KS: Trash pull lacked nexus to house; buying fertilizer not PC for a grow operation

Officers did a trash pull because a person living at the target address bought “perlite soil conditioner and liquid fertilizer from the Green Circle Garden Center.” (They were running LPNs of people buying that stuff.) In the trash bags was marijuana residue in one and mail for the same address but a different person in the other. A search warrant issued, and the search was suppressed. On appeal, suppression was affirmed. The affidavit was bare bones and showed no nexus, and the good faith exception would not be applied to a bare bones affidavit. Also, the state raised the GFE on reconsideration, which was disapproved, but it was considered anyway. State v. Malone, 2014 Kan. App. LEXIS 24 (April 18, 2014):

We agree with the district court’s conclusion on this point. When it comes to trash pulls, if a search warrant is to be issued, the general rule requires some evidence connecting the drug evidence discovered in a trash bag and the residence to be searched. For example, in Hicks, 282 Kan. at 616-17, the court found evidence obtained from two trash pulls insufficient to support probable cause where:

• The officer’s affidavit stated without explanation that the bags were seized from the “normal place” where Hicks placed his trash;
• the affidavit did not state whether the bags contained indicia of residency; and
• the affidavit did not indicate whether anyone saw Hicks place the bags in the trash area.

The Hicks court noted the requirement of establishing a sufficient connection between the trash and the residence has been consistently applied by this court as well. 282 Kan. at 617.

. . .

In our view, there is no connection between the residence and the contraband that is sufficient to support the issuance of a search warrant. Not only was the mail found separately from the contraband, but the mail was not addressed to Mai Lin—the only person shown to have a connection to the garden center purchase and to Malone. Anyone could have passed by the Troost residence and thrown the bag containing contraband into the trash can. Stein’s affidavit did not indicate that anyone saw Malone or another resident of the Troost house place the bags in the can, and there is no indication that more than one trash pull was conducted during this investigation.

. . .

Additionally, two other items are troubling at this point. First, Stein’s affidavit provided no information regarding the identity of the person who allegedly made the garden center purchases—other than it was a male driving a vehicle registered to a person listed as residing at the Troost residence. No physical description of the buyer was given that established any similarity between the buyer and Malone. Also, the affidavit provided no explanation about why a single purchase of soil conditioner and liquid fertilizer might be indicative of marijuana cultivation at this residence.

. . .

We question whether the good-faith exception can apply under these facts. Detective Stein, the affiant who obtained this search warrant, along with other officers, executed the search. Stein knew he had no evidence linking the contraband with the residence. In the affidavit, Stein acknowledged that he found the contraband in a different bag than the bag with the indicia of residency. Since Stein offered no other information that would link the trash bags to the Troost residence, we conclude he knew of no other evidence linking the two. For example, Stein did not say he saw Malone or another resident of the Troost house place the bags in the can. Stein did not indicate he conducted multiple trash pulls finding contraband each time. Stein did not indicate he had been conducting surveillance of the Troost house. Stein simply indicated that the trash bags were found at the curb near the Troost residence. If he had any additional knowledge he certainly did not share it with the judge who issued the search warrant.

Application of the good-faith exception presumes the law enforcement officer involved in a particular case has a reasonable knowledge of what the law prohibits. “‘Grounding the modification [of the exclusionary rule] in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment. [Citation omitted.]'” Leon, 468 U.S. at 919 n.20; see Althaus, 49 Kan. App. 2d at 222.