## Facts

- Law enforcement investigated suspicious activity and odors at Gregory C. Fisher’s rural property in Pottawatomie County, Kansas.
- From a public highway, an officer smelled ether and used binoculars to observe a burn barrel and a plastic trash bag containing items associated with methamphetamine production.
- The officer drove up the driveway, knocked at the front door, received no response, and then went into the rear yard area near the buildings and fenced perimeter.
- Without a warrant, the officer seized the trash bag from the yard and transported it for testing; the contents indicated methamphetamine manufacturing materials.
- Officers then obtained and executed a search warrant for the property, finding evidence consistent with an active or recent methamphetamine lab, including precursors, equipment, and methamphetamine.
- Fisher was convicted of unlawful manufacture of methamphetamine and related possession offenses (including ephedrine with intent to manufacture, methamphetamine, and paraphernalia), and he challenged the denial of suppression, the admission of certain testimony, and alleged multiplicity in convictions.

## Issues

1. Whether the Fourth Amendment required suppression of evidence obtained under a search warrant that was based in part on a warrantless seizure of a trash bag from Fisher’s property.
2. Whether admission of challenged testimony violated the Sixth Amendment Confrontation Clause.
3. Whether convictions for possession of ephedrine and possession of paraphernalia were multiplicitous of the methamphetamine manufacture conviction.

## Decision

- The court held the trash bag was within the home’s curtilage and Fisher had a reasonable expectation of privacy in it; the warrantless entry and seizure were unconstitutional.
- The court nevertheless upheld denial of suppression because, under the independent source doctrine, the search warrant remained supported by probable cause after excising the tainted trash-bag information.
- The court rejected Fisher’s Confrontation Clause claim, concluding the challenged testimony did not violate the Sixth Amendment (or any error was harmless).
- The court held the ephedrine and paraphernalia convictions were not multiplicitous of manufacture because the offenses contained distinct elements and permitted cumulative punishment.
- The court affirmed Fisher’s convictions.

## Legal Principles

- Curtilage receives Fourth Amendment protection; in trash cases, courts consider whether the trash is within curtilage and whether the defendant had a reasonable expectation of privacy in it.
- “Open view” observations from a lawful, nonintrusive public vantage point are not searches; “plain view” concerns seizures after lawful presence in a protected area and cannot justify entry into curtilage without independent authority.
- A warrantless seizure of trash located within curtilage, not placed for public collection, can violate the Fourth Amendment.
- Under the independent source doctrine, evidence seized pursuant to a warrant need not be suppressed if probable cause exists based on untainted information after removing unlawfully obtained material from the affidavit.
- Multiplicity is avoided where each offense requires proof of an element the other does not and the legislature authorizes separate punishments.

## Conclusion

The court ruled that police unconstitutionally seized a trash bag from within the curtilage of Fisher’s rural home, but it admitted the warrant-derived evidence because the warrant was independently supported by untainted probable cause; it also found no Sixth Amendment violation and no multiplicity in the possession and manufacture convictions.


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