by Douglas Ankney

The Supreme Court of Kansas clarified that state law does not require consent to search to be verbal and that nonverbal conduct may constitute consent under the totality of the circumstance.

Responding to a complaint of an odor of marijuana, officers Robert McKeirnan and Kelly Smith decided to conduct a “knock and talk” at the door of an apartment occupied by Gianni Massimo Daino. He opened the door a few inches, blocking the officers’ line of sight into the apartment. McKeirnan told Daino he knew there was a lot of marijuana in the apartment because of the smell and then said, “Well, here’s the deal, not a huge deal, but I gotta write a ticket if there’s marijuana in the house, okay? ‘Cause it’s illegal, so let me step in with you real quick and we’ll get it figured out, okay?”

Daino allegedly then opened the door wide and swung his right hand across his body, pointing the way inside his apartment. Once inside, the officers observed medication bottles and LSD blotter paper. McKeirnan then requested Daino to sign a consent-to-search form. Daino signed the form, and officers recovered the above items, along with other illegal narcotics and drug paraphernalia. Daino admitted to McKeirnan that he sold marijuana.

Daino was charged with numerous drug-related felonies, and he moved to suppress the evidence.

He challenged the knock and talk, the officers’ entry into his apartment, the search, and the admissibility of his statements. The district court granted the motion based solely on the officers’ entry into the apartment. The court concluded that Daino’s gestures clearly communicated an invitation to enter the apartment. But the judge stated that he was bound by State v. Poulton, 152 P.3d 678 (Kan. 2007), which he believed held that under Kansas case law “no action or gesture can be construed as implied consent.” Since Daino had not verbally consented to the officers’ warrantless entry, the subsequent search and seizure were invalid, the court ruled.

The State appealed. A divided Court of Appeals reversed the district court. The majority reasoned that while some earlier decisions had found a defendant’s nonverbal conduct insufficient to support a finding of consent, Daino’s conduct showed he “unequivocally, specifically, freely, and intelligently gave his consent.” Daino petitioned for review, arguing there was a conflict in Kansas case law as to whether nonverbal conduct can establish consent. The Kansas Supreme Court granted review.

The Court observed that the Fourth Amendment to the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” And section 15 of the Kansas Bill of Rights provides identical protections. State v. Zwickl, 393 P.3d 621 (Kan. 2017). A warrantless search is always unreasonable unless an exception to the warrant requirement applies. State v. Chavez-Majors, 454 P.3d 600 (Kan. 2019). The government’s warrantless entry into a home is presumed to be an unconstitutional search. Payton v. New York, 445 U.S. 573 (1980).

However, no warrant is required to search a home if the police have consent. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The existence, voluntariness, and scope of the consent to search is a question of fact to be determined from the totality of the circumstances. Id.

The government has the burden of showing, by a preponderance of the evidence, that the defendant’s consent to search was valid, i.e., the government must (1) provide clear and positive testimony that consent was unequivocal, specific, freely and intelligently given; and (2) demonstrate the absence of duress or coercion, express or implied. State v. Cleverly, 385 P.3d 512 (Kan. 2016). Evidence that a defendant merely acquiesced to a showing of lawful authority will not satisfy the government’s burden. State v. Jones, 106 P.3d 1 (Kan. 2005).

Consent may be verbal, or a defendant may express his or her consent through gestures or other indications of affirmation so long as they sufficiently communicate an individual’s unequivocal, specific, and freely given consent. United States v. Guerrero, 472 F.3d 784 (10th Cir. 2007). A nod of the head can be understood as unequivocal and specific consent. State v. Seeley, 201 P.3d 775 (Kan. App. 2009) (unpublished opinion).

The Court explained that upon a review of Kansas case law, there is no conflict on the issue of nonverbal conduct constituting valid consent. Poulton and other similar decisions ruled that, under the totality of the circumstances particular to those cases, the defendants’ nonverbal conduct did not demonstrate unequivocal, specific, freely, and intelligently given consent. The Court further explained that “[n]one of these decisions embrace a rule of law foreclosing nonverbal conduct as a basis for valid consent.”

However, in the instant case, because the district court erroneously concluded that nonverbal conduct could never provide consent, it didn’t determine whether the State had met its burden of showing valid consent, according to the Court. As this is a factual determination, it must be made by the district court, and the Court of Appeals overstepped its authority when it made the factual determination. State v. Reed, 332 P.3d 172 (Kan. 2014).

Accordingly, the Court reversed the Court of Appeals and remanded to the district court for further proceedings on Daino’s motion consistent with the Court’s clarification of the law on nonverbal consent to search. See: State v. Daino, 475 P.3d 354 (Kan. 2020). 

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