FACTS
Just before midnight on March 26, 2002, the Sedgwick County Sheriff’s Department received information from a confidential informant that Brandon Prouse was trying to sell the informant 5 or 6 quarts of anhydrous ammonia. Deputies ran a background check on Prouse and discovered that he was wanted on a felony arrest warrant for a probation violation in an aggravated battery case. At around 1:30 a.m. on March 27, 2002, the sheriff’s office began surveillance on the house where the informant indicated Prouse might be found. At the time of the surveillance, however, the deputies neither had a search warrant for the house, nor did they know who owned the residence.
At about 2 a.m., Prouse stepped out of the house and walked into the front yard. The uniformed deputies ordered him to stop, but Prouse ran back into the residence through the front door. Four deputies followed Prouse inside. They pursued Prouse through different rooms and then arrested him.
Inside the house, the deputies smelled a strong odor of anhydrous ammonia. As they moved through the residence, the deputies saw in plain view various items that they believed were consistent with a methamphetamine lab. Besides Prouse, the deputies discovered six other individuals inside the house, including Thomas, who owned the residence. A deputy started to open an interior door into the garage to check for more people, but the smell of anhydrous ammonia from the garage was so overwhelming that he immediately shut the door. Because of the strong chemical smell and for safety reasons, the deputies ordered all occupants to go outside onto the front lawn area.
Once the occupants of the house were outside, one of the deputies told his fellow deputies that he would perform a pat-down search of the seven occupants. When the deputy asked Thomas who owned the house, Thomas admitted ownership. During the pat-down search, Thomas said, “You might as well get [my] dope,” and indicated that he had methamphetamine in his left front pants pocket. The deputy reached into Thomas’ pocket and pulled out a bag containing smaller baggies filled with white rocks. Thomas was then placed under arrest.
At the sheriff’s office, a detective started to Mirandize Thomas when Thomas interrupted and said “that wasn’t necessary” because both the methamphetamine lab and the drugs found on his person belonged to him. The detective proceeded to Mirandize Thomas, but Thomas refused to sign the waiver form. Despite Thomas’ refusal to sign the form, he orally indicated that he was willing to speak with the officers. Thomas, again, admitted ownership of the methamphetamine lab in his house and the drugs found on his person. Thomas told the officers that he learned how to make methamphetamine in prison. He indicated that this was his first attempt at manufacturing methamphetamine and that, sometime before the deputies’ arrival at his house, the lab had blown up. In addition, Thomas admitted that he had obtained anhydrous ammonia and a large quantity of pseudoephedrine pills.
ANALYSIS
Thomas contends that the district court should have granted his motions to suppress his statements and the evidence found in his house. Before trial, Thomas moved to suppress the evidence seized by the deputies on the night of his arrest and also to suppress his incriminating statements on the basis that they were not made pursuant to a knowing and voluntary waiver of his rights. However, in his direct appeal and in his petition for review, Thomas briefed only the issue involving the deputies’ entry into his house without a warrant while following Prouse. Thus, the entry issue is the only one properly before this court. See State v. Brown, 272 Kan. 843, 844, 35 P.3d 910 (2001) (an issue which is not briefed is deemed abandoned).
Regarding the constitutionality of the deputies’ entry into his home, Thomas argues that the arrest warrant upon which the deputies based their chase of Prouse did not authorize their entry without a search warrant into the home of a third party. Further, Thomas contends there were no exigent circumstances to support the entry.
Thomas’ arguments raise an issue of first impression: Does the Fourth Amendment to the United States Constitution or § 15 of the Kansas Constitution Bill of Rights prohibit the entry of law enforcement officers into a home when officers are in hot pursuit of the subject of a felony arrest warrant who has fled from a public area into the house, even though the arrestee does not own or reside in the house, and even though the officers do not have a search warrant for the house? To examine this narrow issue we will look at the decisions regarding the warrant requirement and exceptions to that requirement and then examine Thomas’ arguments regarding the specific circumstances of this case.
B. Warrant Requirement and Exceptions
- Third Party’s House
An arrest warrant, standing alone, is not a sufficient basis to enter the home of a third party. The United States Supreme Court reached this holding in Steagald v. United States, 451 U.S. 204, 68 L. Ed. 2d 38, 101 S. Ct. 1642 (1981). In Steagald, a confidential informant contacted an agent of the Drug Enforcement Administration, suggesting he might be able to locate Ricky Lyons, a federal fugitive wanted on drug charges. Agents found the address where they thought Lyons was located and, 2 days later, drove to the residence. Gary Steagald and Hoyt Gaultney stood outside of the house. After the agents frisked the two men and discovered that neither man was Lyons, they went to the front door. Gaultney’s wife answered the door and told the agents she was alone. The agents proceeded, without consent, into the house and searched for Lyons. Although they did not find Lyons, the agents found cocaine. They subsequently obtained a search warrant, and ultimately found 43 pounds of cocaine. Steagald was arrested on federal drug charges.
The Supreme Court stated that the agents had neither consent nor exigent circumstances when they made their initial, warrantless search. 451 U.S. at 211. The Court phrased its narrow issue for consideration as “whether an arrest warrant - as opposed to a search warrant - is adequate to protect the Fourth Amendment interests of persons not named in the warrant, when their homes are searched without their consent and in the absence of exigent circumstances.” 451 U.S. at 212. The Steagald Court recognized that different interests are protected by arrest warrants and search warrants. Arrest warrants protect individuals from unreasonable seizures; search warrants protect against the unjustified intrusion of police into one’s home. The Court found that the agents wrongly relied on Lyon’s arrest warrant to give them the legal authority to enter into a third person’s home. Thus, the third person’s privacy interests were left unprotected. 451 U.S. at 213.
The Steagald Court feared that allowing officers, without consent or exigent circumstances, to enter into a third party’s residence to search for the subject of an arrest warrant “would create a significant potential for abuse” and pointed out that officers would then be able to use arrest warrants as a pretext for entering the residences of a suspect’s friends and acquaintances or as a pretext for entering residences in which police have mere suspicion, not probable cause, that illegal activity is being committed. The Court held that, under the facts of the case, the warrantless search was unconstitutional. 451 U.S. at 215-16.
However, the United States Supreme Court was careful to exempt two circumstances from its holding: consent and exigent circumstances. 451 U.S. at 212. In this case, the State does not allege there was consent. Rather, the State relies upon exigent circumstances, an argument adopted by the Court of Appeals.
Thus, although it was not the specific issue before the Court, the Steagald decision recognizes the constitutionality of an entry into the home of a third party when officers are in pursuit of a suspect who is first approached in a public area. See 451 U.S. at 217-18.
At least one court has applied the hot pursuit doctrine when the subject of an arrest warrant was pursued into the home of a third party. In United States v. Williams, 2004 U.S. Dist. LEXIS 13884, 2004 WL 1637021, unpublished opinion filed July 20, 2004 (S.D.N.Y.), officers went to a third party’s apartment after receiving an anonymous tip that Rossi Graham could be found there. There was an outstanding warrant for Graham’s arrest based on his assault of a pregnant woman with a hot iron. Officers positioned themselves at both the front door and back door of the apartment. When one officer knocked at the front door and identified himself as a police officer, the police heard someone running inside the apartment. A man who resembled Graham peeked his head outside the back door, stuck it back inside, and yelled, “Oh, shit.” He shut and locked the back door. 2004 WL 1637021, at *1.
The officers then entered the apartment and detained three individuals, one of whom was Larry Williams, inside. During their protective sweep, the officers saw narcotics in plain view. Williams and the others were arrested. Although it was later discovered that the man they pursued was not Graham, the officers’ entry into the apartment was upheld. The federal district court, citing Steagald and Santana, held that the warrantless entry into the apartment was justified under the “hot pursuit” doctrine. The Williams court concluded:
“Because the officers’ entry into the Prince Street Apartment after the individual whom they reasonably believed to be Rossi Graham retreated into the house was justified under the doctrine of hot pursuit, the evidence seized from the Prince Street Apartment that was in plain view, will not be suppressed.” 2004 WL 1637021, at *3.
Even stronger than the situation in Williams, the deputies in this case identified the suspect. As in Williams, the deputies entered into the house to arrest the suspect and found criminal evidence in plain view.
We agree with the Williams court’s analysis. Although none of the United States Supreme Court cases directly answer the issue before us, the careful carving of the hot pursuit doctrine from the holding in Steagald indicates the Court would recognize an exception to the search warrant requirement when the subject of an arrest warrant is approached by law enforcement officers in a public place and pursued into the home of a third party.
C. Application of Hot Pursuit Doctrine
Without specific discussion of the hot pursuit exception, Thomas contends there were no exigent circumstances and cites to the list of factors this court has recognized which may be considered in determining if exigent circumstances existed, including:
“(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause; (4) strong reasons to believe that the suspect is in the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended and (6) the peaceful circumstances of entry.” State v. Platten, 225 Kan. 764, 770, 594 P.2d 201 (1979).
The possible destruction of evidence is also a factor which may be considered. 225 Kan. at 770. Thomas, as the homeowner, contends that these six or seven factors were not met; therefore, the officers violated his constitutional rights.
Although his argument is unclear, it appears that Thomas seeks a factor-by-factor analysis. Prior cases have not required such a review. See, e.g., Platten, 225 Kan. at 770. Furthermore, in Warden v. Hayden, 387 U.S. 294, 299, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967), the Supreme Court noted the search was “necessary to prevent the dangers that the suspect at large in the house may resist or escape.” The United States Supreme Court has recognized that hot pursuit alone justifies a warrantless intrusion into a home. See, e.g, Minnesota v. Olson, 495 U.S. 91, 100, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990). This court has also recognized that hot pursuit is one example of an exigent circumstance. E.g., State v. Mendez, 275 Kan. 412, 421, 66 P.3d 811 (2003).
Furthermore, the Kansas cases which Thomas cites to support his contention that the deputies lacked exigent circumstances to justify entering his home in pursuit of Prouse are distinguishable. Thomas cites State v. Huff, 278 Kan. 214, 92 P.3d 604 (2004), and Platten, 225 Kan. 764, 594 P.2d 201, where this court held that the evidence did not support the officers’ warrantless entry into a defendant’s home under the auspices of exigent circumstances. Neither case involved arrest warrants nor the “hot pursuit” of the suspect into the house; both cases are distinguishable on these grounds.
Here, the deputies had an arrest warrant for Prouse, began surveillance of the house where they reasonably believed he could be found, and then spotted Prouse as he first exited and then reentered the house. The district court found that the deputies initially intended to wait for Prouse and to arrest him outside. There is no evidence, or assertion by Thomas, that the deputies used the arrest warrant as a pretext for entering Thomas’ house or for searching it for incriminating evidence.
The district court found the doctrine of hot pursuit applied and also found it was impractical to expect the officers to obtain a warrant once Prouse took refuge in Thomas’ house. The district court expressed doubt that a search warrant could have been obtained quickly at 2 o’clock in the morning. Unquestionably, if the officers had sought a search warrant, there was a “high possibility that the fugitive named in the arrest warrant [would] escape apprehension.” Steagald, 451 U.S. at 226 (Rehnquist, C.J., dissenting). Indeed, requiring such police conduct would negate the essence of the hot pursuit doctrine. As previously observed, the chase of a suspect from the threshold of a house into the residence is considered to be “hot pursuit.” Santana, 427 U.S. at 43.
Furthermore, certain facts in this particular case are important to a conclusion that the officers were justified in making a warrantless entry into a third-party residence. The initial entry and search was limited to the apprehension of Prouse, the suspect named in the arrest warrant. See State v. Yardley, 267 Kan. 37, 41, 978 P.2d 886 (1999) (lawful search extends to entire area where object of search may be found); see also United States v. Ross, 456 U.S. 798, 820-22, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982) (lawful search generally extends to entire area where object of search may be found); Fisher v. Volz, 496 F.2d 333, 343 (3d Cir. 1974) (officers permitted to search only area where subject/object of warrant might hide). Thomas does not contest the officers’ quick protective sweep of the home once they discovered that Prouse was not alone. See State v. Johnson, 253 Kan. 356, 370, 856 P.2d 134 (1993) (protective sweep limited to search of premises, incident to arrest, and conducted to protect safety of officers and others; sweep narrowly confined to cursory visual inspection of places where person might hide). There is no indication that the deputies dug into drawers or looked into places where the suspect obviously could not hide.
In addition, the evidence pertaining to the methamphetamine lab was in plain view as the deputies pursued Prouse and made a protective sweep of the residence. It is clear that any evidence seized in plain view must be located in places lawfully accessible to officers. See State v. Miller, 222 Kan. 405, 413, 565 P.2d 228 (1977) (if officers are lawfully within premises, they may seize evidence in plain view); State v. Huff, 220 Kan. 162, 166, 551 P.2d 880 (1976) (citing Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 [1971]) (recognizing that plain view alone does not justify warrantless seizure of evidence); State v. Crouch, 192 Kan. 602, 606, 389 P.2d 824 (1964) (officers could seize government property, illegally possessed by defendant in plain view, upon authorized entry of premises). The strong smell of anhydrous ammonia was prevalent throughout the house, and various items consistent with the manufacture of methamphetamine sat in plain view in the kitchen area.