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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,585

STATE OF KANSAS,

Appellee,

v.

EDDIE LAMAR THOMAS, JR.,

Appellant.

SYLLABUS BY THE COURT

1.

Premeditated and felony murder are not separate and distinct offenses, but rather 

they are two theories under which the crime of first-degree murder may be committed.

2.

The substantive differences between felony murder and premeditated murder 

cannot trump the plain language of K.S.A. 21-3401, which provides that they are 

alternate theories of first-degree murder.

3.

The statutory right to a unanimous verdict only applies to the determination of 

guilt for the single crime charged. Unanimity is not required as to the particular means by 

which the crime was committed, so long as substantial evidence supports each alternative 

means upon which the jury is instructed.
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4.

The prosecutor has the authority and discretion to choose the evidence to present 

to the jury in support of the charged crime, but the prosecutor cannot elect the law that 

will be applied to those facts. The trial judge has the sole authority and responsibility to 

instruct the jury on the elements of the crime that the State must prove beyond a 

reasonable doubt to obtain a conviction.

5.

If an affidavit submitted in support of a search warrant contains both lawfully and 

unlawfully obtained information, the question becomes whether the lawfully obtained 

information, standing alone, would have supported the requisite probable cause to justify 

the issuance of the search warrant.

6.

When reviewing a magistrate's finding of probable cause to support the issuance of 

a search warrant, the standard is whether the evidence provided the magistrate with a 

substantial basis for concluding that probable cause existed, i.e., whether there was a fair 

probability that evidence will be found in the place to be searched.

Appeal from Johnson District Court; KEVIN P. MORIARTY and THOMAS H. BORNHOLDT, judges.

Opinion filed July 24, 2015. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for 

appellant. 

Steven J. Obermeier, senior deputy 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
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JOHNSON, J.: Eddie Thomas, Jr. shot and killed Christopher Dotson after agreeing 

to have sex with Dotson in exchange for money. The State charged Thomas with one 

count of aggravated robbery and one count of first-degree murder under the alternative 

theories of premeditation and felony murder. The jury convicted Thomas of aggravated 

robbery and first-degree murder, even though it could not reach a unanimous decision as 

to whether the murder was premeditated or committed during the course of the 

aggravated robbery.

Thomas filed a direct appeal, raising three issues: (1) The district court erred by 

instructing the jury that it could convict Thomas of first-degree murder based on the 

combined theories of premeditated and felony murder because the two theories should be 

considered separate and distinct crimes; (2) the prosecutor's closing argument election to 

rely solely on a felony-murder theory legally nullified Thomas' first-degree murder 

conviction because that conviction was based, in part, on a theory of premeditation; and 

(3) the district court erred in refusing to suppress items seized pursuant to a search 

warrant obtained with statements made by Thomas in violation of his Miranda rights. 

Because neither the facts nor caselaw support Thomas' arguments, we affirm his 

convictions.

FACTUAL AND PROCEDURAL OVERVIEW

On August 25, 2010, Dotson's body was found in his apartment. An autopsy 

revealed that he died from a single gunshot wound to the head. A .40 caliber bullet was 

recovered during a subsequent police search of Dotson's apartment, but the casing was 

never located. In addition, a blue plastic cup was collected and submitted for fingerprint 

analysis. Dotson's wallet and cell phone were missing from his apartment. 
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Dotson's cell phone records revealed over 100 text messages and phone calls to 

Thomas' cell phone on August 22, 2010, with the last phone call at 10:08 p.m. No calls or 

text messages were sent from Dotson's phone after that time. Consequently, police 

attempted to locate Thomas in order to question him about his August 22, 2010, 

communications with Dotson. 

On August 27, 2010, Thomas voluntarily appeared at the Shawnee Police 

Department for an interview with Detectives Rasnic and Hohnholt. Thomas admitted that 

he had recently reconnected with Dotson through Facebook but said that he had not seen 

Dotson since 2009. Thomas said that he last communicated with Dotson by text message 

on Sunday, August 22, 2010, but downplayed the extent and content of their 

communications on that day.

Rasnic confronted Thomas with Dotson's cell phone records and warned Thomas 

that law enforcement officers would soon know the content of the text messages. 

Thereafter, Thomas admitted that Dotson had texted him throughout the day on August 

22 and requested sex in exchange for money. Thomas said that he initially refused 

Dotson's propositions; but when Dotson persisted, Thomas began to "mess" with him by 

seeing how much money Dotson was willing to pay. Thomas eventually admitted that he 

went to Dotson's apartment on the evening of August 22, 2010, and watched television 

for a little bit but then told Dotson he was not going to do anything and left. However, 

after further pressing by the detectives, Thomas finally confessed that while at the 

apartment, he shot Dotson with a .40 caliber Ruger pistol and took Dotson's wallet. 

After the interview, law enforcement officers applied for a warrant to search the 

residence of Thomas' girlfriend, Shana Williams. The affidavit submitted in support of 

the search warrant included Thomas' admissions that (1) he owned a .40 caliber Ruger 
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pistol; (2) he took the pistol with him to Dotson's apartment; and (3) he shot Dotson in 

the face. 

During the search of Williams' residence, police seized a white t-shirt and denim 

shorts that appeared to have small drops of blood on them. The search also revealed a 

receipt signed by Thomas itemizing the purchase of a Ruger P94 pistol and .40 caliber 

Smith and Wesson ammunition. Police were unable to locate the pistol or ammunition.

Thomas was first charged with first-degree murder and aggravated robbery in 

Johnson County District Court case number 10CR2098. However, after his arraignment, 

Thomas filed a motion to suppress statements he made during his interview, claiming a 

Miranda violation. The district court granted Thomas' motion and issued an order 

suppressing portions of Thomas' interview, including his confessions that he owned a 

pistol, shot Dotson, and took Dotson's wallet. The district court later dismissed the 

criminal charges because Thomas' confessions were the only evidence presented at the 

preliminary hearing to support the finding of probable cause for the filed charges.

The State refiled charges against Thomas for first-degree murder under alternative 

theories of premeditation and felony murder, and for aggravated robbery. Following 

another preliminary hearing, the district court found that probable cause existed to bind 

Thomas over for trial. The district court also incorporated its order from Thomas' original 

criminal case, which had suppressed Thomas' un-Mirandized confessions. Thomas 

thereafter filed a motion seeking to suppress the physical items seized when the police 

executed the search warrant which had been issued upon an affidavit containing Thomas' 

unlawfully obtained incriminating statements. The district court denied the motion. 

During the trial, evidence was admitted indicating that (1) on the evening of 

August 22, 2010, Thomas was wearing jean shorts and a white t-shirt and carried a 
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handgun in his backpack; (2) Thomas' fingerprints matched those found on a blue plastic 

cup within Dotson's apartment; (3) the bullet recovered from Dotson's body could have 

been fired from a Ruger P94; (4) Thomas owned a Ruger P94; (5) Dotson's DNA was 

found in the presumptive blood stains located on the white t-shirt collected from 

Williams' apartment; (6) Thomas' DNA was located on the interior of the white t-shirt 

containing Dotson's DNA; (7) Dotson's DNA was located in the stain on the jean shorts 

collected from Williams' apartment; and (8) Thomas' DNA was located on the inside of 

the jean shorts containing Dotson's DNA. Thomas' redacted interview with police, in 

which he admitted to going to Dotson's apartment on August 22, 2010, was also admitted 

at trial. The State also admitted a copy of a recorded telephone call from jail wherein 

Thomas was asked why he did not call the police and Thomas responded: "'Because it 

happened so fast. Yeah. It all happened so fast.'"

The jury found Thomas guilty of aggravated robbery and first-degree murder. The 

verdict form indicated that the jury was unable to reach a unanimous verdict on either a 

theory of felony murder or a theory of premeditated murder, but the jury was unanimous 

in finding Thomas guilty of first-degree murder. Thomas filed a timely notice of appeal. 

FIRST-DEGREE MURDER JURY INSTRUCTIONS

For the first time on appeal, Thomas claims that the district court erred in 

instructing the jury that it could convict him of first-degree murder based on a combined 

theory of felony and premeditated murder. While Thomas acknowledges that the 

instruction was proper under current law, he argues that statutory changes indicate that 

felony murder and premeditated murder are separate and distinct crimes and should no 

longer be viewed as alternative means of committing first-degree murder. Because 

Thomas' argument is foreclosed by the first-degree murder statute's plain language and by 

longstanding precedent, we hold that the district court did not err.
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Standard of Review

In order to circumvent a preservation problem, i.e., Thomas' failure to challenge 

the bona fides of the first-degree murder statute at the trial court level, Thomas frames 

this issue as a jury instruction error. Notwithstanding this misdirection, our analysis of 

jury instruction issues involves a determination of whether the instruction was legally 

appropriate, and, accordingly, we can proceed down the path requested by Thomas. 

"For jury instruction issues, the progression of analysis and corresponding 

standards of review on appeal are: (1) First, the appellate court should consider the 

reviewability of the issue from both jurisdiction and preservation viewpoints, exercising 

an unlimited standard of review; (2) next, the court should use an unlimited review to 

determine whether the instruction was legally appropriate; (3) then, the court should 

determine whether there was sufficient evidence, viewed in the light most favorable to 

the defendant or the requesting party, that would have supported the instruction; and (4) 

finally, if the district court erred, the appellate court must determine whether the error 

was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 

Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." State v. Plummer, 

295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).

If, after the first step, an appellate court determines that the issue has not been 

properly preserved, relief may still be granted if the giving or failure to give an 

instruction was clearly erroneous. K.S.A. 22-3414(3). Thomas did not object to the 

instructions or verdict form below, therefore relief may only be granted if the instruction 

was clearly erroneous. See K.S.A. 22-3414(3).

"To determine whether an instruction or a failure to give an instruction was 

clearly erroneous, the reviewing court must first determine whether there was any error at 

all. To make that determination, the appellate court must consider whether the subject 
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instruction was legally and factually appropriate, employing an unlimited review of the 

entire record.

"If the reviewing court determines that the district court erred in giving or failing 

to give a challenged instruction, then the clearly erroneous analysis moves to a 

reversibility inquiry, wherein the court assesses whether it is firmly convinced that the 

jury would have reached a different verdict had the instruction error not occurred. The 

party claiming a clearly erroneous instruction maintains the burden to establish the degree 

of prejudice necessary for reversal." State v. Williams, 295 Kan. 506, Syl. ¶¶ 4-5, 286 

P.3d 195 (2012).

Analysis

The jury was instructed that Thomas was charged with one count of first-degree 

murder, which could be established by proving, beyond a reasonable doubt, that Thomas 

killed Dotson and the killing was done while in the commission of an aggravated robbery 

or, in the alternative, that Thomas killed Dotson intentionally and with premeditation. 

The instruction further provided that if the jury did not have a reasonable doubt that the 

State had proven murder in the first degree "on either or both theories," it must enter a 

verdict of guilty. The instructions also provided that if the jury found Thomas guilty of 

murder in the first degree, the presiding juror should sign the applicable verdict form and 

indicate which of the three alternative theories that the jury found applicable. Theory 1(a) 

stated: "We, the jury, unanimously find the defendant guilty of murder in the first degree 

on the theory of premeditated murder." Theory 1(b) stated: "We, the jury, unanimously 

find the defendant guilty of murder in the first degree on the theory of felony murder."

Theory 1(c), which is at issue in this appeal, stated: "We, the jury, unable to agree under 

Theory 1(a) or 1(b), do unanimously find the defendant guilty of murder in the first 

degree on the combined theories of premeditated murder and felony murder." Thomas 

argues these instructions are clearly erroneous because felony and premeditated murder 

are, in fact, two separate crimes. 
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K.S.A. 21-3401 defines first-degree murder as "the killing of a human being 

committed: (a) Intentionally and with premeditation; or (b) in the commission of, 

attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-

3436 and amendments thereto." (Emphasis added.) In interpreting the plain language of 

K.S.A. 21-3401, we have long held that the "statute merely provides alternative methods 

of proving the deliberation and premeditation required for a conviction of first degree 

murder." State v. McCowan, 226 Kan. 752, 759, 602 P.2d 1363 (1979), cert. denied 449 

U.S. 844 (1980). See also State v. Dominguez, 299 Kan. 567, 576, 328 P.3d 1094 (2014) 

(citing to PIK Crim. 3d 56.02, Comment, noting that K.S.A. 21-3401 merely provides 

alternative methods of proving first-degree murder); State v. Hoge, 276 Kan. 801, 810, 80 

P.3d 52 (2003) (premeditated and felony murder are not two distinct crimes but merely 

provide alternative methods of committing first-degree murder); State v. Davis, 247 Kan. 

566, 571, 802 P.2d 541 (1990) ("K.S.A. 21-3401 establishes the single offense of murder 

in the first degree and alternative methods of proving that crime.").

Our present circumstances were specifically addressed in State v. Morton, 277 

Kan. 575, 578, 86 P.3d 535 (2004), where the defendant was convicted of first-degree 

murder based on a verdict form stating the jurors "were 'unable to agree whether the 

defendant is guilty of Murder in the First Degree on the theory of premeditated murder or 

felony murder.'" But like here, the jury "'unanimously [found] the defendant guilty of 

murder in the first degree on the combined theories of premeditated murder and felony 

murder.'" 277 Kan. at 578. On appeal, Morton raised the same argument proffered by 

Thomas—that premeditated murder and felony murder are separate and distinct offenses 

and his right to a unanimous verdict was therefore violated by the erroneous instruction 

and verdict forms. We rejected Morton's argument, first noting the long line of cases 

holding that premeditated and felony murder are not separate and distinct crimes but are 
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two different theories for establishing first-degree murder. 277 Kan. at 579. We then 

concluded:

"Although we know from the verdict form that Morton's jury could not agree on 

premeditation or felony murder, it was unanimous as to his guilt of first-degree murder. 

That was enough as long as the evidence of each means was sufficient. Instruction and 

conviction on the combined theories was proper." 277 Kan. at 581. 

See also State v. Pioletti, 246 Kan. 49, 64, 785 P.2d 963 (1990) (when defendant charged 

with both premeditated murder and felony murder, it does not matter if some members of 

jury arrive at verdict of guilt based on proof of premeditation while others arrive at 

verdict of guilt based on felony murder).

Thomas acknowledges this court's holdings and the plain language of K.S.A. 21-

3401 but nonetheless argues that certain statutory changes indicate that the legislature 

actually intended to treat felony and premeditated murder as two separate crimes. He 

points to the following evidence of that legislative intent: (1) The minimum mandatory 

sentence for premeditated murder is higher than that required for felony murder; (2) 

premeditated murder contains lesser included offenses while felony murder does not; and 

(3) one can attempt premeditated murder, but one cannot attempt felony murder.

Although these substantive differences between felony murder and premeditated 

murder certainly suggest that they are separate crimes, any inference to be drawn from 

these differences cannot trump the plain language of the statute. For instance, the statute 

eliminating lesser included offenses for felony murder clearly states that felony murder 

and premeditated murder do not constitute separate crimes, to-wit: "Murder in the first 

degree as defined in subsection (a)(2) [felony murder] is an alternative method of proving 

murder in the first degree and is not a separate crime from murder in the first degree as 
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defined in subsection (a)(1) [premeditated murder]." (Emphasis added.) K.S.A. 2014

Supp. 21-5402(d). When a statute is plain and unambiguous, an appellate court does not 

speculate as to the legislative intent behind it. In re Tax Appeal of Burch, 296 Kan. 713, 

722, 294 P.3d 1155 (2013). Here, there is no need to speculate—the legislative intent is 

crystal clear—felony murder and premeditated murder are not separate crimes, despite 

their substantive differences.

Faced with unambiguous statutes, clear legislative intent, and a long history of 

caselaw holding that the two crimes are alternative means, Thomas asks this court to 

overturn K.S.A. 21-3401 based on a defendant's statutory right to a unanimous verdict, as 

provided for in K.S.A. 22-3421 and K.S.A. 22-3423(1)(d). In Kansas, a criminal 

defendant has a statutory right to a unanimous jury verdict. State v. Voyles, 284 Kan. 239, 

250, 160 P.3d 794 (2007). Thomas argues that the first-degree murder statute, which 

allows him to be convicted of first-degree murder even if a jury does not unanimously 

agree on whether it was premeditated or committed in the commission of an inherently 

dangerous felony, violates his statutory right to a unanimous verdict. However, the 

statutory right to a unanimous verdict only applies to the "'guilt for the single crime 

charged. Unanimity is not required . . . as to the means by which the crime was 

committed so long as substantial evidence supports each alternative means. [Citations 

omitted.]'" State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. 

Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]). Here, the verdict form clearly 

indicated that the jury was unanimous on the single crime charged—first-degree murder. 

Moreover, Thomas does not allege, nor does the record indicate, that there was 

insufficient evidence to support both premeditation and felony murder. Therefore, 

Thomas' statutory right to a unanimous verdict was not violated. 

Thomas also argues that because felony murder only requires foreseeability and 

not premeditation, its mens rea requirement is more akin to that of reckless second-
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degree murder, which is defined as the killing of a human being committed 

"unintentionally but recklessly under circumstances manifesting extreme indifference to 

the value of human life." K.S.A. 21-3402(b). This argument suffers from the same fatal 

flaw discussed above—the plain language of the first-degree murder statute. In other 

words, even should this court agree with Thomas' reasoning, we have no authority to 

rewrite an unambiguous statute. See State v. Limon, 280 Kan. 275, 304, 122 P.3d 22 

(2005) (it is a violation of separation of powers doctrine for court to rewrite statute in 

manner clearly contrary to legislative intent).

Thomas does not argue that the instructions were not factually appropriate, nor 

does he argue that there was insufficient evidence to support both alternative means of 

premeditation or felony murder. He therefore implicitly concedes that the alternative 

theory instruction was factually appropriate. See Dominguez, 299 Kan. at 575 ("In 

response, by not arguing to the contrary, the State implicitly concedes that the alternative 

theory instructions and verdict form formulated by the PIK Committee were legally and 

factually appropriate.").

We therefore hold, based on the plain language of the first-degree murder statute, 

this court's precedent, and the evidence, that the instructions and verdict form provided 

herein were legally and factually appropriate, and the district court did not err in giving 

the jury instructions. Accordingly, without error, the instructions could not be clearly 

erroneous.

FUNCTIONAL ELECTION OF ALTERNATIVE MEANS

Thomas suggests that, even if felony murder and premeditated murder are 

alternative means, his conviction cannot stand because, during closing argument, the 

prosecutor elected to proceed solely upon a felony-murder theory. He argues that the 
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prosecutor's election foreclosed the jury's reliance on a combined theory, as a matter of 

law. We need not quibble over whether the prosecutor's closing argument did purport to 

effect an election, because a prosecutor cannot elect the law that a jury must apply to the 

facts of a case.

Standard of Review

Thomas argues the issue involves instructional error because the district court 

should not have, as a matter of law, instructed the jury on the theory of premeditated 

murder once the prosecutor "elected" to proceed on a theory of felony murder during 

closing argument. Thomas' argument is without merit because the jury was instructed 

prior to the State's closing argument, and a district court is required to provide 

instructions on the crimes charged. See K.S.A. 22-3414(4).

Rather, Thomas' issue is more akin to a question of law, i.e., whether a prosecutor 

can "functionally elect" an alternative means and thereby foreclose the jury from basing 

its verdict, in any part, on the "unelected" theory. A question of law is subject to 

unlimited review. See State v. Moody, 282 Kan. 181, 188, 144 P.3d 612 (2006). 

Analysis

We recently addressed whether a prosecutor could functionally elect an alternative 

means during closing argument. In State v. Owen, No. 102,814, 2015 WL 1309978 (Kan. 

2015) (unpublished opinion), the State had failed to present sufficient evidence of one of 

the alternative means upon which the jury had been instructed. The State sought to cure 

that deficiency by arguing that although the "elect or instruct" requirement has previously 

only been applied to multiple acts cases, it should also apply to alternative means cases. 

The Owen court rejected this argument.
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"Notwithstanding the State's understanding of this distinction, it attempts to insert 

the proverbial square peg in a round hole, by making the simplistic argument: 'If election

or its functional equivalent is sufficient to secure jury unanimity in a multiple acts setting, 

logically then, a similar election should be sufficient to provide unanimity in an 

alternative means scenario.' The fallacy of that premise is rooted in the allocation of 

responsibilities in a jury trial. The prosecutor has the authority and discretion to draft and 

file a charging document and can choose the evidence that the State will present to the 

jury. Accordingly, it is within the prosecutor's province to elect the evidence that the 

State wishes the jury to consider in determining the defendant's guilt on a particular 

count. Although the trial judge can tell a jury that the law mandates that it be unanimous 

on the particular evidence that will support the single count, it cannot tell the jury which 

specific evidence it must consider. In sum, it is the prosecutor that elects the evidence for 

the jury.

"But on the flip side, the prosecutor cannot elect which law it wants the jury to 

apply to a particular case; it is solely the trial judge's authority and responsibility to 

instruct the jury on the elements of the crime that must be proved beyond a reasonable 

doubt to effect a conviction. If the judge instructs the jury that the elements of the crime 

include that the defendant endorsed a check, the prosecutor is not imbued with the 

authority to countermand that instruction and say that it is acceptable to convict the 

defendant without evidence of that instructed element. In short, although a prosecutor can 

elect the facts that the jury should unanimously consider, he or she cannot elect the law

that the jury should unanimously apply." 2015 WL 1309978, at *7.

In keeping with the rationale of Owen, we similarly conclude that during closing 

argument, a prosecutor cannot, as a matter of law, functionally elect to have the jury 

ignore a legal theory which the court has instructed the jury that it may use to convict the 

defendant on the charged crime. Therefore, the jury was not precluded from convicting 

Thomas of first-degree murder based on both alternative means of felony and 

premeditated murder.
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MOTION TO SUPPRESS EVIDENCE

Thomas claims the district court erred in denying his motion to suppress items 

seized during a search conducted pursuant to an invalid search warrant. He argues that 

the Fifth Amendment to the United States Constitution prohibits the use of his unMirandized statements in the affidavit submitted in support of the application for the 

search warrant. He further contends that without the un-Mirandized statements, the 

affidavit did not support a finding of probable cause for issuance of the search warrant. 

Because we hold that the affidavit contained sufficient evidence to support a finding of 

probable cause, even without the un-Mirandized statements, we need not determine 

whether the Fifth Amendment prohibits the use of an un-Mirandized statement in an 

affidavit submitted in support of a search warrant. In other words, if there was any error, 

it was harmless.

Standard of Review

Typically, when an affidavit in support of an application for a search warrant is 

challenged, this court uses a deferential standard of review for determining whether the 

issuing magistrate had a substantial basis for concluding probable cause existed. State v. 

Adams, 294 Kan. 171, 180, 273 P.3d 718 (2012). Thomas does not challenge whether the 

affidavit contained sufficient information to constitute probable cause. Instead, he 

challenges the legality of using statements obtained in violation of the Miranda rule to 

secure a search warrant. This issue is a question of law subject to de novo review. See 

State v. Althaus, 49 Kan. App. 2d 210, 217, 305 P.3d 716 (2013) (assessing legal effect of 

affidavit in support of search warrant typically presents question of law over which 

appellate courts exercise unlimited review). 
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Analysis

The Fifth Amendment to the United States Constitution guarantees the right 

against self-incrimination, including the right to remain silent and the right to have a 

lawyer present during a custodial interrogation. See State v. Walker, 276 Kan. 939, 944, 

80 P.3d 1132 (2003) (citing Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. 

Ed. 2d 694 [1966]). In Miranda, the United States Supreme Court held that statements 

obtained from defendants during a custodial police interrogation, without a full warning 

of constitutional rights, were inadmissible as having been obtained in violation of the 

Fifth Amendment's privilege against self-incrimination. 384 U.S. at 444. 

The district court determined that Thomas' police interview turned into a custodial 

interrogation about an hour and a half after it began, and therefore the court suppressed 

all statements made after that time because police had failed to advise Thomas of his 

Miranda warnings. Several of these suppressed statements were included in the affidavit 

submitted in support of the request for a search warrant, e.g., Thomas' statements that he 

owned a .40 Ruger pistol, shot Dotson with the pistol, and took Dotson's wallet, leading 

to Thomas' claim that the warrant was invalid. But, relying on United States v. Patane, 

542 U.S. 630, 124 S. Ct. 2620, 159 L. Ed. 2d 667 (2004), and United States v. Phillips, 

468 F.3d 1264 (10th Cir. 2006), the district court denied the motion, finding that Thomas' 

un-Mirandized statements could be included in an affidavit submitted in support of a 

search warrant.

Patane held that nontestimonial evidence obtained with a warrant affidavit 

containing un-Mirandized statements only violates the Fifth Amendment if the evidence 

obtained is the fruit of an actually coerced statement. 542 U.S. at 644. Phillips, citing to 

Patane, held that "physical evidence that is the fruit of a voluntary statement should not 
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be suppressed even if the statement was elicited without a Miranda warning." 468 F.3d at 

1266. 

But we need not decide the impact of Patane on this case. "'Assuming the 

application and affidavit for the search warrant contained information both lawfully and 

unlawfully obtained, the question remains whether the lawfully obtained information by 

itself supports probable cause that would have justified issuance of the search warrant by 

the magistrate.'" State v. Fisher, 283 Kan. 272, 301, 154 P.3d 455 (2007) (quoting State v. 

Weas, 26 Kan. App. 2d 598, 603, 992 P.2d 221 [1999], rev. denied 268 Kan. 855 [2000]). 

In other words, if the lawfully obtained information is sufficient, standing alone, to 

support the requisite probable cause to issue a warrant, the existence of any unlawfully 

obtained information will not invalidate the warrant. 

In determining whether probable cause exists to support a search warrant, the 

issuing magistrate's duty is to make a practical, commonsense decision whether, given 

the circumstances set forth in the affidavit, there is a fair probability that contraband or 

evidence of a crime will be found in a particular place. State v. Powell, 299 Kan. 690, 

695, 325 P.3d 1162 (2014). When reviewing the issuing judge's decision to issue a 

warrant, this court conducts "an independent analysis of the content of the affidavit, but 

we need only see enough to persuade us that there was a substantial basis for the 

magistrate's conclusion." State v. Hicks, 282 Kan. 599, 613, 147 P.3d 1076 (2006). 

The affidavit stated the following lawfully obtained information: Dotson was 

found dead in his apartment on August 25, 2010; he died from a single gunshot wound to 

the head; he was last seen around 8:30 p.m. on August 22, 2010; his cell phone revealed 

multiple communications between himself and Thomas on the evening of August 22, 

2010; during the course of their August 22nd communications, Dotson offered to pay 

Thomas $500 in exchange for sex; Dotson withdrew $500 from his ATM on the evening 
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of August 22, 2010; and Thomas admitted to going to Dotson's apartment on the evening 

of August 22, 2010. Accordingly, we conclude that the affidavit contained sufficient 

evidence of motive and opportunity to commit the crime and therefore supported a 

finding of probable cause apart from Thomas' un-Mirandized confessions. See Fisher, 

283 Kan. at 300 (When reviewing a magistrate's finding of probable cause, the standard 

is whether the evidence provided the magistrate with a substantial basis for concluding 

that probable cause existed; it does not demand that the reviewing court determine 

whether, as a matter of law, probable cause existed, but rather there was a fair probability 

that evidence will be found in the place to be searched.). We therefore affirm the district 

court's denial of the motion to suppress. 

Affirmed.