The same day, Holmes called the Pratt County Sheriff's Department and met Detective Jeff Ward and Deputy Mark Holloway at the site of the barrel and the shed.

The officers observed a dilapidated shed near an old chicken house and abandoned cars. The shed had a hole in its roof; its side door was open; and its garage-type door was off its track. The officers found the barrel and observed the bottles, which they determined were gassing generators used in manufacturing methamphetamine.

At that point, the officers decided to conduct random surveillance of the site and sought permission from the family they believed to be the owner of the land. For several days, the officers made intermittent visits to the site but failed to apprehend the manufacturers. They were able to determine, however, that the lab was an ongoing operation because some of the drug paraphernalia at the site was moved around from one visit to the next.

Finally, Holloway visited the site again and reported to Ward that he had entered the shed and found two pitchers of "meth oil." The officers then elected to begin constant surveillance, which paid off approximately 15 minutes later, when a red Pontiac approached the shed. The officers then saw two persons, later identified as defendant Rich and Ricky Rodriguez, exit the car, enter and leave the shed, and return to the car.

At this point, the officers emerged from their hiding places and ordered everyone out of the car. Rich yelled, "Drive, drive, go, go, go," but the car did not move. Ward apprehended the driver, defendant Swinney; and Holloway apprehended the passengers, Rich and Rodriguez. Swinney and Rich, who were in the front seat, each had a pitcher of meth oil. Rodriguez, in the back seat, had a container of Morton salt at his feet, as well as several bottles, tubing, and a backpack "that contained a yellow container full of a clear liquid that tested as acid."

Rich informed the officers that he owned the land on which the shed stood. When the officers learned that the ownership of the property differed from their original understanding, they obtained a search warrant.

Swinney and Rich filed motions to suppress. They argued that the land was not owned by the family from whom the officers sought permission for random surveillance. The State countered that the officers' behavior was permitted by the open fields doctrine. The district court denied the defendants' motions.

Swinney, Rich, and Rodriguez were tried together. Rich testified. He claimed that he, Swinney, and Rodriguez had gone to the shed on the day of their arrests because he had received a phone call warning him there was unspecified "stuff" at the site that could get him in trouble. The defendants took the position at trial that they were unaware of the illegal character of the lab and its various items of equipment and materials.

During cross-examination of Rich and during the questioning of a rebuttal witness, the prosecutor attempted to inject evidence of other drug activity by Rodriguez. Rodriguez had admitted to methamphetamine use in probation revocation proceedings after an earlier conviction. The record reveals that the district judge sustained at least three defense objections to introduction of this evidence, as well as admonishing the prosecutor about forcing a mistrial no fewer than three times.

Rich's father, James Rich ("Rich Senior"), also testified. He said that the land on which the shed stood belonged to his family and that he had stored antiques in the shed in the past. Rich Senior also said he had experienced a problem with trespassers on the land and had attempted unsuccessfully to involve police in solving the problem. Because of this past police inaction, he said, he had not recently reported trespassers at the site. He further testified that he had visited the site "maybe twice" the previous year.

During closing argument, the prosecutor stated that no evidence had been brought forward to controvert the allegation that Swinney had knowledge of methamphetamine.

On appeal to the Court of Appeals, Swinney and Rich argued that their motions to suppress should have been granted because the officers lacked a search warrant; the defendants had a reasonable expectation of privacy in the area searched; and any evidence obtained after the initial illegal entry constituted fruit of the poisonous tree. A majority of the Court of Appeals panel determined that the search of the property was legal pursuant to the open fields doctrine. Thus, the fruit of the poisonous tree rule was inapplicable.

Judge Richard Greene dissented from the portion of the majority's decision approving the officers' entry into and search of the shed, considering it an "unwarranted extension of the 'open fields' exception to Fourth Amendment protections." Swinney, slip op. at D-1. He wrote:

"Neither the State nor the majority has cited authority to suggest that an enclosed structure, albeit in poor or run-down condition, may be entered and searched without Fourth Amendment protection, merely because it is located within an 'open field,' especially where the person claiming protection asserts a reasonable expectation of privacy in the location. In fact, the entire stated rationale for the exception is notably inapplicable to structures standing on 'open fields.'" Slip op. at D-3 (Greene, J., dissenting).

On appeal of a district court decision on a motion to suppress evidence, the appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusions drawn from the facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the propriety of the suppression of evidence is a legal question requiring independent appellate review. State v. Vandevort, 276 Kan. 164, 169, 72 P.3d 925 (2003).

Before this court, Swinney and Rich agree with Judge Greene's dissent but cite no case law to support the argument that their motions to suppress should have been granted because the police officers' warrantless entry and search of the shed was an impermissible extension of the open fields doctrine.

The open fields doctrine, which provides an exception to the search warrant requirement of the Fourth Amendment was first recognized by United States Supreme Court in Hester v. United States, 265 U.S. 57, 59, 68 L. Ed. 898, 44 S. Ct. 445 (1924), which held that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields."

Sixty years later, the Court clarified the open fields doctrine in Oliver v. United States, 466 U.S. 170, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984). The Oliver decision arose out of two cases involving similar facts.

In the first case, Kentucky police officers found a marijuana field approximately 1 mile from defendant Ray E. Oliver's home, and the federal district court determined Oliver had a reasonable expectation of privacy in the area of the farm that had been searched. According to the district court, Oliver "'had done all that could be expected of him to assert his privacy in the area of farm that was searched.'" 466 U.S. at 173. The Sixth Circuit Court of Appeals reversed, and the Supreme Court granted certiorari.

In the second case, Maine police officers discovered two marijuana patches surrounded by chicken wire in the woods behind defendant Richard Thornton's home. The state trial court granted Thornton's motion to suppress, noting that Thornton had posted "No Trespassing" signs and that "the secluded location of the marijuana patches evinced a reasonable expectation of privacy." 466 U.S. at 175. The Maine Supreme Judicial Court affirmed, and the Supreme Court granted certiorari.

The justices voted 6-3 against suppression, stating the Court's 1924 Hester decision "was founded upon the explicit language of the Fourth Amendment. That Amendment indicates with some precision the places and things encompassed by its protections." Oliver, 466 U.S. at 176. The Court further stated its interpretation was consistent with the right to privacy concept extant in Fourth Amendment jurisprudence.

"Since Katz v. United States, 389 U.S. 347[, 19 L. Ed. 2d 576, 88 S. Ct. 507] (1967), the touchstone of Fourth Amendment analysis has been the question whether a person has a 'constitutionally protected reasonable expectation of privacy.' [Citation omitted.] The Amendment does not protect the merely subjective expectation of privacy, but only those 'expectation[s] that society is prepared to recognize as "reasonable."' [Citations omitted.]" Oliver, 466 U.S. at 177.

The Court contrasted those areas in which a person has an expectation of privacy with open fields, which "do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields." 466 U.S. at 179. The Court held that open fields were, as a practical matter, accessible to the public and the police in ways a home, an office, or commercial structure would not be; nor do fences or "no trespassing" signs effectively bar the public from viewing open fields. 466 U.S. at 179. Moreover, "the public and the police lawfully may survey the lands from the air. For these reasons, the asserted expectation of privacy in open fields is not an expectation that 'society recognizes as reasonable.'" 466 U.S. at 179. In short, "from the text of the Fourth Amendment and from the historical and contemporary understanding of its purposes, . . . an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers." 466 U.S. at 181.

The Oliver decision also cautioned that a mere case-by-case analysis would fail to arrive at workable accommodations between the needs of law enforcement and Fourth Amendment interests. 466 U.S. at 181-82. And a purely subjective inquiry into whether a particular individual attempted to conceal what he or she asserted as a "private" activity would be insufficient. 466 U.S. at 182. Rather, the Court said the correct question would be "whether the government's intrusion infringes upon the personal