State v. Daino

No. 120,824

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

GIANNI MASSIMO DAINO,
Appellee.

SYLLABUS BY THE COURT

1.
The failure to cross-appeal from an adverse decision by the district court generally
bars the prevailing party from challenging the lower court's ruling on that issue.

2.
Section 15 of the Kansas Constitution Bill of Rights provides the same protection
from unlawful government searches and seizures as does the Fourth Amendment to the
United States Constitution.

3.
The State has the burden to prove by a preponderance of the evidence that a
defendant's consent to search is valid.

4.
The standard for measuring the scope of a person's consent under the Fourth
Amendment is that of objective reasonableness—what would a reasonable person have
understood by the exchange between the officer and the person.

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5.
Mere acquiescence to a claim of lawful authority is inadequate to show voluntary
consent.

6.
A defendant may validly consent for officers to enter his or her apartment by
responding nonverbally to the officers' request to enter by acts that are specific and
unequivocal, such as by opening the door widely, stepping back, and making a sweeping
gesture with his or her hand.

7.
Consent must be specific and unequivocal, but it need not be verbal. Consent may
instead be granted through gestures or other indications of agreement, so long as they are
comprehensible enough to a reasonable officer.

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed January 10,
2020. Reversed and remanded.

Kendall Kaut and Jacob M. Gontesky, assistant district attorneys, Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general, for appellant.

Senanem D. Gizaw, of Johnson County Public Defender's Office, for appellee.

Before GARDNER, P.J., BUSER, J., and LAHEY, S.J.

GARDNER, J.: This is the State's interlocutory appeal from the district court's
suppression of evidence taken from Gianni Massimo Daino's apartment. The district
court found that Daino's actions, in response to the officer's request to enter his
apartment, would be found by a reasonable person to indicate his consent for the officers
to enter. Yet the district court felt compelled by Kansas law to hold that Daino's acts were

2
implied consent, which is not valid. We find that Daino's acts, whether labeled as express
consent or implied consent, gave valid consent for officers to enter his apartment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts, as established at the suppression hearing, are not disputed. Olathe police
officers were sent to investigate a narcotics odor in an apartment complex. Officers
Robert McKeirnan and Kelly Smith responded in uniform and spoke with a male who
told them that someone in unit 48 was partying and he could smell marijuana. Before the
officers approached that unit, they could smell marijuana but could not tell where the
smell was coming from. When the officers arrived at the door of unit 48, they knocked on
the door but did not announce themselves. After about a minute, Daino, who was 18,
answered the door and opened it 8-10 inches, enough to reveal a part of his body. The
officers then noticed an overwhelming odor of fresh marijuana coming from inside
Daino's apartment and that there had been a lot of smoking as well.

McKeirnan told Daino that he knew there was a lot of marijuana in the apartment
because he could smell it, then said: "Well, here's the deal, not a huge deal, but I've got
to write a ticket if there's marijuana in the house, Okay? Because it is illegal, so let me
step in with you real quick and we will get it figured out, okay?" McKeirnan testified that
Daino then "nodded and just said, 'Okay. Let's do this.' And then at that point he opened
the door for me and invited me in." Daino had at first blocked McKeirnan's sight into his
apartment, but after McKeirnan requested to enter, Daino "opened up the door
completely and stood out of the way so that we could enter." McKeirnan said Daino
opened the door about as far as it could go in the apartment.

McKeirnan then clarified that he did not recall Daino making any verbal response.

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 "[THE STATE:] Did the defendant specifically tell you, you could come
into the apartment verbally?
"[MCKEIRNAN:] Verbally, he did not say, yes, sir, please come in.
"[THE STATE:] Did he say anything out loud to you?
"[MCKEIRNAN:] Not that I—not that I recall from that day. At that
point, he just opened up the door and allowed us into the apartment."

McKeirnan "absolutely" believed Daino was consenting to let him enter his apartment.

At counsel's request, McKeirnan stood up and replicated with the swinging door
near the witness stand the actions Daino had taken at his door. The district court later
detailed McKeirnan's demonstration this way:

"I don't know how to accurately portray this on the record, but when 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.'
"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.
....
". . . I think the officer candidly admitted it, and I appreciated that, that it was
nonverbal. It was a gesture."

Smith testified that McKeirnan knocked, Daino answered the door, McKeirnan
asked to enter, and Daino opened the door wider and stepped back to let them inside. He
believed Daino's acts meant that he was consenting to let them enter his apartment. Daino
did nothing then or later to suggest he was somehow withdrawing his consent or limiting
it, except for asking them on the "written consent to search" form not to search his
roommate's bedroom.

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 The district court also heard an audio recording of the encounter. In that recording,
McKeirnan asks, "Let me step in with you real quick and we'll get it figured out, okay?"
A voice softly responds "[O]kay." Yet neither party argues on appeal that Daino verbally
consented, and neither officer testified about the "okay" or its source at the suppression
hearing. We thus disregard it, as do the parties.

Once inside the apartment, McKeirnan asked Daino where he kept his marijuana.
Daino responded that it was in his bedroom. McKeirnan asked whether he could go to the
bedroom to get it, and Daino either nodded or said it was okay. McKeirnan told Daino
that as long as it was a little marijuana and some paraphernalia, he would write Daino a
ticket and give him a court date. Daino responded, "[I]t's a lot of weed." The officers
searched Daino's apartment and found these items:

• Black notebook which appeared to be a ledger for drug sales,
• Multiple glass bongs,
• Multiple containers with butane honey oil or "shatter" inside,
• Five 2mg Alprazolam pills,
• 15 Amphetamine/Dextroamphetamine pills,
• Numerous plastic bags of various sizes,
• Digital scale,
• Grinder,
• Paper roller,
• Package of blotter papers,
• $363 in cash,
• Three strips of paper with confirmed LSD,
• 27 grams of marijuana, and
• 2.09 grams of THC.

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 After seeing the large volume of drugs and paraphernalia in the bedroom,
McKeirnan decided not to seize anything and went to his car to get a "consent to search"
form. He reviewed that form with Daino, then Daino signed it, permitting the officers to
search the apartment except for an absent roommate's bedroom. Officers then searched
Daino's bedroom and seized the items. Because Daino had such a large volume of
marijuana, McKeirnan decided he could not just issue him a citation as he had
anticipated. So he arrested Daino and read him his Miranda rights.

The State charged Daino with intent to distribute marijuana in violation of K.S.A.
65-4105(d)(17), possession of an amphetamine in violation of K.S.A. 65-4107(d)(1), and
possession of drug paraphernalia in violation of K.S.A. 21-5709(b)(1). Daino moved to
suppress all evidence, arguing officers had found it in an illegal search in violation of the
Fourth Amendment of the United States Constitution and Section 15 of the Kansas
Constitution Bill of Rights.

At the suppression hearing, the parties agreed the legal issues were:

1. whether officers had valid consent to enter the apartment;
2. whether the search of the bedroom was valid; and
3. whether Daino's statements to the officers were admissible.

The district court ruled only on the first of these, mooting the other two.

Daino argued that the officers' entry into his apartment was unlawful because he
did not unequivocally, specifically, freely, and intelligently provide consent for them to
enter. Daino contended his actions showed mere acquiescence to the officer's request to
enter the apartment. On the other hand, the State responded that Daino gave valid
nonverbal consent and distinguished nonverbal consent from implied consent.

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 After the evidentiary hearing, the district court granted Daino's motion to suppress,
addressing only the first legal issue Daino had raised. The district court found that even
though a reasonable officer would have found Daino's actions to be free, specific, and
unequivocal consent for the officers to enter the apartment, Kansas law does not allow
implied consent. Although the district court did not agree with that law, it applied that
law anyway:

"Then I have to examine what I believe to be clear law stated by our Kansas
appellate courts, which is consent may not be implied, the way I read it, under any
circumstances, regardless of how clear I might think that the gestures might be.
"And in this case, if I haven't made it clear before, this is different than the
defendant just opening the door, opening the door and simply allowing the officers to
come in, opening the door and not affirmatively telling them that he doesn't want them to
come in—and sometimes I can't help being a little bit of a smart aleck—but I think the
universal gesture with his hands of, Come on in.
"And so, were it up to me, I would find that consent was freely and specifically
and intelligently given.
"But again, State versus 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 Blacks Law Dictionary of implied consent as, manifested 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.
". . . In our state courts, consent by [im]plication, at least when it involves homes
and DUI blood testing, is not voluntary consent. Kansas state courts want something
more.
"Again, if I haven't said it already enough times, I don't agree. I believe if it were
up to me that the Defendant 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."

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 The State took an interlocutory appeal. It argues:

 the district court's factual finding that Daino's acts would be construed by a
reasonable person as consent to enter is supported by the evidence;
 the district court's legal conclusions that express consent must be verbal and
that implied consent is invalid are erroneous;
 Daino expressly provided consent by his acts for officers to enter his
residence;
 Daino's consent, even if implied, was valid; and
 Daino's consent was valid under both Section 15 of the Kansas Constitution
Bill of Rights and under the Fourth Amendment to the United States
Constitution.

The State does not contend on appeal that the officers' smell of marijuana wafting from
Daino's apartment provided probable cause and exigent circumstances to search. See
State v. Hubbard, 309 Kan. 22, 430 P.3d 956 (2018) (finding officers had probable cause
to believe contraband or evidence of a crime was in apartment based on smell of raw
marijuana odor coming from apartment). The sole issue is consent.

I. DAINO'S ARGUMENTS ARE BARRED BY HIS FAILURE TO CROSS-APPEAL

We first address Daino's argument that the district court erred in finding
McKeirnan's testimony credible because McKeirnan's testimony contradicted itself.
Daino argues that McKeirnan testified that Daino verbally consented to the officers' entry
to the apartment and then said that Daino did not verbally consent to their entry.
Similarly, Daino contends that McKeirnan testified that Daino verbally consented to the
officers' search of his bedroom and then admitted he heard no verbal consent on the audio

8
tape to his request to search Daino's bedroom. But Daino did not file a cross-appeal
raising this or any other issue.

The failure to cross-appeal from an adverse decision by the district court generally
bars the prevailing party from challenging the lower court's ruling on that issue. See
Lumry v. State, 305 Kan. 545, 553-54, 385 P.3d 479 (2016); K.S.A. 2018 Supp. 60-
2103(h). That rule applies here. So Daino cannot challenge the sufficiency of the
evidence or the district court's credibility finding. At any rate, this court cannot reweigh
credibility. State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018) (finding appellate
courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility
determinations). We thus consider only the issues appealed by the State.

The sole issue appealed by the State, briefed by the parties, and decided by the
trial court is whether the district court erred in holding that Daino's consent for the
officers to enter his apartment and investigate was invalid because it was implied. So we
do not consider other arguments, such as whether Daino's consent was involuntary
because officers exceeded the scope of his consent, or for any other reason. Such
arguments have not been raised by either party on appeal, have not been briefed, and are
not properly before us to decide. See State v. Meredith, 306 Kan. 906, 909, 399 P.3d 859
(2017) (an issue not briefed is waived or abandoned).

II. THE DISTRICT COURT ERRED BY GRANTING DAINO'S MOTION TO SUPPRESS

A. The district court's factual findings are supported by substantial
competent evidence.

When we review a district court's motion on a motion to suppress, we first review
its factual findings to determine whether they are supported by substantial competent
evidence. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).

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 The district court's factual findings facts are not disputed on appeal. The officers
were the only witnesses at the suppression hearing. Their testimony establishes that they
were in uniform, knocked on Daino's door, spoke with Daino when he opened the door a
little, and then asked to enter. In response, Daino opened the door widely, stepped back,
and made a sweeping gesture with his hand. No evidence to the contrary was offered.

Both officers testified that they understood Daino's acts to mean that Daino was
consenting to their entrance into the apartment. As stated earlier, the district court found
the officers' testimony credible and we do not revisit that finding. The district court's
factual findings are supported by substantial competent evidence.

B. The district court's legal conclusion is erroneous.

When, as here, the facts supporting the district court's decision on a motion to
suppress are not disputed, the ultimate question of whether to suppress is a question of
law over which the appellate court exercises unlimited review. Hanke, 307 Kan. at 827.
The sole question here is a narrow question of law: Did the district court properly
determine, as a matter of law, that consent could not be implied?

Kansas construes state constitutional provisions in a manner consistent with the
Fourth Amendment.

"Kansas counts among the majority of states which have construed state
constitutional provisions in a manner consistent with the United States Supreme Court's
interpretation of the Fourth Amendment." State v. Thompson, 284 Kan. 763, 779, 166
P.3d 1015 (2007). Section 15 of the Kansas Constitution Bill of Rights provides the same
protection from unlawful government searches and seizures as the Fourth Amendment to
the United States Constitution. State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010).
The Kansas Supreme Court recently confirmed this approach:

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 "The Fourth Amendment to the United States Constitution, made applicable to
the states through the Fourteenth Amendment, protects the 'right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures.' Section 15 of the Kansas Constitution Bill of Rights provides the same
protections. State v. Ryce, 303 Kan. 899, 909, 368 P.3d 342 (2016), aff'd on reh'g 306
Kan. 682, 396 P.3d 711 (2017); see State v. Zwickl, 306 Kan. 286, 291, 393 P.3d 621
(2017) (stating this court could extend Section 15's protections beyond the federal
guarantees provided by the Fourth Amendment but has not yet done so)." State v.
Boggess, 308 Kan. 821, 825-26, 425 P.3d 324 (2018).

Daino shows no reason this court should depart from its long history of coextensive
analysis of rights under the two constitutions.

The Fourth Amendment and Section 15 of the Kansas Constitution Bill of Rights
protect the public against unlawful government searches and seizures. A government
search without a warrant is per se unreasonable unless it falls within one of the
exceptions to the warrant requirement. State v. Neighbors, 299 Kan. 234, 239, 328 P.3d
1081 (2014). One such exception is consent. A court determines the existence of consent
to a search as a question of fact determined from the totality of the circumstances. State v.
Ryce, 303 Kan. 899, 932, 368 P.3d 342 (2016), aff'd on reh'g 306 Kan. 682, 396 P.3d 711
(2017).

The test for valid consent is objective.

The State has the burden to prove by a preponderance of the evidence that a
defendant's consent to search was valid. State v. Ruden, 245 Kan. 95, Syl. ¶ 6, 774 P.2d
972 (1989). To establish valid consent, the State must prove: (1) clear and positive
testimony that consent was unequivocal, specific, and freely and intelligently given; and
(2) the absence of duress or coercion, express or implied. State v. Cleverly, 305 Kan. 598,

11
613, 385 P.3d 512 (2016). Daino does not allege any duress or coercion, so that issue is
not before us.

The sole issue briefed by the parties raises a broader question—whether Daino
consented to allow the officers to enter his apartment at all. Daino argues only that
Kansas law requires express, verbal consent and that implied consent cannot be valid. In
contrast, the State argues that Daino's actions, although nonverbal, expressly or impliedly
communicated his valid consent for the officers to enter his apartment.

Our task is not to determine what Daino may have subjectively intended. Rather,
our task is to determine, from Daino's acts, what a reasonable officer would have
objectively understood. "The standard for measuring the scope of a [person's] consent
under the Fourth Amendment is that of 'objective' reasonableness—what would the
typical reasonable person have understood by the exchange between the officer and [the
person]?" Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L. Ed. 2d 297
(1991).

We note, however, that Daino's acts after the officers entered his residence
confirm, instead of refute, his intent to consent to their entry. Daino never protested the
officers' presence. Instead, he later opened a safe for the officers, agreed officers could
search his bedroom, showed officers where the drugs were hidden, then signed a
voluntary consent to search form that the officer had reviewed with him. That form
states:

 Daino was informed of his constitutional right not to have a search made of
the property without a search warrant;
 Daino was informed of his right to refuse to consent to such a search;

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  Daino authorized McKeirnan to conduct a complete search of his
apartment and all rooms, cabinets, and boxes, "excepting Charles Ibarra's
room";
 Daino understood that anything of evidentiary value seized in the search
can be used as evidence in court;
 The officers are authorized to take from the searched property any items
which may be used as evidence in court; and
 "This written consent to search is being granted by me to the above-named
officer . . . voluntarily and without threats or promises of any kind."

Daino fully cooperated with the officers throughout the encounter, never protesting their
entry or their search. His acts confirm that he intended to agree that officers could enter
his apartment to investigate the smell of marijuana. They in no way suggest that Daino
thought officers had entered his apartment without his consent.

Our cases establish that mere acquiescence is inadequate to show consent.

We begin with the premise that mere acquiescence to a claim of lawful authority is
inadequate to show voluntary consent. State v. Jones, 279 Kan. 71, 78, 106 P.3d 1 (2005)
(finding defendant's mere acquiescence to a preliminary breath test did not establish
voluntary consent.); see State v. Parker, 282 Kan. 584, 595-96, 147 P.3d 115 (2006)
(finding defendant's consent was a submission to authority rather than a voluntary and
knowing waiver of his rights when he was illegally detained, surrounded by police
officers, witnessed the search and arrest of his friend, and was notified about a possible
warrant issued under the false identity he gave police). That law is well established. Yet
we find no Kansas Supreme Court cases holding that consent must be verbal to be valid.
That is the question here.

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 Our court has applied the "mere acquiescence" rule several times, most notably in
State v. Poulton, 37 Kan. App. 2d 299, 307-08, 152 P.3d 678 (2007). The district court
relied on that case. There, officers arrived at Poulton's home stating they were looking for
a person who had violated parole. When the officers said they wanted to go inside to find
her, Poulton offered to go inside and get her. When Poulton went inside, the officers
followed him into the house through the open door. The district court found that the
officers had implied consent to enter the residence because the officers were never told
not to enter the house.

The Court of Appeals panel reversed, finding: "The 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. It cited Black's Law Dictionary, which defined implied
consent as:

"'[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. An inference arising from a
course or conduct or relationship between the parties, in which there is mutual
acquiescence or a lack of objection under circumstances signifying assent.'" 37 Kan. App.
2d at 307.

The court stated that "[c]onsent by implication . . . is contrary to established law" and
held that the facts showed no more than "'acquiescence to a claim of lawful authority.'"
37 Kan. App. 2d at 307-08 (quoting in part Bumper v. North Carolina, 391 U.S. 543,
548-49, 88 S. Ct. 1788, 20 L. Ed. 2d 797 [1968]). As a result, the State failed to prove by
a preponderance of the evidence that Poulton unequivocally, specifically, freely, and
intelligently consented to the officers' entry into his home and did not merely submit to
lawful authority.

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 We followed Poulton in State v. Tang, No. 109,875, 2013 WL 6168664 (Kan.
App. 2013). There, under facts quite similar to Poulton's, we found no error in the district
court's suppression:

"[T]he ultimate purpose of [officer] Eichinger's entry is not the critical consideration; the
issue is whether Tang validly consented to Eichinger's entry into the home. We agree
with the district court that Tang's opening the door, walking into his home, and failing to
prevent Eichinger from following him does not show that Tang unequivocally,
specifically, freely, and intelligently consented to Eichinger's entry into his home." 2013
WL 6168664, at *5.

Later, in a car stop case, we again applied the rule that "mere acquiescence or
submission to a show of lawful authority is inadequate to demonstrate voluntary
consent." State v. Cox, 51 Kan. App. 2d 596, 601, 352 P.3d 580 (2015). There, Cox
moved to suppress all evidence stemming from Officer Peil's search of her bag in
Simmons' car. After the officer stopped Simmons and found multiple bags in her car, he
called Cox at the community corrections office to confirm that she had left her bags in
that car. Cox confirmed it and told the officer that she had left a paper shopping bag from
a particular store in the back of Simmons' car and that the bag contained a wood sander.
When Peil went to get that bag, he found multiple shopping bags from that same store in
the back of the vehicle. He asked Simmons to identify Cox's bag and then removed the
bag from the car and opened it to confirm that it contained the wood sander. When the
officer opened the bag, he discovered a methamphetamine pipe.

We affirmed suppression, finding no implicit consent to search:

"Although the facts in Poulton differ from Cox's case, the general principles of
law governing consent to search are applicable herein. The State's argument that Cox
implicitly consented to the search based on the circumstances fails for at least two
reasons. First, Simmons specifically identified the Buckle bag that belonged to Cox.
Thus, there was no need for Peil to open the bag to look for the wood sander in order to

15
 verify ownership of the bag. Second, Peil had the opportunity to ask Cox for her consent
to search the bag when he spoke with her on the telephone, but he failed to do so. Under
these circumstances, any consent implied by the situation is simply insufficient to
substitute for the required express consent. See Poulton, 37 Kan. App. 2d at 307." 51
Kan. App. 2d at 602.

The record failed to show that Cox's consent to the search of her bag was unequivocal,
specific, and freely given, so the district court properly suppressed the evidence from the
bag. But the panel did not find that implied consent could never be sufficient—it found it
insufficient under the circumstances to substitute for the required express consent.

A year later, the Kansas Supreme Court indicated that consent may be valid even
if it is nonverbal and implied. Cleverly, 305 Kan. at 613. There, the Kansas Supreme
Court found implied consent to search during a traffic stop based on the defendant's act of
handing his cigarette packages to the officer in response to the officer's request to search
them. One cigarette package contained methamphetamine. The district court denied
Cleverly's motion to suppress, ultimately determining that the search of the cigarette
packages was based on valid consent.

On appeal, the Kansas Supreme Court agreed that Cleverly had impliedly
consented to the search:

"As discussed above, the lawless conduct of the police in this circumstance was
ongoing at the time Cleverly impliedly gave his consent to search the cigarette package
by handing it to Officer Humig." 305 Kan. at 613.

True, the Court suppressed the evidence, but for another reason—it found that
Cleverly's consent had been tainted by a prior unconstitutional seizure that rendered the
consent to search involuntary. It found that the presence of multiple officers, together

16
with other post-traffic stop conduct by one officer would "invoke duress and coercion in
a rational citizen." 305 Kan. at 613. It concluded:

"In short, 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. The district court erred in refusing to suppress the
evidence seized from the cigarette package." 305 Kan. at 614.

Cleverly thus found that defendant's act of handing his cigarettes to the officer, in
response to the officer's request to search them, was valid implied consent. But that
consent was given under duress, so was involuntary. Daino alleges no duress or coercion.

Recently, in a hotel room search case, another panel of our court applied the rule
that "'mere acquiescence or submission to a show of lawful authority is inadequate to
demonstrate voluntary consent.'" State v. Metcalf, No. 117,802, 2018 WL 5851524, at *8
(Kan. App. 2018) (unpublished opinion). There, officers knocked on the door of
Metcalf's hotel room and announced, "'Tribal police, open the door.'" 2018 WL 5851524,
at *1. When Rice opened the door, one officer propped the door open with his arm, then
leaned into the room and asked if Rice could go get the defendant. Rice, who had been
standing in the suite's foyer, then walked toward the suite's living area calling the
defendant's name. The officers then entered the suite, uninvited, and followed Rice
through the foyer into the living area. The panel properly found suppression was
warranted due to lack of consent.

In Metcalf, no officer ever asked for consent to enter. And in Metcalf, the occupant
did not, by his or her actions, yield the right of way to the officers' entry. Although the
district court in Metcalf relied on the fact that Rice had stepped away from the door in a
way that suggested the officers could enter, the panel found that fact unsupported by the
record.

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 Metcalf carefully distinguished its facts from those in other cases in which officers
explicitly ask for consent to enter and the occupant responds by actions clearly yielding
the right of way.

"The State cites an 11th Circuit court decision holding that 'yielding the right-of-
way' constituted consent for officers to enter the defendant's home. United States v.
Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002). Ramirez-Chilel differs from the case
at hand because there the officers explicitly asked the defendant for consent to enter.
They also read and explained an implied consent form once they were in the home. In its
decision, the 11th Circuit court differentiated Ramirez-Chilel from United States v.
Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996), wherein the same court held that '"it is
inappropriate to 'sanction[ ] entry into the home based upon inferred consent.'"' 289 F.3d
at 752.

"In Gonzalez, the court held that when police followed the defendant's mother
into the home when she went to get a drink of water, the mother's actions were not
adequate implied consent to the police's warrantless entry to the house. See Ramirez-
Chilel, 289 F.3d at 752. In Ramirez-Chilel, the 11th Circuit court explicitly compared the
two cases and wrote: 'We can certainly make a distinction between the failure to object
when officers follow someone into their home and the act of "yielding the right-of-way"
to the officers at the person's front door.' 289 F.3d at 752.

"Here, Officers Shobney and Wamego's actions better match those of the police
in Gonzalez. The bodycam footage shows that the officers followed Rice into the suite
after she followed their directive to go search for Metcalf. Furthermore, as discussed
earlier, the trial court lacked substantial evidence for its finding that Rice 'stepped away
from the door in such a way as to suggest the officers could enter.' The bodycam footage
does not show Rice stepping away from the door at all until Officer Shobney told her to
go find Metcalf. The account Officer Shobney provided, alleging he watched Rice step
away from the door to look for Metcalf, is a factual impossibility and contradicts the
bodycam footage.

18
 "The record shows that the officers did not ask Rice to allow them into the room;
rather, Officer Shobney asked Rice to go look for Metcalf and the officers followed her.
This is more analogous to the facts in Gonzalez, where the police followed a defendant's
mother into the house when she went inside to get water, than it is to the facts in
Ramirez-Chilel, where police explicitly asked the defendant for permission to enter, and
he responded by yielding the right-of-way into the home." Metcalf, 2018 WL 5851524, at
*8.

Our court has held that a nod of the head in response to an officer's request might
be unequivocal and specific consent. State v. Seeley, No. 99,456, 2009 WL 500960, at
*4-5 (Kan. App. 2009) (unpublished opinion). There, an officer asked Seeley if the
officers could search their apartment for any type of illegal narcotics and testified that
Seeley then nodded her head in approval. The Seeley court upheld the search noting,
"[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). 2009 WL 500960, at *4. But in Seeley, defendant had also
told the officers they could "look around." 2009 WL 500960, at *3-4.

Another panel of this court recently relied on Seeley in finding that a wave paired
with opening the door wider and stepping back can be unequivocal and specific consent.
City of Topeka v. Murdock, No. 116,213, 2018 WL 385699 (Kan. App.), rev. denied 308
Kan. 1593 (2018) (unpublished opinion). There, the officer told Murdock he wanted to
speak with him about personal business and asked if he could step inside to talk.
Murdock allowed him to come inside his apartment. The defendant told officers to "come
in," then he stepped back into the apartment, pushed the door open wider, and gave a
slight wave. The panel found 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 agreed with Seeley's finding that "[n]onverbal conduct can also
constitute consent to enter an individual's home." 2018 WL 385699, at *3. The Murdock
court upheld the entry into the defendant's apartment.

19
 The undisputed facts show Daino's unequivocal, specific, free, and intelligent
consent.

We believe our prior appellate cases were correctly decided. But the facts here are
distinctively different. Officers explicitly asked Daino for permission to enter, and he
responded by yielding the right-of-way into his home. Poulton and other cases
summarized above are distinguishable from Daino's case in this important respect. They
involved an inaction on the defendant's part because the defendant was never asked for
consent to enter, the defendant in no way indicated that the officers could enter—instead,
the defendant merely failed to object when officers, uninvited, followed the defendant
into his residence.

In contrast, Daino affirmatively communicated to the officers his agreement for
them to enter his apartment by his acts in direct response to the officer's request to enter.
When the officer asked to enter, Daino opened the door widely, stepped back, and made a
sweeping gesture with his hand. As the district court found, any reasonable person would
have understood from that exchange that Daino agreed the officers could enter. There
was no ambiguity about the meaning of his acts. The uncontested facts show that Daino
yielded the right of way to the officers by his nonverbal, affirmative communication.

Daino did much more than just acquiesce or submit to a show of lawful authority.
The totality of circumstances shows that Daino unequivocally, specifically, freely, and
intelligently consented to officers entering his residence to investigate the smell of
marijuana. Although silence alone is not consent, Poulton, 37 Kan. App. 2d at 307,
silence coupled with clear, responsive, and unequivocal actions can be. And nothing in
our precedent requires consent to be verbal—it merely requires that consent be clear and
unequivocal.

20
 Federal cases uphold implied consent to enter a residence.

Although Kansas courts have not squarely held that "[c]onsent can be found from
an individual's words, acts or conduct," Krause v. Penny, 837 F.2d 595, 597 (2d Cir.
1988), our federal counterparts have.

"For consent to be voluntary, the government must receive either express or implied
consent. See United States v. Jones, 701 F.3d 1300, 1320-21 (10th Cir. 2012).
"Implied consent to enter a home is no less valid than explicit consent. See id.
Consent 'must be clear but it need not be verbal. Consent may instead be granted through
gestures or other indications of acquiescence, so long as they are sufficiently
comprehensible to a reasonable officer.' United States v. Guerrero, 472 F.3d 784, 789-90
(10th Cir. 2007). 'The focus is not whether [one] subjectively consented, but rather,
whether a reasonable officer would believe consent was given' as 'inferred from words,
gestures, or other conduct.' United States v. Pena-Ponce, 588 F.3d 579, 584 (8th Cir.
2009)." United States v. Lopez-Carillo, 536 Fed. Appx. 762, 767-68 (10th Cir. 2013).

The rule that "consent must be clear, but it need not be verbal," United States v.
Guerrero, 472 F.3d 784, 789 (2007), makes good sense, as actions may be just as clear
and responsive as words.

Daino suggests that the federal circuits do not uphold implied consents for police
officers' entries of residences. Although we have not conducted an exhaustive study of
that topic, our research shows that federal cases consistently uphold actual consent,
whether express or implied, for officers to enter a residence. See, e.g., United States v.
Faler, 832 F.3d 849 (8th Cir. 2016) (finding implied consent to enter when officer asked
to come in and apartment tenant opened the door wider and moved out of the way);
United States v. Sabo, 724 F.3d 891, 894 (7th Cir. 2013) (finding implied consent when
arrestee opened door, stepped back and to the side, allowing police into his trailer);
United States v. Jones, 701 F.3d 1300, 1321 (10th Cir. 2012) (finding implied consent for

21
officers to enter home because defendant's affirmative acts such as unlocking his
backdoor, entering, and gesturing toward the officers, were "not actions that a reasonable
officer would have interpreted as signaling Mr. Jones's refusal of the officers' entry into
his residence"); United States v. Carter, 378 F.3d 584, 588 (6th Cir. 2004) (finding
implied consent to enter residence because defendant stepped aside to let police officers
inside after they knocked on his hotel room door and asked for permission to enter);
United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002) (finding implied
consent to enter trailer because defendant yielded right of way to officers); United States
v. Genao, 281 F.3d 305, 309-10 (1st Cir. 2002) (finding implied consent to search
apartment when defendant volunteered that he had a key to the apartment and showed the
police how the key worked); United States v. Rosi, 27 F.3d 409, 412 (9th Cir. 1994)
(finding implied consent to enter condominium because defendant provided agents with
key so they could enter and defendant could change clothes). Those cases show that
voluntariness is a question of fact to be determined from all the surrounding
circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041, 36 L. Ed.
2d 854 (1973).

The Fourth Amendment to the Constitution of the United States protects only
against unreasonable searches and seizures. State v. Kimberlin, 26 Kan. App. 2d 28, 35,
977 P.2d 276 (1999) (finding resident's consent given to one officer to enter house to
protect her from violence provided backup officer with implied consent to enter house for
safety of first officer). The typical reasonable person would have understood by the
exchange between the officers and Daino that Daino was consenting to officers entering
his apartment. See Jimeno, 500 U.S. at 251. The State met its burden to prove by a
preponderance of the evidence that Daino's consent was unequivocal, specific, and freely
and intelligently given. Daino validly consented to the officers' entry into his apartment.
He did not merely acquiesce or submit to a show of lawful authority.

22
 We reverse the district court's order of suppression and remand the case for further
proceedings.

***

BUSER, J., dissenting: I dissent. Under the totality of circumstances—especially
Officer Robert McKeirnan's dissembling statements made to Gianni Daino outside the
doorway of his apartment and Daino's silent gesture and demeanor in response to those
statements—I would find the State failed to provide clear and positive testimony that
consent to enter the apartment to conduct a search and seizure was unequivocal, specific,
and freely and intelligently provided. See State v. Poulton, 37 Kan. App. 2d 299, 307,
152 P.3d 678 (2007), aff'd in part and rev'd in part on other grounds 286 Kan. 1, 179
P.3d 1145 (2008) (affirming the decision of the Court of Appeals to reverse the
convictions based on the initial search).

Officer McKeirnan made the following statements to Daino upon the defendant
opening the door, "How's it going? Oh wow, yeah, it is here. Okay. You've got a bunch of
weed in here, man." The officer then informed Daino, "Well, here's the deal, not a huge
deal, but I've got to write a ticket if there's marijuana in the house, Okay? Because it is
illegal, so let me step in with you real quick and we will get it figured out, okay?" In
response, Daino opened the door, silently gestured, and the officers entered the
apartment.

There are three principal reasons I believe that any implied consent by Daino was
not unequivocal, specific, and freely and intelligently provided. First, it is readily
apparent that Officer McKeirnan did not explicitly or implicitly inform Daino that his
request to "step in with you real quick" was to search the premises and seize marijuana or
evidence. Without the officer advising Daino of his intended purpose for entering the

23
apartment, any resulting consent—whether explicit or implied—was not knowing and
informed.

Second, although it is a preferred practice but not a mandatory requirement, the
officer did not inform Daino of his right to refuse the officers' entry into the residence.
See Poulton, 37 Kan. App. 2d 299, Syl. ¶ 4 ("A court decides the question of
voluntariness based on the totality of circumstances, considering whether the individual
was threatened or coerced and whether the individual was informed of his or her
rights."). (Emphasis added.) While Officer McKeirnan possessed a consent to search
form that summarized Fourth Amendment search and seizure rights, this important
information was not provided to Daino at the doorway. Instead, the consent form was
given to Daino for his review and signature several minutes after entry into his apartment
and after two searches of his bedroom already had resulted in the discovery of illegal
drugs and contraband. The after-the-fact written consent to search the apartment and
seize evidence obviously did not retroactively validate the initial uninformed implied
consent to enter the apartment. In summary, I would find Officer McKeirnan's doorway
statements were insufficient to provide any basis for Daino to make a knowing and
intelligent consent.

Third, as noted by my colleagues: "'The standard for measuring the scope of a
[person's] consent under the Fourth Amendment is that of "objective" reasonableness—
what would the typical reasonable person have understood by the exchange between the
officer and [the person]?' Florida v. Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 114 L.
Ed. 2d 297 (1991)." Slip op. at 12. The question is, therefore, presented: What would a
reasonable person understand by the doorway exchange between Officer McKeirnan and
Daino?

I submit that not only did Officer McKeirnan's statements at the doorway
insufficiently inform Daino of the officer's purpose in seeking entry into the apartment or

24
inform Daino of his constitutional right to refuse entry, Officer McKeirnan's statements
were also misleading and would not have conveyed to a reasonable person that the officer
was seeking consent to enter the apartment to search for illegal drugs and contraband.
Based on Officer McKeirnan's vague statements to Daino about "step[ping] in with you
real quick," writing a ticket for marijuana possession because it was "not a huge deal,"
and getting it "figured out," a reasonable person would not have understood that the
officer was seeking entry in order to search the apartment. On the contrary, a reasonable
person would understand that the officer's purpose was to enter the apartment to facilitate
writing the citation. In this context, I would conclude that Daino was silently acquiescing
to Officer McKeirnan's claim of lawful authority to enter the apartment because the
officer knew there was marijuana inside, and he was required to issue a citation for this
violation of law.

My colleagues acknowledge that acquiescence is not informed consent. Slip op. at
13; see Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 20 L. Ed. 2d
797 (1968) (State does not meet its burden to prove voluntary consent to search "by
showing no more than acquiescence to a claim of lawful authority."); 37 Kan. App. 2d
299, Syl. ¶ 5 ("A defendant's acquiescence or implied consent to an officer's entry into his
or her home does not meet the standard for voluntary consent to enter the home."). They
dispute, however, that Daino simply acquiesced to Officer McKeirnan's claim of lawful
authority in part based on the officer's testimony that the officer "'absolutely' believed
Daino was consenting to let him enter his apartment." Slip op. at 4. While true, Officer
McKeirnan also candidly testified that he "assumed that [Daino] was agreeing with me"
to allow entry into the apartment. (Emphasis added.)

I would contend a reasonable person would understand that Daino's silence and
gesture in response to Officer McKeirnan's dissembling statements made at the doorway
were not his expression of fully informed and freely-given consent to enter the apartment
to search and seize incriminating evidence. On the contrary, a reasonable person would

25
understand Daino's nonverbal gesticulation as his act of resignation or acquiescence to
being caught smoking marijuana, having an officer inform him that his conduct was
illegal, and cooperating with the officer's request to enter the apartment in order to
process the citation.

In this regard, Officer McKeirnan provided important testimony that Daino was
merely acquiescing to his request at the doorway to "let me step in with you real quick."
Daino was only 18 years of age. Officer McKeirnan testified at the preliminary hearing
that when he opened the door, Daino "kind of hung his head and had me come in." The
officer described Daino as emotionally upset and crying upon the officers' entry into the
apartment. According to Officer McKeirnan testifying at the suppression hearing, "It
seemed like he was upset that he messed up. He seemed like he was upset at himself." At
both the preliminary hearing and hearing on the motion to suppress, Officer McKeirnan
characterized Daino's demeanor as "compliant" or "very compliant." Daino's emotional
response upon talking with Officer McKeirnan at the doorway, coupled with his quiet,
compliant behavior, persuade me that his gesture at the doorway was merely
acquiescence to the officer's authority upon being advised that Daino had committed an
illegal act and was about to receive a citation inside his apartment.

In conclusion, under the totality of these circumstances, I would find that Daino
did not unequivocally, specifically, and freely and intelligently consent to Officer
McKeirnan's entry into his apartment. Accordingly, I would affirm the district court's
order suppressing the evidence due to the violation of the Fourth Amendment.

26