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Law School Case Brief

State v. Fisher - 283 Kan. 272, 154 P.3d 455 (2007)


In determining whether probable cause exists to support a search warrant, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of any persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. When an affidavit in support of an application for search warrant is challenged, the task of the reviewing court is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. This standard is inherently deferential. It does not demand that the reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided substantial basis for the magistrate's determination that there is a fair probability that evidence will be found in the place to be searched. 


Defendant Gregory C. Fisher was convicted of unlawful manufacture of methamphetamine, possession of ephedrine with the intent to manufacture methamphetamine, possession of anhydrous ammonia in an unapproved container for the production of methamphetamine, possession of methamphetamine, and possession of paraphernalia for use in manufacturing methamphetamine. On appeal, Defendant argued, inter alia, that the trial court erred by denying his motion to suppress evidence because the facts upon which the search warrant was based were insufficient to form the basis of probable cause. 


Did the district court err in failing to suppress evidence obtained pursuant to a search warrant partially based upon the contents of a trash bag seized from defendant's property? 




The Court disagreed with defendant. An officer noted a smell of ether, a substance used in the manufacture of methamphetamine. The officer noticed yellow bottles in a trash bag that looked like bottles usually containing methanol, which could be an ingredient in the manufacture of methamphetamine. The bottles' identification by the officer - who at virtually the identical location, i.e., the barn, hours earlier had noticed the strong smell of ether - was a circumstance to be considered in the probable cause analysis. A concerned citizen's notice of a peculiar smell in burning trash was in some measure corroborated by the strong smell of ether on the premises. The corroboration of part of the citizen's story suggested the reliability of the remainder of the officer's personally sensed information, i.e., the observation of vehicles coming and going and staying for a short time at the residence. Therefore, probable cause existed for the issuance of the search warrant.

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