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Date: 11-27-2020
Case Style:
STATE OF KANSAS v. GIANNI MASSIMO DAINO
Case Number: 120,824
Judge: Kenyen J. (K.J.) Wall
Court: IN THE SUPREME COURT OF THE STATE OF KANSAS
Plaintiff's Attorney: Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general,
Defendant's Attorney:
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Topeka, KS - Criminal defense lawyer represented defendant Gianni Massimo Daino charged with several drug-related offenses after a warrantless search of his apartment led to the discovery of marijuana and other incriminating evidence. Daino moved to suppress all evidence seized as a result of the search.
This case requires us to decide whether an individual may consent to
law enforcement's entry into an apartment through nonverbal conduct under section 15 of
the Kansas Constitution Bill of Rights.
The State charged Gianni Massimo Daino with several drug-related offenses after
a warrantless search of his apartment led to the discovery of marijuana and other
incriminating evidence. Daino moved to suppress all evidence seized as a result of the
search. The State opposed the motion, arguing Daino's nonverbal conduct evidenced his
voluntary consent. The district court granted Daino's motion, concluding as a matter of
law that established Kansas precedent forecloses a finding of valid consent based on
nonverbal conduct. In a split decision, the Court of Appeals reversed, holding that
Daino's nonverbal conduct unequivocally expressed his voluntary consent. Daino
petitioned for review, asking this court to decide whether Kansas law forecloses consent
through nonverbal conduct. We conclude it does not, and nonverbal conduct can be
probative of the existence of consent under the totality of the circumstances under section
15 of the Kansas Constitution Bill of Rights. We affirm the Court of Appeals' decision in
part and reverse in part. Further, we reverse the order granting Daino's motion to suppress
and remand the matter to the district court for further proceedings in light of the
controlling legal standards set forth herein.
FACTS AND PROCEDURAL BACKGROUND
Dispatch sent Officers Robert McKeirnan and Kelly Smith to an apartment
complex in response to a complaint about a narcotics odor. At the complex, the officers
spoke with a person who said he could smell marijuana coming from apartment number
48. As the officers walked toward that apartment, they could smell marijuana but could
not tell where the smell originated. McKeirnan knocked on the apartment door when they
4
arrived, but he did not announce he was a police officer. Both officers were in uniform,
but they stood to the side of the door as a general safety precaution.
After about a minute, Daino opened the door a few inches—enough to reveal part
of his body but still blocking McKeirnan's line of sight into the apartment. McKeirnan
noticed an overwhelming smell of both raw and burnt marijuana coming from the
apartment. He told Daino he knew there was a lot of marijuana in the apartment because
of the smell. McKeirnan then asked to come in the apartment. According to an audio
recording McKeirnan made of the incident, McKeirnan told Daino: "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?"
At the suppression hearing, McKeirnan testified that Daino responded by nodding
his head and saying, "Okay. Let's do this." Daino then opened the door as far as it would
go and stood out of the way. McKeirnan then clarified he did not recall Daino verbally
responding to the request to enter the apartment, but he "assumed that [Daino] was
agreeing with me that . . . it was okay for us to come in and take care of the marijuana."
McKeirnan confirmed he "[a]bsolutely" believed Daino was allowing him in and
"consenting to [his] presence."
At counsel's request, McKeirnan also demonstrated the nonverbal conduct and
gestures Daino made in response to McKeirnan's request to enter, using a swinging door
near the witness stand for illustrative purposes. The district court later described Daino's
nonverbal conduct, as demonstrated by McKeirnan:
"[W]hen the officer demonstrated what the defendant did in this case, any reasonable
person that exists in the United States would have construed his gesture as 'come on in
the apartment.'
5
"He opened the door up, and he took his right hand and swung it across his body,
and pointed into the apartment. No reasonable person could have construed that as don't
come in, or I'm not sure if I want you to come in, or I'm still trying to decide whether I
want you to come in. Any reasonable person would have construed that as come on in the
apartment."
Smith also testified Daino opened the door and stepped back in response to
McKiernan's request to enter the apartment. She also believed Daino was consenting to
the officers' entry.
Once inside, McKeirnan asked Daino where the marijuana was located. Daino
answered it was in his bedroom and pointed towards his room. McKeirnan said, "I'll go
back there and grab that, okay?" and Daino nodded. McKeirnan said he would write
Daino a ticket and give him a court date provided there was only a small amount of
marijuana and some paraphernalia. Daino responded, "[I]t's a lot of weed."
In Daino's bedroom, McKeirnan saw a safe, medication bottles, some pipes, and
LSD blotter paper. He asked Daino to point out the location of the marijuana and Daino
complied. McKeirnan did not seize any items at that time. Instead, he asked Daino to sign
a consent to search form. The form advised Daino that he had the right to refuse consent
to the search. Daino signed the form, purportedly consenting to a search of the apartment
except for his absent roommate's bedroom. According to the affidavit, the resulting
search uncovered 27 grams of marijuana; 15 Amphetamine/Dextroamphetamine pills; a
black notebook which appeared to be a ledger for drug sales; plastic bags of various
sizes; a digital scale; $363 in cash; as well as other illegal narcotics and items of
paraphernalia.
Given the amount of marijuana the officers recovered, McKeirnan knew he could
not simply write Daino a ticket. McKeirnan arrested Daino and read him his Miranda
rights. Daino then admitted to selling marijuana.
6
According to McKeirnan, Daino was cooperative and compliant throughout the
encounter, and he never limited or withdrew his alleged consent. McKeirnan also testified
Daino was 18 years of age at the time of the search and was emotionally upset during the
interaction. Daino cried at one point, but he was never so upset that he could not
communicate with the officers.
The State charged Daino with possession of marijuana with intent to distribute
under K.S.A. 65-4105(d)(17), possession of amphetamine under K.S.A. 65-4107(d)(1),
and possession of drug paraphernalia under K.S.A. 2019 Supp. 21-5709(b)(1). Daino
moved to suppress the evidence, arguing the officers obtained all evidence through an
illegal search and seizure in violation of the Fourth Amendment to the United States
Constitution and section 15 of the Kansas Constitution Bill of Rights. He challenged the
officers' "knock-and-talk," the officers' entry into his apartment, the search of his
bedroom, and the admissibility of his statements to police.
As for the officers' entry into the apartment, Daino argued he did not validly
consent because he never verbally agreed to let the officers enter. For support, he cited
State v. Poulton, 37 Kan. App. 2d 299, 307, 152 P.3d 678 (2007), aff'd in part, rev'd in
part 286 Kan. 1, 179 P.3d 1145 (2008). Daino claimed that, like the defendant in
Poulton, his nonverbal conduct showed mere acquiescence to the officers' claim of
authority, not valid consent. The State advanced the opposite position.
The district court granted Daino's motion to suppress, ruling only on Daino's
challenge to the officers' entry into the apartment. The court found McKeirnan was
credible. It also found Daino's gesture clearly communicated an invitation to enter the
apartment. But it construed Poulton as prohibiting implied or nonverbal consent "under
any circumstances, regardless of how clear . . . the gestures might be."
7
The district judge expressed his disagreement with what he perceived to be
Poulton's holding but acknowledged he was bound by that decision:
"[W]ere it up to me, I would find that consent was freely and specifically and
intelligently given.
"But again, [Poulton], I think, is clear that . . . consent may never be implied.
And one of the things that I think finally allowed me to land on a decision, one I don't
agree with but one I think I have to make, is the fact that the Court of Appeals cited with
approval the Black[']s Law Dictionary [definition] of implied consent as, [m]anifested by
signs, actions, or facts, or by inaction or silence, which raise a presumption or inference
that the consent has been given.
"Maybe I am just simpleminded but, again, even though I don't agree with it, I
read the Kansas case law as saying that no action or gesture can be construed as implied
consent.
. . . .
"Again, if I haven't said it already enough times, I don't agree. I believe if it were
up to me that [Daino] did consent knowingly, voluntarily. But I believe that under the
current status of Kansas law, it was not consent and, as a result, I must grant the motion
to suppress."
After the district court explained its ruling, the State asked the court to clarify
whether the ruling was based exclusively on section 15 of the Kansas Constitution Bill of
Rights. The court responded, "I believe that that is my finding."
The State filed an interlocutory appeal, arguing Daino either expressly or
impliedly consented to the officers' entry through his nonverbal conduct, and the consent
was valid under both the Fourth Amendment and section 15. In a split decision, the Court
8
of Appeals reversed the district court. State v. Daino, 57 Kan. App. 2d 653, 670, 458 P.3d
252 (2020). The majority observed that Kansas courts have traditionally interpreted
section 15 as providing the same protections as the Fourth Amendment. 57 Kan. App. 2d
at 660-61. It noted federal courts interpreting the Fourth Amendment have found that
"'[c]onsent can be found from an individual's words, acts or conduct.'" 57 Kan. App. 2d at
669-70 (quoting Krause v. Penny, 837 F.2d 595, 597 [2d Cir. 1988]). While some Kansas
Court of Appeals decisions had found that an individual's conduct was insufficient to
support a finding of lawful consent, the majority noted the defendants in those cases had
merely failed to object to the officers' uninvited entry. In contrast, the majority found
Daino had affirmatively communicated to the officers that they could enter his apartment.
57 Kan. App. 2d at 668-69. It concluded that a reasonable person would have understood
Daino's conduct as consenting to the officers entering his apartment, and thus the State
had met its burden to show Daino unequivocally, specifically, freely, and intelligently
gave his consent. 57 Kan. App. 2d at 669.
Judge Buser dissented, finding Daino had merely acquiesced to the officer's claim
of authority because: (1) McKeirnan did not explicitly or implicitly inform Daino that
he was requesting permission to enter to search the premises; (2) McKeirnan did not
inform Daino of his right to refuse the officer's request to enter the apartment; and
(3) McKeirnan's statements were misleading and a reasonable person would not have
understood he was seeking entry to search the apartment. 57 Kan. App. 2d at 671-72
(Buser, J., dissenting). Given these circumstances, Judge Buser concluded that a
reasonable person would not have understood Daino's silent gesture as fully informed and
freely given consent to enter the apartment to search for and seize marijuana. 57 Kan.
App. 2d at 673-74 (Buser, J., dissenting).
Daino petitioned for review, arguing there is an apparent conflict in Kansas
caselaw as to whether nonverbal conduct can establish valid consent. We granted review
to consider this issue.
9
ANALYSIS
Legal Framework and Standard of Review
The Fourth Amendment to the United States Constitution provides: "The 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." This provision, made applicable to the states through the Fourteenth
Amendment, prohibits government actors from performing unreasonable searches or
seizures. State v. Chavez-Majors, 310 Kan. 1048, 1053, 454 P.3d 600 (2019). Likewise,
section 15 of the Kansas Constitution Bill of Rights prohibits unreasonable searches and
seizures. This court has traditionally interpreted section 15 as providing protections
identical to the Fourth Amendment. State v. Zwickl, 306 Kan. 286, 291, 393 P.3d 621
(2017). Here, neither the district court nor the parties suggest section 15 offers
protections greater than the Fourth Amendment.
A warrantless search is always unreasonable unless an exception to the warrant
requirement applies. Chavez-Majors, 310 Kan. at 1053. Absent consent or exigent
circumstances, the warrantless search of a home is presumptively unconstitutional. See
Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004);
Steagald v. United States, 451 U.S. 204, 211, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981).
For purposes of the Fourth Amendment, entry into the home is considered a search. See
United States v. Jones, 701 F.3d 1300, 1317 (10th Cir. 2012) (finding officer's entry into
home constituted search for purposes of Fourth Amendment); see also Payton v. New
York, 445 U.S. 573, 585-86, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) ("'[P]hysical entry
of the home is the chief evil against which the wording of the Fourth Amendment is
directed.'").
10
Here, the State argued the officers' warrantless entry into Daino's apartment was
lawful because Daino consented to the entry. The existence, voluntariness, and scope of
a consent to search is a question of fact to be determined from the totality of the
circumstances. State v. Jones, 279 Kan. 71, 77, 106 P.3d 1 (2005); see also Schneckloth
v. Bustamonte, 412 U.S. 218, 225-27, 248-49, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973);
State v. Moore, 283 Kan. 344, 361, 154 P.3d 1 (2007). The State has the burden of
establishing, by a preponderance of the evidence, that a defendant's consent to search is
valid. State v. Boggess, 308 Kan. 821, 827, 425 P.3d 324 (2018); Jones, 279 Kan. at 77.
A showing of mere acquiescence to a claim of lawful authority will not satisfy this
burden. 279 Kan. at 78. Instead, to demonstrate valid consent, the State must (1) provide
clear and positive testimony that consent was unequivocal, specific, and freely and
intelligently given; and (2) demonstrate the absence of duress or coercion, express or
implied. State v. Cleverly, 305 Kan. 598, 613, 385 P.3d 512 (2016); see United States v.
Mendez, 118 F.3d 1426, 1432 (10th Cir. 1997).
While consent must be unequivocal, specific, and freely and intelligently given,
neither Kansas law nor constitutional doctrine require it be verbal, i.e., written or spoken.
United States v. Guerrero, 472 F.3d 784, 789 (10th Cir. 2007). Instead, an individual 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. 472 F.3d at 789-90.
Courts employ an objective reasonableness standard to determine the existence
and scope of an individual's consent. State v. Johnson, 253 Kan. 356, 365, 856 P.2d 134
(1993) (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297
[1991]); see United States v. Flores, 48 F.3d 467, 468 (10th Cir. 1995). Therefore, the
key inquiry is whether, based on the totality of the circumstances, the conduct and
11
interaction would have caused a reasonable officer to believe the defendant consented to
entry or search. United States v. Muse, 428 F. Supp. 3d 1186, 1193 (D.N.M. 2019)
(quoting Flores, 48 F.3d at 468-69), reconsideration denied No. 17-CR-2008 MV, 2020
WL 709270 (D.N.M. 2020); United States v. Castellanos, 518 F.3d 965, 969 (8th Cir.
2008).
When reviewing a district court's ruling on a motion to suppress, appellate courts
review the factual findings for substantial competent evidence and the ultimate legal
conclusion de novo. State v. Guein, 309 Kan. 1245, 1251-52, 444 P.3d 340 (2019). Here,
the district court ruled, as a matter of law, that Daino could not consent through
nonverbal conduct. As such, we review this legal conclusion de novo.
Kansas law does not preclude consent through nonverbal conduct.
In his petition for review, Daino argues Kansas appellate courts disagree whether
an individual may consent to search through nonverbal conduct. However, a careful
review of this authority reveals no such conflict. To the contrary, these decisions confirm
that an individual may communicate valid consent through nonverbal conduct, provided
such conduct, under the totality of the circumstances, clearly expresses an individual's
unequivocal, specific, free, and intelligent consent, in the absence of duress or coercion,
and does not constitute mere acquiescence to a claim of lawful authority.
For example, in Cleverly, we indicated a defendant may consent to a search
through nonverbal conduct facilitating the search. There, Cleverly handed his cigarette
packages to an officer after the officer asked to search them during a traffic stop. One
package had methamphetamine inside. The district court denied Cleverly's motion to
suppress, finding he had validly consented to the search. On review, we held Cleverly
was illegally detained by the officer before the search. We also observed that Cleverly
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clearly expressed his consent through the nonverbal act of handing his cigarette packs to
the officer upon request. Cleverly, 305 Kan. at 613. However, based on the continuation
of the unlawful detention and the post-traffic stop conduct of the officers, we held "under
the totality of the circumstances of this case, the nature of Cleverly's unlawful seizure
rendered his consent to the search of the cigarette package involuntary and, consequently,
invalid." 305 Kan. at 614.
Several Court of Appeals decisions have also viewed defendant's nonverbal
conduct as probative of voluntary consent. In State v. Seeley, No. 99,456, 2009 WL
500960 (Kan. App. 2009) (unpublished opinion), an officer asked Seeley if he could
search her apartment for illegal narcotics and Seeley nodded her head. Seeley argued her
head nod did not establish substantial evidence that her consent was unequivocal,
specific, and intelligently given. The Court of Appeals noted "[a]rguably, a nod of the
head can be unequivocal and specific," citing United States v. Gordon, 173 F.3d 761, 766
(10th Cir. 1999), and United States v. Torres, 983 F. Supp. 1346, 1354-55 (D. Kan.
1997). Seeley, 2009 WL 500960, at *4. The panel also noted Seeley had told officers they
could "'look around,'" and it held the totality of the circumstances provided substantial
evidence supporting the district court's conclusion that her consent was valid. 2009 WL
500960, at *4.
In State v. Tabarez, No. 104,352, 2011 WL 5389690 (Kan. App. 2011)
(unpublished opinion), Tabarez nodded when an officer asked for permission to search
Tabarez' pants during a traffic stop. In analyzing whether Tabarez consented to the
search, the panel acknowledged "[c]ertainly, caselaw supports a finding that a nod of the
head can be unequivocal and specific," again citing Gordon and Torres. Tabarez, 2011
WL 5389690, at *5. The panel concluded that Tabarez' nonverbal response to the request
to search, coupled with other circumstances supporting the voluntariness of the
encounter, provided adequate support for the district court's conclusion that consent was
valid. 2011 WL 5389690, at *5-6.
13
Most recently, in City of Topeka v. Murdock, No. 116,213, 2018 WL 385699
(Kan. App.) (unpublished opinion), rev. denied 308 Kan. 1593 (2018), an officer said he
needed to discuss personal business with Murdock and would rather not do it in the
hallway. Murdock told the officer to "come in," stepped back into his apartment and gave
a slight wave. Citing Seeley and Gordon, the Court of Appeals acknowledged that
"[n]onverbal conduct can also constitute consent to enter an individual's home." 2018 WL
385699, at *3. The panel reasoned that, "[i]f a nod of the head can be unequivocal and
specific, so can a wave paired with opening the door wider and stepping backwards."
2018 WL 385699, at *3. The panel concluded Murdock's conduct and language
unequivocally expressed his valid consent to entry. 2018 WL 385699, at *3.
Federal jurisprudence likewise confirms that an individual can unequivocally
express his or her lawful consent under the Fourth Amendment through nonverbal
conduct. See Guerrero, 472 F.3d at 789-90; see also United States v. Basher, 629 F.3d
1161, 1167 (9th Cir. 2011) ("Consent can be inferred from nonverbal actions, but it must
be 'unequivocal and specific' and 'freely and intelligently given.'"); United States v.
Lewis, 476 F.3d 369, 381 (5th Cir. 2007) ("The officers reasonably interpreted Caldwell's
gesture as an invitation to enter the room."); United States. v. Winston, 444 F.3d 115, 122
(1st Cir. 2006) ("We do not find it of decisive significance that in response to the agent's
question as to the location of the nightstand, Winston motioned with his shoulder rather
than speaking. In other situations, we have found implied-in-fact consent based entirely
on silent actions."); United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) ("Consent
to a search 'may be in the form of words, gesture, or conduct.'"); United States v. Walls,
225 F.3d 858, 863 (7th Cir. 2000) ("It is well established that consent may be manifested
in a non-verbal as well as a verbal manner."); United States v. Buettner-Janusch, 646
F.2d 759, 764 (2d Cir. 1981) ("[I]t is well settled that consent may be inferred from an
individual's words, gestures, or conduct."). We find these cases persuasive, as we have
14
interpreted section 15 as providing the same protections as the Fourth Amendment. We
do not depart from that precedent today.
Granted, not every Kansas appellate court has concluded that defendant's
nonverbal conduct was sufficient to establish lawful consent under the totality of the
circumstances. Most notably, in Poulton, on which the district court relied in granting
Daino's motion, the Court of Appeals held that an individual's mere acquiescence did not
provide substantial evidence of lawful consent. There, officers went to Poulton's home
looking for a woman who had violated parole. Poulton met with the officers on his porch.
When the officers said they wanted to go inside to get the woman, Poulton offered to do
it himself. The officers then followed Poulton into his home—neither asking permission
nor waiting for the same from defendant. Poulton later moved to suppress the evidence
officers found once inside his home, but the district court ruled Poulton had impliedly
consented to the search. The Court of Appeals reversed, finding Poulton's mere
acquiescence to law enforcement's uninvited entry did not satisfy the standard for
voluntary consent under the totality of the circumstances. Poulton, 37 Kan. App. 2d at
307-08.
Several Court of Appeals panels have relied on Poulton to conclude a defendant's
nonverbal conduct constituted mere acquiescence, not voluntary consent, where the State
attempted to infer consent from an individual's inaction or failure to protest law
enforcement's uninvited entry or search. See State v. Metcalf, No. 117,802, 2018 WL
5851524, at *9 (Kan. App. 2018) (unpublished opinion) (conduct of motel room
occupant, who did not invite in or deny entry to officers and complied with officer's
request to locate defendant inside the room, did not establish that she gave "unequivocal,
specific" consent); State v. Cox, No. 112,387, 2015 WL 1785576, at *4 (Kan. App. 2015)
(unpublished opinion) (defendant did not implicitly consent to the search of a bag left in
another person's vehicle where defendant confirmed her bag was a "Buckle" bag with a
15
wood sander inside, driver confirmed which of several "Buckle" bags belonged to
defendant, but officer looked inside to see if it contained a wood sander and found a
methamphetamine pipe); State v. Tang, No. 109,875, 2013 WL 6168664, at *5 (Kan.
App. 2013) (unpublished opinion) (finding defendant's act of opening the door, walking
into home, and failing to otherwise prevent officer from following him in did "not show
that Tang unequivocally, specifically, freely, and intelligently consented to [law
enforcement's] entry into his home").
None of these decisions embrace a rule of law foreclosing nonverbal conduct as a
basis for valid consent. Instead, their outcomes are fact driven and dependent on the
characteristics of the accused, the nature of the nonverbal conduct, and other
circumstances regarding the interaction and conditions in which consent was purportedly
granted. Poulton, et al., refused to infer consent based merely on an individual's silence,
inaction, or failure to protest, often in situations where officers did not even ask to enter a
residence or search belongings. In other words, under the facts unique to those decisions,
an individual's silence or inaction in response to law enforcement's uninvited entry failed
to provide substantial evidence of unequivocal, specific, and freely given consent. Rather
than prohibiting consent based on nonverbal conduct, these cases illustrate the wellestablished legal pronouncement that consent must be founded on something more than
mere acquiescence to a claim of lawful authority. Jones, 279 Kan. at 78 (defendant's mere
acquiescence to preliminary breath test did not establish voluntary consent); Bumper v.
North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) (The
burden of proving that the consent was, in fact, freely and voluntarily given "cannot be
discharged by showing no more than acquiescence to a claim of lawful authority.").
Federal authority interpreting the Fourth Amendment reinforces this proposition.
Like Poulton, federal courts have refused to find valid consent where the nonverbal
conduct was ambiguous or the individual simply failed to object to the officer's entry into
16
the home. See, e.g., Bashir v. Rockdale County, Ga., 445 F.3d 1323, 1329 (11th Cir.
2006) ("[C]onsent cannot reasonably be inferred from Bashir's simple act of disengaging
from conversation with Sergeant Reed and walking into the house. Nor can consent
reasonably be inferred from Bashir's conduct once [Deputy] Davis was already inside.");
United States v. Shaibu, 920 F.2d 1423, 1425 (9th Cir. 1990) (holding that "merely
retreating into one's home while being followed by a police officer," standing alone, does
not show consent to police entry and consent not implied because defendant failed to
object to officers entering apartment's open door); United States v. Little, 431 Fed. Appx.
417, 420-21 (6th Cir. 2011) (unpublished opinion) (holding no implied consent where
officer failed to ask permission to enter and "'merely followed Defendant into the house
when Defendant went in to get additional clothing'").
On the other hand, federal courts have found an individual's nonverbal conduct
constituted valid consent where, under the totality of the circumstances, a reasonable
officer could interpret such conduct (such as opening a door, stepping back, nodding in
the affirmative, and/or a waving-in gesture) as an unequivocal response to law
enforcement's request to search. See, e.g., United States v. Sabo, 724 F.3d 891, 894 (7th
Cir. 2013) ("'[T]his court, on more than one occasion, has found that the act of opening a
door and stepping back to allow entry is sufficient to demonstrate consent.'"); Lewis, 476
F.3d at 381 (holding that officers reasonably interpreted occupant's gesture as invitation
to enter after they knocked on hotel room door); Carter, 378 F.3d at 587 (finding
defendant's actions constituted consent because he stepped back and allowed officers in
after they asked permission to enter); United States v. Ramirez-Chilel, 289 F.3d 744, 751-
52 (11th Cir. 2002) (finding defendant demonstrated consent by yielding right of way so
officers could enter residence after officers asked to enter); United States. v. Turbyfill,
525 F.2d 57, 59 (8th Cir. 1975) ("An invitation or consent to enter a house may be
implied as well as expressed. There was no error in the determination of the district court
that the action of Church in the opening of the door and stepping back constituted an
implied invitation to enter.").
17
Together, these decisions stand for the well-established proposition that lawful
consent requires clear and positive evidence that an individual's consent is unequivocal,
specific, freely given, and free from duress or coercion, under the totality of the
circumstances. State v. Ransom, 289 Kan. 373, Syl. ¶ 4, 212 P.3d 203 (2009). This holds
true whether the consent is founded on verbal or nonverbal conduct, or both.
Further, these decisions instruct that when examining whether a reasonable officer
would interpret nonverbal conduct as valid consent under the totality of the
circumstances, the court should consider all relevant circumstances that give meaning and
context to the encounter, including any substantive nexus between the statements or
conduct of law enforcement and the defendant's nonverbal response. In exploring such a
nexus, courts have generally found nonverbal conduct to be more characteristic of mere
acquiescence where "law enforcement officers either did not ask for permission to enter
or search, and thus did not make known their objective, or, if they did, their request was
met with no response or one that was nonspecific and ambiguous." Turner v. State, 133
Md. App. 192, 207-08, 754 A.2d 1074 (2000). In contrast, courts have been more
inclined to find valid consent from nonverbal conduct where a substantive nexus is
apparent and
"the police made it known, either expressly or impliedly, that they wished to enter the
defendant's house, or to conduct a search, and within that context, the conduct from
which consent was inferred gained meaning as an unambiguous gesture of invitation or
cooperation or as an affirmative act to make the premises accessible for entry." 133 Md.
App. at 207.
In short, the presence or absence of a substantive nexus between the officer's request and
the nonverbal response is often highly probative when "examining the totality of the
circumstances to determine whether a reasonable officer would interpret a gesture or
18
conduct as consent." United States v. Bynum, 125 F. Supp. 2d 772, 783-84 (E.D. Va.
2000) ("Those decisions teach that . . . it is necessary to consider the question posed by,
and the actions of, the law enforcement officers to which the defendant's non-verbal
conduct was a response."), rev'd in part on other grounds 293 F.3d 192 (4th Cir. 2002).
Therefore, we agree with the Court of Appeals that "nothing in our precedent
requires consent to be verbal—it merely requires that consent be clear and unequivocal."
Daino, 57 Kan. App. 2d at 669. As such, the district court committed legal error by
granting Daino's motion to suppress based on the erroneous conclusion that Kansas law
precludes an individual from communicating valid consent through nonverbal conduct.
We sympathize with the district court because Poulton's use and definition of the
phrase "implied consent" seems to have created unnecessary confusion regarding the
appropriate legal standard. Poulton used the phrase "implied consent" to describe
defendant's silence or inaction in response to law enforcement's uninvited entry into the
residence. However, Poulton also relied on Black's Law Dictionary to define "implied
consent" broadly to include "'[t]hat manifested by signs, actions, or facts, or by inaction
or silence, which raise a presumption or inference that the consent has been given.'"
Poulton, 37 Kan. App. 2d at 307. Then, it pronounced that "[c]onsent by implication . . .
is contrary to established law," and concluded "[t]he fact that Poulton acquiesced or
impliedly consented in the officers' entry does not meet the standard for voluntary
consent." 37 Kan. App. 2d at 307. Here, the district court found that nonverbal conduct
fell within Poulton's broad definition of "implied consent" and then applied Poulton's
pronouncement that "implied consent" is contrary to established law to grant Daino's
motion to suppress.
We understand the district court's rationale. However, properly construed,
Poulton's use of the term "implied consent" must be limited to the "inaction or silence"
exhibited under the facts of that case. Any construction of Poulton as a rejection of
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"implied consent" altogether, and consent implied through unequivocal nonverbal
conduct specifically, is legally erroneous. The validity of consent does not depend on
labels and definitions characterizing the conduct in question as "implied" and "express"
or "verbal" and "nonverbal." Instead, the focus remains on the message the individual
unequivocally conveys through his or her conduct, if any, under the totality of the
circumstances.
In conclusion, the State bears the burden to prove the legality of the warrantless
search of Daino's apartment. See Cleverly, 305 Kan. at 605 (State bears burden of
proving legality of challenged search or seizure). If the State wishes to rely on the
consent exception, it must prove Daino unequivocally, specifically, freely, and
intelligently consented to any search, free from duress or coercion, under the totality of
the circumstances. This standard remains unchanged. We only clarify that an individual
may express valid consent through words, acts, or conduct, and an individual's nonverbal
conduct can be relevant in determining whether this standard has been met.
The matter must be remanded for a new hearing under the appropriate legal standards.
While we agree with the legal conclusion reached by the majority of the Court of
Appeals panel (that an individual may validly consent to law enforcement's entry and
search through nonverbal conduct), the majority did not end its analysis here. Instead, it
went on to find and conclude that "[t]he totality of circumstances shows that Daino
unequivocally, specifically, freely, and intelligently consented to officers entering his
residence to investigate the smell of marijuana." 57 Kan. App. 2d at 669. This conclusion
exceeded the scope of the panel's review.
Whether Daino voluntarily consented, free from duress or coercion, is a question
of fact to be determined by the district court under the totality of the circumstances. State
v. Thompson, 284 Kan. 763, 783, 166 P.3d 1015 (2007). Here, the district court
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concluded, as a matter of law, that Daino could not consent through nonverbal conduct.
As such, the district court did not make (nor did it need to make) the findings necessary
to support the conclusion that consent was otherwise unequivocal, specific, free, and
intelligent, and free from duress or coercion, express or implied, under the totality of the
circumstances. To the extent the record could be read to imply such findings, they were
conjectural at best because the district court knew its ruling was founded entirely on a
question of law. Indeed, as the parties agreed at oral argument, our review on appeal is
limited to deciding whether the district court's legal conclusion is correct. The majority
engaged in improper fact-finding to reach the ultimate question, which exceeded the
scope of review on appeal. See State v. Reed, 300 Kan. 494, 513, 332 P.3d 172 (2014)
(appellate courts do not make fact-findings but review those made by the district court).
Further, at this stage of the proceedings, there is great difficulty and potential
danger in determining, in isolation, the legality of the officers' initial entry into the
apartment. In his motion, Daino challenged not only the officers' entry, but also the
officers' "knock-and-talk," the subsequent search of the bedroom, and the admissibility of
any statements made to police during these encounters. Because the district court found
the officers' initial entry into the apartment to be invalid as a matter of law, it did not
reach these additional issues or make factual findings pertaining to them. As highlighted
by Judge Buser's dissenting opinion, the facts giving rise to these additional issues are
closely intertwined with those relevant to deciding whether Daino unequivocally,
specifically, and freely consented to the officers' entry, free from duress or coercion. As
such, the district court should consider these issues and any fact-finding relevant to them
together as part of the totality of the circumstances.
Outcome: The district court's legal error necessitates remand for additional proceedings and
fact-finding under the proper legal framework. See State v. Garcia, 295 Kan. 53, 64, 283P.3d 165 (2012) (where district court ruled on motion to withdraw plea based upon an erroneous understanding of the law, we must reverse the district judge's ruling and remand for another hearing applying the appropriate legal standards). Accordingly, we remand this case to the district court for further proceedings on Daino's motion to suppress consistent with our clarification of the relevant legal standards.
Affirmed in part, reversed in part, and remanded to the district court with
directions.
Plaintiff's Experts:
Defendant's Experts:
Comments: