1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,468

STATE OF KANSAS,

Appellee,

v.

JORDAN A. MULLEN,

Appellant.

SYLLABUS BY THE COURT

1.

When a trial court chooses to address an issue not raised by the parties, an 

appellate court may address the issue as well.

2.

The Fourth Amendment to the United States Constitution guarantees the right to 

be free from unreasonable searches and seizures and states that "no Warrants shall issue, 

but upon probable cause, supported by Oath or affirmation." Section 15 of the Kansas 

Constitution Bill of Rights provides the same protections. 

3.

When evidence is illegally obtained, its suppression may be warranted under the 

exclusionary rule, which is a judicially created rule that safeguards against 

unconstitutional searches and seizures by suppressing illegally seized evidence as a 

deterrent to future violations. 
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4.

A judge deciding whether an affidavit supplies probable cause for a search warrant 

considers the totality of the circumstances presented and makes a practical, commonsense decision whether there is an adequate showing that a crime has been or is being 

committed and there is a fair probability that contraband or evidence of a crime will be 

found in a particular place.

5.

When an affidavit in support of an application for a 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. 

6.

An anticipatory warrant is a warrant based upon an affidavit showing probable 

cause that upon the happening of some future event (i.e., a triggering condition), certain 

evidence of a crime will be located at a specified place. 

7.

For an anticipatory warrant to comply with the Fourth Amendment's requirement 

of probable cause, two prerequisites of probability must be satisfied: (1) If the triggering 

condition occurs, there is a fair probability that contraband or evidence of a crime will be 

found in a particular place; and (2) there is a fair probability that the triggering condition 

will occur. The supporting affidavit must provide the magistrate with sufficient 

information to evaluate both aspects of the probable cause determination.

8.

When an anticipatory search warrant covering a place is triggered upon the 

"controlled delivery" of contraband to that location, the means employed to deliver the 
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contraband must (1) be performed under the control and supervision of law enforcement 

officers and (2) establish a fair probability that the contraband will be found inside the 

location upon execution of the search warrant. 

Review of the judgment of the Court of Appeals in 51 Kan. App. 2d 514, 348 P.3d 619 (2015).

Appeal from Johnson District Court; JOHN E. BENNETT and JANICE RUSSELL, judges. Opinion filed April

22, 2016. Judgment of the Court of Appeals is affirmed. Judgment of the district court is affirmed.

Joanna Labistida, of Kansas Appellate Defender Office, argued the cause and was on the brief

for appellant. 

Steven J. Obermeier, assistant district attorney, argued the cause, and, Stephen M. Howe, district 

attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: Jordan Mullen filed a motion to suppress evidence resulting from a 

search of a house where he was staying in Shawnee, Kansas. The search was conducted 

pursuant to an anticipatory search warrant which purported to give law enforcement 

authority to search the house once a suspicious package—addressed to the house in 

Shawnee and likely containing illegal drugs—was successfully delivered to a resident of 

the house. The district court denied Mullen's motion to suppress, concluding that the 

search warrant was supported by probable cause and that the event triggering the 

warrant's execution occurred when Mullen, under the surveillance of law enforcement, 

retrieved the package from the front porch and brought it inside the home. The Court of 

Appeals agreed and affirmed the district court's decision regarding the search warrant and 

its execution. See State v. Mullen, 51 Kan. App. 2d 514, 348 P.3d 619 (2015). This court 

granted Mullen's petition for review challenging the Court of Appeals decision. We 

affirm. 
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FACTS

On November 8, 2011, Steve Hahne, a detective with the special investigations 

unit of the Shawnee Police Department, prepared an affidavit in support of a search 

warrant for a home located in Shawnee, Kansas. Within the affidavit, Hahne stated the 

following pertinent facts:

"1. 11/08/2011, the Affiant was contacted by Detective Shaun Miller of the Shawnee 

Police Department's Special Investigations Unit. Detective Miller was contacted 

on the telephone by United States Postal Inspector Justin Lewis. Postal Inspector 

Lewis reported while he was checking mail on today's date at the Kansas City, 

Missouri processing and distribution center located at 1700 Cleveland Ave., he 

saw a box addressed to a name that was un-readable at 5807 Meadowsweet Lane, 

Shawnee, Kansas. Inspector Lewis checks mail randomly in order to intercept 

contraband being delivered via United States Postal Service. The box weighs 5 

lbs. 12.6 ounces. The package originated from a U.S. Post Office located in 

Oakland, California. The return address on the package is also from Oakland, 

California. The Affiant knows through his training and experience that California 

is a source state of high grade marijuana as well as other illicit substances.

"2. A computer check revealed 5807 Meadowsweet Shawnee; Johnson County, 

Kansas is occupied by a David B. Grooms, w/m, 01/04/1967 and a Jacob R. 

Grooms, w/m, 06/05/1993.

"3. The parcel from the sort was placed with other unrelated parcels. Kansas City 

Missouri Police Officer Canine Handler Antonio Garcia directed K-9 Franz to 

the packages. Upon K-9 Franz coming into contact with the parcel, K-9 Franz sat 

alerting to the odor of narcotics in or about the parcel. The parcel was then taken 

into the custody of The Kansas City, Missouri Police Department, until a search 

warrant could be obtained.
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"4. K-9 Franz is a 7 year old German shepherd and is trained and certified to alert to 

the odors of marijuana, cocaine, methamphetamine, and heroin. K-9 Franz has 

assisted in the seizure of 4,641.4 pounds of marijuana, 75.8 pounds of cocaine, 

13 pounds of Methamphetamine, 23.3 pounds of Heroin, and $1,845,686.00 in 

U.S. currency.

"5. The Affiant knows that U.S. Postal Service Inspector Justin Lewis will attempt to 

deliver the package to a resident of 5807 Meadowsweet Lane, Shawnee, Johnson 

County, Kansas. Based on the successful controlled delivery to a resident, the 

Affiant is requesting permission to execute this warrant at 5807 Meadowsweet 

Lane, Shawnee, Johnson County, Kansas. Should the delivery not be made, this

warrant will not be executed." (Emphasis added.)

Based on these facts, a district court judge signed a search warrant for 5807 

Meadowsweet Lane, authorizing law enforcement to search the home for evidence of 

illegal drugs. 

That same day, Hahne, along with other members of the special investigations 

unit, set up a surveillance of the home. At approximately 1 p.m., Inspector Lewis, dressed 

as a mail carrier and driving a postal vehicle, arrived at the residence with the package. 

Lewis knocked on the front door and announced, "Post Office," but no one answered. 

After waiting about a minute, Lewis set the package down by the front door (the 

package's sender did not require a signature for delivery) and left in the postal vehicle. At 

1:06 p.m., an individual, later identified as Mullen, came out of the house through the 

front door, retrieved the package, and went back inside. 

At 1:17 p.m., law enforcement entered the home and found only Mullen inside the 

house. The package, still unopened, was lying on the kitchen countertop. Law 

enforcement opened the package and discovered marijuana inside (the Johnson County 

Crime lab later confirmed that the package contained 896.1 grams of marijuana). After 
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being apprised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 

16 L. Ed. 2d 694 (1966), Mullen told Hahne that he had recently begun staying at the 

house and had agreed to be there that day so he could bring the package inside the house 

once it arrived in the mail. Mullen was then supposed to watch over the package until one 

of three people (Alex Firth, Noah Schrader, or Jacob Grooms) arrived at the house to 

retrieve it. Mullen admitted to knowing that the package contained marijuana. 

Mullen was ultimately charged with possession of marijuana with the intent to 

distribute. Mullen filed a motion to suppress the marijuana as well as his statements to the 

police, arguing that the triggering event within the anticipatory search warrant (i.e., "the 

successful controlled delivery to a resident" of the home) required Lewis to hand deliver 

the package to a resident of the home. Mullen contended that because Lewis simply left 

the package on the front porch, a controlled delivery never occurred and, consequently, 

law enforcement acted in violation of the search warrant when they entered the home 

after Mullen retrieved the package.

The State argued that a controlled delivery did occur because, once the postal 

inspector left the package on the front porch, the package remained under the constant 

surveillance of law enforcement until Mullen eventually brought the package inside the 

home. Thus, according to the State, law enforcement acted properly in executing the

search warrant. 

At the hearing on the motion to suppress, Detective Hahne stated that the warrant's 

triggering event required that the package, while under the surveillance of law 

enforcement, be delivered to the home and that the package be taken inside the home by a 

resident. Though he had agreed with defense counsel's statement at Mullen's preliminary 

hearing that a "controlled delivery" would require handing the package to a resident of 

the home, Hahne indicated at the suppression hearing that a controlled delivery was 
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accomplished in this case when Mullen, under the law enforcement surveillance, 

retrieved the package from the front porch and brought it inside the home.

At the conclusion of the hearing, the district court reserved ruling on whether a 

controlled delivery occurred and asked for supplemental briefing on whether probable 

cause to search a home for illegal drugs is established merely because a resident of the 

home brings a package—mailed to the residence and likely containing illegal drugs—into 

the home. At a subsequent hearing, the district court ruled that the search warrant was 

supported by probable cause and that law enforcement effected a controlled delivery of 

the package, reasoning that Mullen's retrieval of the package from the front porch while 

under police surveillance was sufficient to trigger execution of the search warrant.

Later, Mullen agreed to a bench trial on stipulated facts while reserving his right to 

appeal the district court's denial of his motion to suppress. The district found Mullen 

guilty, imposed an underlying prison sentence of 22 months and placed him on probation 

for 18 months.

On appeal, the Court of Appeals rejected Mullen's arguments concerning the lack 

of probable cause supporting the search warrant or that a controlled delivery never 

occurred. The Court of Appeals, however, found that the record failed to show that the 

district court advised Mullen of his right to a jury trial before he waived that right by 

signing the stipulation of facts. As a result, the Court of Appeals reversed Mullen's 

conviction and remanded the case for further proceedings. Mullen, 51 Kan. App. 2d at 

526. Mullen filed a petition with this court seeking review of the Court of Appeals 

decision affirming the denial of his motion to suppress. The State filed a cross-petition 

seeking review of the Court of Appeals decision concluding that Mullen's jury trial 

waiver was invalid. This court granted Mullen's petition for review but denied the State's 

cross-petition. 
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ANALYSIS 

Probable Cause for the Search Warrant

Mullen argues that the Court of Appeals erred in concluding that the search 

warrant was supported by probable cause. He contends that without evidence showing 

that occupants of a particular home are involved in drug activity, the mere fact that an 

occupant brings a package—addressed to the residence and likely containing illegal 

drugs—inside the home does not provide probable cause to search the home for illegal 

drugs.

Before the Court of Appeals, the State argued that Mullen should not be allowed 

to raise this argument on appeal because he failed to raise it before the district court. The 

State pointed out that Mullen's sole argument in favor of suppression was that the event 

triggering the warrant's execution, i.e., a controlled delivery of the package to a resident, 

never occurred. The Court of Appeals rejected the State's contention and addressed the 

merits of Mullen's probable cause argument, noting that the district court, in denying 

Mullen's suppression motion, addressed whether probable cause supported the 

anticipatory search warrant. Mullen, 51 Kan. App. 2d at 519-20. We conclude that the 

Court of Appeals properly addressed the issue; likewise, we reach the merits of the issue. 

See Huffmier v. Hamilton, 30 Kan. App. 2d 1163, 1167, 57 P.3d 819 (2002), rev. denied

275 Kan. 964 (2003) (when trial court chooses to address issue not raised by the parties, 

appellate court may address issue as well).

The Fourth Amendment to the United States Constitution guarantees the right to 

be free from "unreasonable searches and seizures" and that "no Warrants shall issue, but 

upon probable cause, supported by Oath or affirmation." Section 15 of the Kansas 

Constitution Bill of Rights provides the same protections. State v. Daniel, 291 Kan. 490, 
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498, 242 P.3d 1186 (2010), cert. denied 563 U.S. 945 (2011). When evidence is illegally 

obtained, its suppression may be warranted under the exclusionary rule, which is a 

judicially created rule that safeguards against unconstitutional searches and seizures by 

suppressing illegally seized evidence as a deterrent to future violations. See United States 

v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Daniel, 291 Kan. at 

496. 

A judge deciding whether an affidavit supplies probable cause for a search warrant 

considers the totality of the circumstances presented and makes "a practical, commonsense decision whether a crime has been or is being committed and whether there is a fair 

probability that contraband or evidence of a crime will be found in a particular place." 

State v. Hicks, 282 Kan. 599, 613-14, 147 P.3d 1076 (2006). In Hicks, this court 

discussed an appellate court's role when reviewing a lower court's probable cause 

determination:

"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 a 

substantial basis for the magistrate's determination that there is a fair probability that 

evidence will be found in the place to be searched. Because the reviewing court is able to 

evaluate the necessarily undisputed content of an affidavit as well as the issuing 

magistrate, the reviewing court may perform its own evaluation of the affidavit's 

sufficiency under this deferential standard." 282 Kan. 599, Syl. ¶ 2.

In United State v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006), 

the United States Supreme Court upheld the validity of anticipatory search warrants 

under the Fourth Amendment. The Court stated:
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"An anticipatory warrant is 'a warrant based upon an affidavit showing probable cause 

that at some future time (but not presently) certain evidence of crime will be located at a 

specified place.' [Citation omitted.] Most anticipatory warrants subject their execution to 

some condition precedent other than the mere passage of time—a so-called 'triggering 

condition.' . . . If the government were to execute an anticipatory warrant before the 

triggering condition occurred, there would be no reason to believe the item described in 

the warrant could be found at the searched location; by definition, the triggering 

condition which establishes probable cause has not yet been satisfied when the warrant is 

issued." 547 U.S. at 94.

The Grubbs Court then concluded:

"[F]or a conditioned anticipatory warrant to comply with the Fourth Amendment's 

requirement of probable cause, two prerequisites of probability must be satisfied. It must 

be true not only that if the triggering condition occurs 'there is a fair probability that 

contraband or evidence of a crime will be found in a particular place,' [citation omitted] 

but also that there is probable cause to believe the triggering condition will occur. The 

supporting affidavit must provide the magistrate with sufficient information to evaluate 

both aspects of the probable-cause determination. [Citation omitted.]" 547 U.S. at 96-97.

See also United States v. Rowland, 145 F.3d 1194, 1201 (10th Cir. 1998) ("As with all 

warrants, probable cause to support an anticipatory warrant 'does not exist unless a 

sufficient nexus between the [contraband] and the place to be searched exists.' [Citation 

omitted.]").

In Grubbs, officers from the Postal Inspection Service arranged a controlled 

delivery of a videotape containing child pornography to the defendant's residence. The 

defendant had ordered the videotape from a website operated by an undercover postal 
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inspector. The affidavit made out in support of the search warrant for the defendant's 

home stated: 

"'Execution of this search warrant will not occur unless and until the parcel has been 

received by a person(s) and has been physically taken into the residence. . . . At that time, 

and not before, this search warrant will be executed by me and other United States Postal 

inspectors, with appropriate assistance from other law enforcement officers in accordance 

with this warrant's command.'" 547 U.S. at 92. 

In concluding that the search warrant was supported by probable cause, the Court 

stated:

"[T]he occurrence of the triggering condition—successful delivery of the videotape to 

[the defendant's] residence—would plainly establish probable cause for the search. In 

addition, the affidavit established probable cause to believe the triggering condition 

would be satisfied. Although it is possible that [the defendant] could have refused 

delivery of the videotape he had ordered, that was unlikely. The Magistrate therefore 'had 

a "substantial basis for . . . conclud[ing]" that probable cause existed.' [Citations 

omitted.]" 547 U.S. at 97. 

Mullen argues that Grubbs stands for the proposition that in order for an 

anticipatory search warrant of a home to be supported by probable cause, there must be 

evidence indicating that an occupant of the home anticipates receiving a package in the 

mail containing contraband. In support of this contention, Mullen points to a single 

sentence in Grubbs' statement of facts which states that the defendant "purchased a 

videotape containing child pornography from a Web site operated by an undercover 

postal inspector." 547 U.S. at 92. 

Mullen places too much significance on this sentence. Nowhere in Grubbs' legal 

analysis did the Court point to or rely on evidence showing the defendant's knowledge or 
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intention of receiving child pornography through the mail as contributing to the probable 

cause necessary to issue an anticipatory search warrant of the defendant's residence. 

Instead, the Court focused solely on whether the affidavit made in support of the search 

warrant established a fair probability (i.e., probable cause) that contraband or evidence of 

a crime would be found inside the defendant's home once the triggering event occurred 

and whether there was a fair probability that the triggering event would occur. Because 

execution of the search warrant was contingent upon the government delivering the 

package—addressed to the defendant's home and containing child pornography—to the 

defendant's residence, the Court concluded that both prongs of the probable cause 

determination were satisfied. 547 U.S. at 94-97.

An argument similar to the one Mullen raises here was addressed and rejected by 

the Tenth Circuit Court of Appeals in United States v. Hugoboom, 112 F.3d 1081 (10th 

Cir. 1997). There, the court concluded that an anticipatory search warrant of a residence 

was supported by probable cause when the affidavit made in support of the warrant 

merely alleged that a parcel containing contraband was mailed to the residence and that 

the warrant would not be executed until the parcel was delivered "to a responsible adult at 

the residence . . . who willingly 'accept[s] delivery' and signs a receipt therefor." 112 F.3d 

at 1083. In reaching this holding, the Hugoboom court rejected the defendant's argument 

that the search warrant lacked probable cause because there was no evidence—besides 

the parcel being mailed to the residence—of drug activities taking place at the location. 

112 F.3d at 1086. 

The Tenth Circuit later fleshed out Hugoboom's holding in Rowland. There, the 

court stated:

"As recognized in Hugoboom, when the warrant application indicates there will 

be a government-controlled delivery of contraband to the place to be searched, probable 
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cause for a search is established and an anticipatory warrant may be issued, provided the 

warrant's execution is conditioned on the contraband's delivery to, or receipt at, the 

designated place. [Citations omitted.] In this context, the Hugoboom court indicated that 

when the warrant affidavit refers to a controlled delivery of contraband to the place 

designated for search, the nexus requirement of probable cause is satisfied and the 

affidavit need not provide additional independent evidence linking the place to be 

searched to criminal activity." (Emphasis added.) Rowland, 145 F.3d at 1202-03.

See also United States v. Leidner, 99 F.3d 1423, 1427 (7th Cir. 1996) ("Several circuits 

agree that in order for an anticipatory warrant to satisfy the probable cause standard it 

must demonstrate that contraband is on a 'sure course' to the destination to be searched.").

Similarly, in United States v. Lawson, 999 F.2d 985 (6th Cir. 1993), the Sixth 

Circuit concluded that a controlled delivery of a package—mailed to the defendant's 

residence and containing 6 ounces of cocaine—provided probable cause to issue an 

anticipatory search warrant of the residence. Notably, the court rejected the argument that 

additional evidence connecting the residence with drug activity was needed in order to 

guard against an occupant being "set up" by unknowingly receiving contraband in the 

mail. The court reasoned "that one does not send six ounces of cocaine through the mail 

to a specific address on a whim." 999 F.2d at 988. See also United States v. Washington, 

852 F.2d 803, 804 (4th Cir. 1988) (rejecting defendant's argument that delivery of 

package addressed to his residence and containing 154 grams of heroin did not provide 

probable cause for an anticipatory search warrant of his home; though neither the 

defendant nor his roommates were named on the package as the intended recipient, court 

reasoned that "[i]t is common knowledge that fictitious names are frequently used in 

illicit drug trafficking."). 
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The following facts can be gleaned from the affidavit at issue here:

• The package had been flagged as suspicious by a postal inspector at the 

Kansas City, Missouri, processing and distribution center;

• The package had been mailed from a known narcotics source state;

• The package was addressed to an illegible name at a house located on 

Meadowsweet Lane in Shawnee;

• The package weighed 5 lbs. 12.6 oz;

• A K-9 unit trained and certified to alert to the odors of marijuana, cocaine, 

methamphetamine, and heroin alerted on the package; and

• A search of the house on Meadowsweet Lane would not occur until a 

controlled delivery of the package to a resident of the house was 

accomplished.

These facts establish a fair probability that the package—addressed to the 

residence on Meadowsweet Lane—contained illegal drugs and, thus, constituted evidence 

of an illegal drug trafficking scheme. Cf. State v. Barker, 252 Kan. 949, 959-60, 850 P.2d 

885 (1993) (A K-9 alert may supply probable cause necessary to search a vehicle as long 

as there is some evidence that K-9's behavior reliably indicates the likely presence of a 

controlled substance.). Further, the search warrant's triggering event—the controlled 

delivery of the package to a resident of the house—would establish a fair probability that, 

upon execution of the search warrant, contraband or evidence of a crime would be found 

inside the house. Additionally, the affidavit established probable cause to believe that the 

triggering event—a controlled delivery to a resident of the house, effected by a postal 

inspector—would be satisfied. Thus, we conclude that the affidavit provided a substantial 

basis for the district court judge's determination that probable cause supported a search 

warrant of the home.
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The Controlled Delivery

Mullen argues that the search warrant was not validly executed because the 

triggering event—a successful controlled delivery to a resident of the home—did not 

occur. Mullen contends that in order to accomplish a controlled delivery, Inspector Lewis 

was required to hand deliver the package to a resident of the home.

Whether the undisputed facts of this case establish that a controlled delivery was 

accomplished appears to raise a question of law subject to unlimited review. See State v. 

James, 301 Kan. 898, 908, 349 P.3d 457 (2015) ("When the material facts are not in 

dispute, as here, we will exercise plenary review of the district court's ruling on a motion 

to suppress evidence."). Relevant to this inquiry are the guiding principles stated in Hicks

for determining whether an affidavit establishes probable cause for a search warrant: 

"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 a 

substantial basis for the magistrate's determination that there is a fair probability that 

evidence will be found in the place to be searched. Because the reviewing court is able to 

evaluate the necessarily undisputed content of an affidavit as well as the issuing 

magistrate, the reviewing court may perform its own evaluation of the affidavit's 

sufficiency under this deferential standard." (Emphasis added.) 282 Kan. 599, Syl. ¶ 2.

To support his argument that a controlled delivery requires a hand-to-hand 

delivery, Mullen points to two Kansas cases: State v. Duhon, 33 Kan. App. 2d 859, 861, 

109 P.3d 1282 (2005), and State v. Windes, 13 Kan. App. 2d 577, 578-79, 776 P.2d 477 

(1989). While both cases describe, within their respective statement of facts, a controlled 

delivery occurring when a package was directly handed to each defendant, the State 
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correctly responds that "neither case addressed whether a hand-to-hand delivery was the 

only method through which a controlled delivery could be completed." 

In determining how a controlled delivery is accomplished, the Court of Appeals 

panel in this case looked to the United States Supreme Court's discussion of the subject in 

Illinois v. Andreas, 463 U.S. 765, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983). There, the 

Court stated:

"The lawful discovery by common carriers or customs officers of contraband in 

transit presents law enforcement authorities with an opportunity to identify and prosecute 

the person or persons responsible for the movement of the contraband. To accomplish 

this, the police, rather than simply seizing the contraband and destroying it, make a socalled controlled delivery of the container to its consignee, allowing the container to 

continue its journey to the destination contemplated by the parties. The person dealing in 

the contraband can then be identified upon taking possession of and asserting dominion 

over the container.

"The typical pattern of a controlled delivery was well described by one court:

'Controlled deliveries of contraband apparently serve a useful 

function in law enforcement. They most ordinarily occur when a carrier, 

usually an airline, unexpectedly discovers what seems to be contraband 

while inspecting luggage to learn the identity of its owner, or when the 

contraband falls out of a broken or damaged piece of luggage, or when 

the carrier exercises its inspection privilege because some suspicious 

circumstance has caused it concern that it may unwittingly be 

transporting contraband. Frequently, after such a discovery, law 

enforcement agents restore the contraband to its container, then close or 

reseal the container, and authorize the carrier to deliver the container to 

its owner. When the owner appears to take delivery he is arrested and the 

container with the contraband is seized and then searched a second time 

for the contraband known to be there.' United States v. Bulgier, 618 F.2d 

472, 476 (7th Cir. 1980), cert. denied 449 U.S. 843 (1980)."

Andreas, 463 U.S. at 769-70.
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At issue in Andreas was whether police needed to secure a search warrant to 

reopen a container—addressed to the defendant and, based on a lawful search, known to 

contain marijuana—that undercover law enforcement officers had delivered to the 

defendant's apartment. Officers later seized the container when they arrested the 

defendant upon seeing him leave his apartment with the container 30 to 45 minutes after 

the delivery. The container was taken to the police station and reopened without police 

first obtaining a search warrant. 463 U.S. at 767-68.

An Illinois appellate court affirmed the district court's suppression of the 

marijuana found inside the container. The court reasoned that the officers had failed to 

effect a "'controlled delivery'" of the container which, in the court's view, required the 

officers to maintain "'dominion and control' over the container at all times." 463 U.S. at 

768. Because the container was out of the officers' sight for 30 to 45 minutes while inside 

the defendant's apartment, the officers could not be "'absolutely sure'" that its contents 

had remained unchanged. Thus, the police were required to obtain a search warrant in 

order to reopen the container at the police station. 463 U.S. at 768. 

The Supreme Court rejected the notion that police had to obtain a warrant in order 

to reopen the container. In reaching this conclusion, the Court reasoned that 

"the rigors and contingencies inescapable in an investigation into illicit drug traffic often 

makes 'perfect' controlled deliveries and the 'absolute certainty' demanded by the Illinois 

court impossible to attain. Conducting such a surveillance undetected is likely to render it 

virtually impossible for police so perfectly to time their movements as to avoid detection 

and also be able to arrest the owner and reseize the container the instant he takes 

possession. Not infrequently, police may lose sight of the container they are trailing, as is 

the risk in the pursuit of a car or vessel." Andreas, 463 U.S. at 772.
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The Court of Appeals acknowledged that while Andreas did not directly answer 

the question of what constitutes a controlled delivery, the case indicated 

"that what makes [a] delivery a controlled delivery is that it was performed under the 

control and supervision of law enforcement officers. This interpretation is supported by 

numerous cases discussing a controlled delivery where hand-to-hand contact was not 

required. For example, in State v. Bierer, 49 Kan. App. 2d 403, 405-06, 308 P.3d 10, rev. 

denied 298 Kan. 1204 (2013), a postal inspector contacted the police about a suspicious 

package he believed contained drugs. After a K-9 unit alerted to the package for

narcotics, a controlled delivery of the package was arranged. The postal inspector 

knocked on the door of the house; however, when no one responded, he left the package 

at the front door. Later, Bierer arrived and took the package from the front door and 

placed it in his vehicle. The panel referred to this as a controlled delivery. Bierer, 49 Kan. 

App. 2d at 413; see Rowland, 145 F.3d at 1204 (delivery to a post office box was a 

controlled delivery); United States v. Fadipe, 43 F.3d 993, 994 (5th Cir. 1995) (delivery 

to the mail box at an apartment complex was a controlled delivery).

"The dominant feature in the cases discussing controlled deliveries is that the 

delivery is supervised by police officers, meaning police exercise control over when and 

how the delivery occurs. Delivery of a controlled substance is defined in K.S.A. 2011 

Supp. 65-4101(g) as 'the actual, constructive or attempted transfer from one person to 

another of a controlled substance, whether or not there is an agency relationship.' This 

appears to be what occurred in this case." Mullen, 51 Kan. App. 2d at 522-23. 

The panel's reasoning that a "controlled delivery" does not require law 

enforcement to employ a specific method of conveyance (e.g., handing the package to a 

resident versus leaving the package on the porch or in the mailbox for a resident to pick 

up) is sound. The cases cited by the panel, along with the standard applicable for 

reviewing a search warrant, see Hicks, 282 Kan. 599, Syl. ¶ 2, indicate that as long as the 

means employed to deliver contraband to the site of an anticipatory search warrant was

(1) performed under the control and supervision of law enforcement officers and (2) 
19

establishes a fair probability that the contraband will be found within the site upon 

execution of the warrant, then the delivery will be considered a "controlled delivery."

Here, the affidavit indicated that Inspector Lewis would perform a controlled 

delivery of the package to a resident of the Meadowsweet Lane house. Lewis, while 

under the surveillance of Shawnee police officers, approached the house to deliver the 

package. He knocked on the door and yelled, "Post Office," but no one answered the 

door. After waiting a minute, Lewis left the package at the front door of the house as the 

package sender had authorized. While the package was under police surveillance, Mullen, 

a presumptive resident of the home, opened the front door, picked up the package, and 

took it inside the home.

These facts establish that a controlled delivery of the package to a resident of the 

home was accomplished. The method used to deliver the contraband (i.e., leaving the 

package at the front door and a resident, in turn, retrieving it) was performed under the 

control and supervision of law enforcement officers. Here, the method used to deliver the 

contraband established a fair probability that the contraband would be found inside the 

house. We conclude that the event triggering execution of the search warrant, i.e., a 

controlled delivery of the package to a resident of the home, occurred in this case and that 

the police acted appropriately when they entered the home pursuant to the search warrant. 

The Court of Appeals correctly affirmed the district court's ruling denying

Mullen's motion to suppress.