NOT DESIGNATED FOR PUBLICATION. No. 116,398 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. STATE OF KANSAS, Appellant, TYLER REGELMAN, Appellee.

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1 NOT DESIGNATED FOR PUBLICATION No. 116,398 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellant, v. TYLER REGELMAN, Appellee. MEMORANDUM OPINION Affirmed. Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed March 31, Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellant. Amber Cabrera, assistant public defender, of North Central Regional Public Defender's Office, of Junction City, for appellee. Before MCANANY, P.J., MALONE, J., and STUTZMAN, S.J. Per Curiam: Tyler Regelman filed a motion to suppress all evidence seized in a search of his residence. The search was supported by a warrant, but the district court found that the sole probable cause for the warrant came from statements Regelman made in response to questions from a law enforcement officer, while in custody, without prior Miranda warning. In response to the court's order, the State filed this interlocutory appeal. We find no error in the district court's ruling and affirm. 1

2 FACTS AND PROCEDURAL BACKGROUND Regelman had failed to report to his job for several days in mid-december Regelman's absence concerned his employer, and on December 22, 2015, Officer Douglas Cathey of the Junction City Police Department went to Regelman's residence for a welfare check. Cathey testified that as he rang the doorbell, he "smelled the odor of what [he] believed to be raw marijuana." Cathey said when Regelman answered the door "the odor of the raw marijuana became stronger." Regelman stepped outside and shut the door behind him. Cathey explained the reason for his visit to address concerns about Regelman's welfare since he had not been going to work. Regelman told Cathey he was having trouble at work and had decided not to go. The following discussion ensued: "[Officer Cathey]: What's with the marijuana smell? "[Regelman]: Don't think I smell anything. "[Officer Cathey]: We both do. You want to expand on that? I mean... "[Regelman]: No, I don't smoke or anything..... "[Officer Cathey]: Can we look [inside the house]? "[Regelman]: No. "[Officer Cathey]: Well what we're going to do is, I'm going to go apply for a search warrant. "[Regelman]: Okay. "[Officer Cathey]: So, in the meantime, we're all just going to hang out here. "[Regelman]: Uh I don't smoke, so I'm going to leave. Regelman began to walk down the porch steps and away from his house, toward the street. Cathey replied, "No, you're going to stay right here, buddy." When Regelman continued to walk away from the house, Cathey commanded: "Mr. Regelman, stop walking." Regelman stopped, turned around, and reiterated, "I don't smoke or anything." 2

3 Cathey then told Regelman: "Okay, you can either sit on the steps or sit in my patrol car. Which one do you want to do?" When Regelman asked if he could go back into his house, Cathey answered, "No you may not." took place: Regelman returned to the porch and faced Cathey, and the following exchange "[Regelman]: I haven't done anything wrong, man. "[Officer Cathey]: Okay, I've got you. I'm just telling you what's going on. I smell marijuana, I'm going to investigate that "[Regelman]: Please don't, I mean. I haven't done anything wrong. "[Officer Cathey]: Okay, that's not how this works. "[Regelman]: Jesus Christ. I haven't done anything wrong, man. I'm not hurting anybody but myself. "[Officer Cathey]: Take your hands out of your pockets for me. "[Regelman]: I'm not hurting anybody but myself, man. "[Officer Cathey]: How you hurting yourself? "[Regelman]: I mean, I've got a problem. I know I've got a problem. I'm not trying to hide it or anything. "[Officer Cathey]: What's your problem? "[Regelman]: I do drugs, I'm not trying to hide it. "[Officer Cathey]: Okay. Just marijuana or do you do anything worse? "[Regelman]: That's it, man." Regelman continued to pace around his front porch and place his hands in his pockets. Citing "safety and apparent flight risk" concerns, Cathey placed Regelman in handcuffs and called for additional officers. While they waited for the other officers, Regelman pleaded with Cathey to "cut him a break and let him go inside and get rid of the stuff." Regelman later revealed "that the [marijuana] was sitting by [his] couch." 3

4 After another unit arrived, the officers placed Regelman in the back of a patrol vehicle for over an hour while Cathey applied for a search warrant. In pertinent part, Cathey's affidavit stated: "I called for another unit to come to the residence. While waiting for this additional unit, Mr. Regelman repeatedly begged me to cut him a break and advised he had a drug problem. Mr. Regelman also told me I should just take him to jail and that 'The stuff' was all sitting by the couch and that he would show it to me. I advised him I would not accept a consent search at that point and would still apply for a search warrant." At least five officers executed the search warrant of Regelman's home and almost immediately discovered marijuana and other paraphernalia. After the search, Cathey read Miranda warnings to Regelman. The State charged Regelman with: possession of marijuana with intent to distribute within 1000 feet of a school zone, a severity level 3 nonperson drug felony; possession of drug paraphernalia, a severity level 5 nonperson drug felony; possession of marijuana, a class A nonperson misdemeanor; and, possession of drug paraphernalia, a class A nonperson misdemeanor. Regelman filed a motion to suppress all evidence, arguing that he was illegally seized and subjected to custodial interrogation without receiving Miranda warnings. After an evidentiary hearing, the district court granted Regelman's motion, and the State timely filed this interlocutory appeal. ANALYSIS A district court's ruling on a motion to suppress presents a mixed question of law and fact. State v. Garcia, 297 Kan. 182, 186, 301 P.3d 658 (2013). We review the district 4

5 court's factual findings to determine whether they were supported by substantial competent evidence while we apply de novo review to all legal conclusions drawn from those facts. State v. Dern, 303 Kan. 384, 392, 362 P.3d 566 (2015). Substantial evidence is legal and relevant evidence that a reasonable person would find adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012), superseded by statute on other grounds in City of Dodge City v. Webb, 50 Kan. App. 2d 393, 329 P.3d 515 (2014). In our review, we do not reweigh evidence or assess the credibility of witnesses. Dern, 303 Kan. at 392. In this case, neither party disputes the facts, so we review the district court's findings de novo. The district court found that Cathey illegally detained Regelman and that Regelman's subsequent statements and other evidence from that point forward should be suppressed. In his written ruling, the district judge reasoned: "The smell of marijuana emanating from a home can give rise to reasonable suspicion but Mr. Regelman answered Cathey's questions pertaining to the smell of marijuana.... At that juncture, Mr. Regelman should have been permitted to depart his home because Cathey could not search Mr. Regelman's home without a search warrant. Mr. Regelman posed no danger to law enforcement, especially if he had been able to depart the residence. Mr. Regelman was placed in handcuffs and remained that way until the warrant was obtained and executed, close to an hour later. "As soon as Mr. Regelman was prevented from leaving his home, he was seized contrary to the Fourth Amendment and under the Kansas Constitution. Any statements made by Mr. Regelman once he was seized and placed under arrest must be suppressed and removed from the search warrant affidavit. Mr. Regelman was also subject to a custodial interrogation because he was detained and questioned concerning the statement he made about 'only hurting himself.' The continuous questions by Cathey were in violation of Miranda because Mr. Regelman was not given the warnings even though he was detained for close to an hour. [Citations omitted.] Although not yet addressed by the Kansas Supreme Court, the statements elicited from Mr. Regelman should be excluded from the search warrant affidavit because it would ensure the protections under Miranda 5

6 would apply in situations similar to this case. State v. Thomas, 302 Kan. 440, (2015). To be clear, without the statements made while illegally detained, there would have been no probable cause to issue the warrant." On appeal, the State presents three arguments to support its claim that the district court erred: (1) Regelman was detained legally as part of an investigatory detention, and his statements are admissible; (2) the odor of raw marijuana was sufficient probable cause upon which to base a search warrant; and (3) even if the suppression is upheld, the exception for good faith should be applied. The restraint of Regelman exceeded the scope of an investigatory detention In its brief, the State acknowledges Officer Cathey prevented Regelman from leaving his residence, but it contests the district court's finding that Regelman was held in custody outside his home, urging instead that he was merely the subject of an investigatory detention authorized by Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (generally referred to as a Terry stop). The State correctly notes that those stops are not subject to Miranda protections. State v. Lewis, 299 Kan. 828, , 326 P.3d 387 (2014). Under the Fifth Amendment to the United States Constitution, the State may not use a defendant's statements made during a custodial interrogation unless it has provided procedural safeguards to preserve the defendant's privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). These "Miranda safeguards are triggered only when the accused is (1) in custody and (2) subject to interrogation." Lewis, 299 Kan. at 834. In Miranda, the Supreme Court emphasized that these protections apply only to custodial interrogations, and not "general on-the-scene police questioning of a suspect in the fact-finding process." State v. Vanek, 39 Kan. App. 2d 529, 532, 180 P.3d 1087 (2008). 6

7 As this court noted in Vanek, the fact that a person is not free to terminate an interview with law enforcement officers is not, by itself, determinative of whether that person is in custody. 39 Kan. App. 2d at During a Terry stop, a person is not free to terminate the encounter but nevertheless is not in custody. 39 Kan. App. 2d at To decide whether a suspect was in custody, courts must determine whether a reasonable person under the circumstances would have felt that he or she was at liberty to terminate the interview and leave. 39 Kan. App. 2d at 537. Under this standard, the ultimate inquiry is whether there was a "'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383 (1995). To aid this analysis, Kansas courts have set forth factors that are helpful for the determination of whether a person was in custody. These factors include: (1) The time and place of the interrogation; (2) duration of the interrogation; (3) number of police officers present; (4) conduct of the officers and person subject to the interrogation; (5) presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6) whether the person is being questioned as a suspect or a witness; (7) whether the person being questioned was escorted by police to the interrogation location or arrived under his own power; and (8) the result of the interrogation, for instance, whether the person was allowed to leave, detained further, or was arrested after the interrogation. Lewis, 299 Kan. at 835. No one factor is more dispositive than another, nor are the factors weighed equally. The facts in each case must drive the analysis. 299 Kan. at 835. The State does not employ the factors as a structure for its investigative detention argument. Instead, it contends that placing a defendant in handcuffs does not, by itself, indicate the defendant was under arrest. In our analysis, we must consider the fact that the officer detained Regelman, then placed him in handcuffs, and consider those actions in context with the other circumstances of this case. 7

8 The length of the initial encounter between Cathey and Regelman was short less than 10 minutes. During that time, however, the welfare check that took Cathey to Regelman's door quickly transitioned into a criminal investigation. Cathey's body camera video shows the shift in the tone of the encounter when, less than a minute after Regelman answered his door, Cathey asked, "What's with the marijuana smell?" By that time, Regelman's welfare had been verified and was no longer an issue, and the encounter was extended because Regelman was considered a criminal suspect. That shift in focus is not sufficient to find Regelman was in custody. See Vanek, 39 Kan. App. 2d at 537. But after Regelman responded to Cathey's questions, he still was not permitted to leave his home. When Regelman began to walk toward the street, Cathey followed him, ordered him to stop, and directed him back to the front porch where another officer stood. At that point, Regelman had denied both the presence of marijuana and consent to search, and Cathey had nothing more as a basis for detention than his impression that the odor of "raw marijuana" came from Regelman's residence. We find the continued detention exceeded the limits of investigatory detention and became custodial. Applying the above factors to these circumstances, we note that Regelman was clearly considered a suspect, rather than a witness, and although he was not yet handcuffed or at a police station under a formal arrest, he was subjected to the functional equivalent of physical restraint since he had been denied freedom of movement and was ordered to return to his porch. Regelman was not free to leave, and he was not allowed to reenter his residence. The officers had imposed a restraint on Regelman's freedom of movement to a degree associated with a formal arrest. In that situation, a reasonable person would not have felt he or she was at liberty to terminate the interview and leave. The subjective application of that objective test was that Regelman actually tried to terminate the interview and leave and was prevented from doing so. Faced with an order supported by two officers, he complied. He was in custody. 8

9 Before long, Regelman was also in handcuffs, on the basis of "safety and apparent flight risk," although the State points to no instance when Regelman attempted to leave after he complied with the order to return to the porch. Officer Cathey did a patdown for weapons after he placed Regelman in handcuffs. Regelman's custodial status continued as the officers moved him to a patrol car to wait for them to apply for a search warrant. In its brief, the State directs us to Illinois v. McArthur, 531 U.S. 326, 329, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001), where the Supreme Court upheld the temporary exclusion of a man from his mobile home while they obtained a search warrant. The State reasons that "[i]n the context of this case, it would be unreasonable to allow potential suspects to literally walk away from a crime scene, merely because the officers are in the process of obtaining a search warrant." The facts presented to the court in McArthur clearly distinguish that detention from Regelman's. Justice Breyer, writing for the court, cited four circumstances "which we consider in combination" to determine the restriction imposed in that case was reasonable. First, there was probable cause to believe the mobile home contained evidence of a crime and contraband in the form of unlawful drugs. Second, the officers had "good reason to fear" McArthur would destroy the drugs before they could return with a warrant. Third, the officers reasonably attempted to balance their needs with McArthur's interest; they did not search the premises or arrest him before they got their warrant and only prevented him from reentering his mobile home unaccompanied. Finally, the duration of the restraint was limited (about 2 hours) to the time reasonably needed to get the warrant. 531 U.S. at The circumstances of the present case do not match up well for the State on the first three of the four factors considered important in McArthur. In the present case, the district court found that, without Regelman's statements made while detained, the officers had no probable cause for a search of his home. Next, there was no reason to fear 9

10 Regelman would destroy the marijuana that Cathey thought was inside the residence, since Regelman initially wanted to walk away and leave the home. And, finally, Regelman was not subjected to a limited restriction he was first ordered not to leave or reenter, then was handcuffed and placed in a patrol car for more than an hour. Only the time factor favorably compares to the facts in McArthur. Finally, the State contends Regelman "made several spontaneous statements before being placed in handcuffs, to include having a drug problem." At the time those statements were made, the officers already had restricted Regelman's liberty to a significant degree, holding him in their custody. No Miranda warnings had been given, and the statements were properly suppressed. The odor of marijuana is not alone sufficient to provide probable cause for a search warrant. The State next asserts that Cathey's belief that he smelled raw marijuana was sufficient to constitute probable cause upon which to base a search warrant. At argument, the State acknowledged that, without Regelman's statements, Cathey's opinion about the odor was the only support for the warrant request presented to the reviewing magistrate. Kansas courts have long held that the smell of marijuana alone is sufficient to establish probable cause for the search of a vehicle. See State v. MacDonald, 253 Kan. 320, , 856 P.2d 116 (1993) (trooper had probable cause to search vehicle when he smelled odor of marijuana). In contrast, Kansas has no "plain smell" exception to the requirement for a warrant to search a residence. In State v. Huff, 278 Kan. 214, P.3d 604 (2004), our Supreme Court noted that in most jurisdictions the smell of marijuana coming from a residence is insufficient to constitute the probable cause needed to support a search warrant and that "[g]enerally something more than 'plain smell' is required." More recently, in State v. Smith, No. 103,736, 2011 WL , at *4 (Kan. 10

11 App. 2011) (unpublished opinion), rev. denied 294 Kan. 947 (2012), a panel of this court ruled, "Unless Kansas adopts a 'plain smell' exception to the warrant requirement, the odor of raw marijuana alone does not amount to probable cause." In its brief, the State called our attention to the decision of another panel of this court, in State v. Riley, No. 93,127, 2006 WL (Kan. App. 2006) (unpublished opinion). That panel found no reason to distinguish the MacDonald holding, concerning the odor of marijuana and a vehicle, from the facts before it that involved the odor of marijuana and a home. The Riley panel did not refer to the Supreme Court's discussion of this question in Huff, where that court noted the general rule elsewhere required odor plus "something more," while commenting that the question was unsettled in Kansas. In this case, there is no "something more," and we are more persuaded by the observations in Huff and the cases cited there which required additional support to justify a warrant for entry into a dwelling. Without Regelman's incriminating statements, made while in custody and without a Miranda warning of rights, Cathey's affidavit for a search warrant relied only on the smell of marijuana, which we find was insufficient as the sole support for probable cause. The district court properly suppressed all evidence found in the search of Regelman's home. The good-faith exception to the exclusionary rule should not be applied to this case In a single paragraph concluding its brief, the State contends that even we find the affidavit supporting the search warrant lacked probable cause, the evidence from the search still should be admitted because the officers executing the warrant acted in good faith. The district court rejected this argument in its findings, stating: "[T]he smell of marijuana is insufficient probable cause to search a home and that should not have allowed law enforcement to believe the warrant was valid, even with a judge's signature." 11

12 The Fourth Amendment exclusionary rule is a judicially created remedy that exists to prevent the use of unconstitutionally obtained evidence in a criminal proceeding against the subject of the illegal search. This rule applies when it would act as a deterrent to prevent law enforcement officers from violating citizens' constitutional rights. Hudson v. Michigan, 547 U.S. 586, 596, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). There is a recognized exception to the exclusionary rule based on a law enforcement officer's good faith conduct. The exclusionary rule should not be applied to bar "'evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.'" State v. Powell, 299 Kan. 690, 700, 325 P.3d 1162 (2014) (quoting United States v. Leon, 468 U.S. 897, 900, 104 S. Ct. 3405, 82 L. Ed. 2d 677 [1984]). Here, as the district court found, Cathey should have known that the plain smell of marijuana alone was insufficient probable cause to obtain a search warrant for Regelman's home. He also should have recognized the obvious requirement for Miranda warnings after he restricted Regelman's freedom of movement denying him the ability to either leave his residence or reenter it and the effect of using unwarned statements as a part of the support for the warrant. In these circumstances, we find Cathey could not have reasonably relied on the warrant issued by the district court. The good faith exception does not apply to this case. CONCLUSION Our de novo review of the district court's conclusions, based on the undisputed facts, reveals no error. The judgment of the district court is affirmed. 12