No. 95,403
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KEVIN DEAN MALM,
Appellant.
SYLLABUS BY THE COURT
1. In reviewing a district court's decision regarding suppression, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.
2. A seizure occurs when there is an application of physical force or a show of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority.
3. Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed, or is about to commit a crime and may demand the name and address of such suspect and an explanation of such suspect's actions.
4. Reasonable suspicion has been defined as a particularized and objective basis for suspecting the person stopped of criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of the information possessed by the detaining authority and the information's degree of reliability. Quantity and quality are considered in the totality of the circumstances and the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.
5. In determining whether probable cause exists to support a search warrant, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of any person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
6. Kansas courts prefer searches conducted under the authority of search warrants to those conducted without the benefit of a warrant. Therefore, warrants and their supporting affidavits are to be interpreted in a common-sense, rather than a hypertechnical, fashion.
7. In order to obtain a warrant to search a suspect's residence, the affidavit must contain more than a description of the suspect's illegal activity. There must be some nexus between the illegal or suspicious activity described in the affidavit and the suspect's residence sufficient to establish a fair probability that contraband or evidence of a crime will be found in the residence.
8. The Fourth Amendment exclusionary rule should not be applied to bar evidence obtained by officers acting in good faith in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though the warrant is ultimately found to be invalid. However, the exclusionary rule still applies in cases where (1) the judge or magistrate issuing the warrant was deliberately misled by false information; (2) the judge or magistrate wholly abandoned his or her detached and neutral role; (3) the warrant was so lacking in specificity that the officers could not determine the place to be searched or the things to be seized; or (4) there was so little indicia of probable cause contained in the affidavit that it was entirely unreasonable for an officer to believe the warrant was valid.
9. The Fourth Amendment exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Thus, suppressing evidence seized by law enforcement officers acting in good faith in reasonable reliance on a search warrant signed by a detached and neutral magistrate does not further the purpose of the exclusionary rule.
10. Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing or eliciting the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.
11. It is constitutionally impermissible for the State to elicit evidence at trial of an accused's post-Miranda silence.
12. The following test is applied to determine multiplicity issues. First, a court must consider whether the convictions are based upon the same conduct. If not, the multiplicity analysis ends. If based on the same conduct, the court must then consider whether the convictions are based upon a single statute or multiple statutes. If the convictions are based upon different statutes, the convictions are multiplicitous only when the statutes upon which the convictions are based contain an identity of elements. The same-elements test is the only test to determine multiplicity arising from convictions of separate statutes.
13. A conviction of conspiracy to manufacture methamphetamine is properly classified as a drug severity level 1 offense rather than as a drug severity level 4 offense.
14. The defendant's constitutional rights are not violated when the defendant's sentence is based upon a criminal history classification not proven to a jury beyond a reasonable doubt.
Appeal from Dickinson District Court, BENJAMIN J. SEXTON, judge. Opinion filed April 6, 2007. Affirmed.
Sara Ellen Johnson, of Kansas Appellate Defender Office, for appellant.
Daryl E. Hawkins, assistant county attorney, Keith Hoffman, county attorney, and Phill Kline, attorney general, for appellee.
Before RULON, C.J., MALONE and HILL, JJ.
MALONE, J.: Kevin Dean Malm appeals his convictions and sentences for conspiracy to manufacture methamphetamine and several related drug charges. Malm raises the following issues: (1) The district court erred by denying Malm's motion to suppress evidence seized as a result of an illegal traffic stop; (2) the district court erred by denying Malm's motion to suppress evidence seized from his residence pursuant to a search warrant; (3) Malm was denied a fair trial based upon prosecutorial misconduct; (4) Malm's convictions of unlawful acts relating to the manufacture of methamphetamine under K.S.A. 65-7006(a) and possession of drug manufacturing paraphernalia under K.S.A. 65-4152(a)(3) were multiplicitous; (5) the district court erred by classifying conspiracy to manufacture methamphetamine as a drug severity level 1 offense as opposed to a drug severity level 4 offense; and (6) Malm's constitutional rights were violated when his sentence was based upon a criminal history classification not proven to a jury beyond a reasonable doubt.
On January 5, 2004, Diane Dowell, an asset protection manager at the Salina Target store, observed Malm purchase two packages of cold tablets containing pseudoephedrine. Target's policy at the time permitted a customer to purchase two packages of cold medicine from the shelf. Dowell continued to observe Malm on closed circuit surveillance as he approached a van in the Target parking lot. After a few minutes, Dowell observed a woman let Malm into the van.
After approximately 7 minutes, Dowell observed the woman exit the van and walk toward the Target store. On her way into the store, the woman deposited a white bag into a trash can. Dowell later examined the white bag and discovered that it contained four empty packages of cold tablets, two Target brand and two Sudafed brand. Dowell continued her surveillance of the woman inside the store, where she observed the woman pick up two packages of cold tablets and walk back and forth between the service desk and the checkout lanes. The woman ultimately went to the service desk and attempted to exchange a music compact disc for the two packages of cold tablets. The employee at the service desk would not allow the exchange because the woman did not have a receipt for the CD, and the woman left the store without making any purchases. Dowell observed the woman return to the van.
Dowell summoned the police, and Officers Lane Mangels, James Feldman, and Janelle Zimmerman, of the I-35/I-70 Drug Task Force, responded to the call. Feldman and Zimmerman, dressed in plain clothes and driving an unmarked vehicle, arrived at the store in time to follow the van as it left Target. Malm was driving the van, and the woman was in the passenger's seat. The officers ran a check on the van's license plate and discovered that it was registered to Connie S. Malm of Carlton, Kansas. The weather was snowy and icy that day, making the road conditions hazardous.
The officers followed the van and observed it stop at a gas station where both Malm and the woman entered and purchased cigarettes. The officers continued to follow the van to Carlton, Kansas, approximately 20 miles from the Target store in Salina. At one point, Malm stopped the van, got out, and looked around as if to check to see if he was being followed. Just beyond Carlton, the van turned onto a dirt road. As the officers did not feel comfortable following the van down the dirt road due to weather-related driving conditions, the officers stopped in Carlton and waited.
A few minutes later, the van returned to Carlton and pulled up alongside the officers' vehicle on the driver's side so that the two vehicles were less than 12 inches apart. Malm rolled his window down and inquired whether the officers needed help. Zimmerman, who was driving, asked Malm to pull slightly forward so that she could exit the vehicle without dinging the van. As Malm was moving the van forward, Feldman exited the vehicle, drew his weapon down to his side, and identified himself as a police officer. Feldman was unsure whether the occupants of the van could see his weapon. Feldman asked Malm to stop the van, but the van continued to go forward slowly. Feldman told Malm to stop two more times before he finally did.
Once the van stopped, Feldman asked Malm to step out of the van and produce his driver's license, and Malm complied. Feldman asked Malm where he was currently living, and Malm replied that he was homeless and that the van belonged to his wife. Feldman asked Malm where his wife lived, and Malm replied that he did not know where she lived. Feldman observed a knife in between the driver's seat and the passenger's seat. When Feldman asked for consent to search the van, Malm refused.
Meanwhile, Zimmerman approached the passenger who identified herself as Connie Malm, Malm's wife and the registered owner of the van. Malm yelled to his wife not to talk to Zimmerman because they had a lawyer. Zimmerman asked Connie for permission to search the van, but she refused.
A few minutes later, Mangels, who had been tailing the officers and the van at some distance, also arrived on the scene. Mangels ran a warrant check on Malm and discovered an active arrest warrant for a probation violation based on a conviction of possession of methamphetamine. Based on the probation violation, Feldman arrested Malm. The officers then searched the van, which they characterized as a search incident to the arrest. The officers found blister packs of tablets containing pseudoephedrine, an open box of coffee filters, a syringe, and several small baggies with white powder residue believed to be methamphetamine.
Based on this evidence, Mangels applied for a search warrant for the van and for the Malms' residence. The subsequent and more thorough search of the van uncovered additional items associated with the manufacture and use of methamphetamine. The search warrant affidavit for the Malms' residence recited the above information and also contained the following statement:
"[B]ased on the Malms' purchase and attempted second purchase of cold tablets containing pseudoephedrine hydrochloride at Target, the nervousness and paranoia of Kevin and Connie Malm in the city of Carlton, the discovery of blister packs containing tablets with pseudoephedrine, coffee filters and drug paraphernalia in the vehicle, the affiant believes that Kevin and Connie Malm were in possession of paraphernalia related to the manufacture of methamphetamine and were transporting those items from Salina to their residence in Carlton for the purpose of manufacturing methamphetamine. The affiant believes that Kevin and Connie Malm would have used the items found in the vehicle for the purpose of manufacturing methamphetamine at their residence if not for the swift intervention of law enforcement."
A magistrate authorized the search warrant, and upon its execution at the residence, the police found methamphetamine and a number of other objects associated with the manufacture and use of methamphetamine. Based on the evidence located in the Malms' van and residence, the State charged Malm with attempted manufacture of methamphetamine, conspiracy to manufacture methamphetamine, unlawful acts relating to the manufacture of methamphetamine, possession of methamphetamine, possession of drugs without a tax stamp, possession of drug manufacturing paraphernalia, and possession of drug use paraphernalia.
Malm filed a motion to suppress the evidence seized from the van, but after an evidentiary hearing the district court denied Malm's motion. Malm filed a subsequent motion to suppress the evidence seized from his residence. He argued the search warrant was not based on probable cause because the search warrant affidavit failed to allege a sufficient factual nexus between Malm's suspected criminal activity and his residence. The district court denied this motion as well. Malm renewed his objections to the evidence at his jury trial, and the district court granted a continuing objection for the course of the trial.
Malm was found not guilty of attempted manufacture of methamphetamine, but he was found guilty of the remaining charges. Based on Malm's criminal history classification, the district court imposed a controlling sentence of 152 months' imprisonment. Malm timely appeals.
Search of the van
Malm claims the district court erred by denying his motion to suppress the evidence seized from the van. Malm's only argument on appeal is that the officers lacked reasonable suspicion of criminal activity in order to justify stopping the van. He argues that all evidence obtained as a result of the stop should be suppressed as fruit of the poisonous tree.
"In reviewing a district court's decision regarding suppression, [an appellate] court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. [An appellate] court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]" State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006). When the material facts relevant to the district court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress the evidence is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
The Fourth Amendment to the United States Constitution protects against "'unreasonable searches and seizures'" of "'persons.'" "Section 15 of the Kansas Constitution Bill of Rights provides protection identical to that provided under the Fourth Amendment to the United States Constitution. [Citation omitted.]" State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003). A seizure occurs when "there is the application of physical force" or when "there is a show of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave [citation omitted] and the person submits to the show of authority [citation omitted]." 276 Kan. at 18-19. This is an objective standard. 276 Kan. at 18. Examples of a show of authority include "activation of sirens or flashers, a command to halt, a display of weapons, or attempt to control the ability to flee or the direction of travel during a chase." 276 Kan. at 20. If a reasonable person would feel free to decline an officer's requests, then the interaction between the officer and the person is characterized as a voluntary encounter. Voluntary encounters are not considered seizures and are not protected by the Fourth Amendment. 276 Kan. at 19.
The State characterizes the interaction between Malm and the officers as a voluntary encounter because Malm initially approached the officers and inquired if they needed help. This characterization ignores the remaining facts. Although the interaction between Malm and the officers began as a voluntary encounter, the nature of the encounter abruptly changed when Feldman exited his vehicle, identified himself as a police officer, covertly drew his firearm, and ordered the van to stop three times. As the van slowly crept away from the unmarked police vehicle, Feldman asserted his authority as a police officer to compel Malm to stop the van, and Malm submitted to Feldman's show of authority. Viewed objectively, the evidence indicates that Malm was seized for Fourth Amendment purposes.
The question then becomes whether the officers had reasonable suspicion of criminal activity to stop Malm based on the totality of the circumstances at the time that they seized him. K.S.A. 22-2402(1) provides: "Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect's actions." This statute is a codification of the Fourth Amendment search and seizure principles expressed in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). In Terry, the United States Supreme Court determined that a law enforcement officer, without making an arrest, was authorized to stop a suspect based upon "a series of acts [by the suspect], each of them perhaps innocent in itself, but which taken together warranted further investigation." 392 U.S. at 22.
In State v. DeMarco, 263 Kan. 727, 735, 952 P.2d 1276 (1998), the Kansas Supreme Court, quoting the United States Supreme Court, has defined reasonable suspicion as "'"a particularized and objective basis" for suspecting the person stopped of criminal activity.' [Citation omitted.] Something more than an unparticularized suspicion or hunch must be articulated. [Citation omitted.]" The court elaborated:
"Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of information possessed by the detaining authority and the information's degree of reliability. Quantity and quality are considered in the 'totality of the circumstances–the whole picture' that must be taken into account when evaluating whether there is reasonable suspicion. [Citation omitted.]" 263 Kan. at 735.
In arguing that the officers lacked reasonable suspicion to stop his van, Malm relies primarily on State v. Schneider, 32 Kan. App. 2d 258, 80 P.3d 1184 (2003). In Schneider, two defendants each purchased two packages of cold tablets and other items from the Salina Target. The Target loss prevention specialist notified the police about the purchases, and officers began to follow the defendants. The officers observed the defendants stop at a gas station where they did not make any suspicious purchases and then return to their vehicle and execute a turn without signaling. The officers continued to follow the defendants for 15 miles before making a stop. The officers asked the defendants to exit their vehicle and questioned them about the cold tablets and any possible involvement in methamphetamine production, in which the defendants denied participating. The officers then requested permission to search the defendants' vehicle, which the defendants denied. Nevertheless, the officers noticed contraband in the vehicle which they were only able to observe because one of the officers refused to allow a defendant to close the passenger door.
This court affirmed the district court's suppression of the evidence. 32 Kan. App. 2d at 265. This court questioned the pretextual stop because of the significant amount of time that had passed between the alleged minor traffic violation and the ultimate stop. However, this court determined that even if the initial stop was justified, based upon the traffic infraction, the scope of the detention clearly went beyond that which is allowed in conducting a traffic stop. 32 Kan. App. 2d at 262-63. This court concluded that the simultaneous purchase by each defendant of two packages of cold tablets did not constitute reasonable suspicion of criminal activity and agreed with the district court that such a notion was "a little scary." 32 Kan. App. 2d at 264; see also State v. Knight, 33 Kan. App. 2d 325, 327-28, 104 P.3d 403 (2004) (a customer's purchase of two boxes of cold tablets, a six-pack of bottled water, and ordinary table salt did not justify a stop by the police).
There are certainly similarities between Schneider and the present case, mainly that each case involves two individuals each purchasing or attempting to purchase two packages of cold tablets. However, there are some important differences as well. Here, the two individuals did not purchase the cold tablets at the same time. Malm purchased two packages of cold tablets and went to the van in the parking lot. Approximately 7 minutes later, about the amount of time it would take to empty the tablets from the blister packs, Connie headed for the store. On her way into the store, she deposited four empty packages of cold tablets, including two Target brand packages, into a trash can. Connie then attempted to purchase two more packages of cold tablets in the unusual manner of trading in a music CD in exchange for the cold tablets. When she was unable to complete this transaction, she left the store without making any purchase and returned to the van. In this day and age, when it is well known that the main ingredient of methamphetamine is pseudoephedrine extracted from over-the-counter cold medication, the Malms' curious behavior was certainly suspicious enough to cause a trained asset protection store manager to alert the police.
Although the police may have been justified in immediately stopping the van as it left the Target store, it was reasonable for the police to follow the van to see if they could observe additional suspicious activity. Once the police began following the van, the Malms did not return directly to their residence in Carlton. Instead, they took an indirect route, at one point turned down an isolated dirt road, and then turned around from there. At another point, Malm stopped the van, got out, and looked around as if to check to see if he was being followed. This behavior added to the mix of suspicious activity under the totality of the circumstances.
Although this is a close case, we agree with the district court that there was a particularized and objective reasonable suspicion of criminal activity sufficient to justify the police stopping Malm's van. Malm and his wife had engaged in "a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation" by the police. Terry, 392 U.S. at 22. On appeal, Malm has only challenged the stop of his van as being illegal. Malm does not raise any issue regarding the subsequent search of the van except to claim that the evidence seized from the van should have been suppressed as fruit of the illegal stop. Because we agree that under the totality of the circumstances the officers had reasonable suspicion to stop the van, we conclude the district court did not err in refusing to suppress the evidence seized from the van.
Search of the residence Malm claims that even if the search of the van was legal, the search warrant issued authorizing the police to search his residence was not based on probable cause. Specifically, Malm asserts that the search warrant affidavit failed to allege a sufficient factual nexus between Malm's suspected criminal activity and his residence.
In State v. Hicks, 282 Kan. 599, Syl.¶ 1, 147 P.3d 1076 (2006), our Supreme Court set forth the standard used by an issuing magistrate when evaluating an affidavit for a search warrant:
"In determining whether probable cause exists to support a search warrant, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of any person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place."
Our Supreme Court in Hicks further set forth the standard used by a reviewing court when a defendant challenges an affidavit 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." 282 Kan. 599, Syl. ¶ 2.
On review, a court's determination of the sufficiency of a search warrant affidavit must be determined from the four corners of the affidavit. State v. Bowles, 28 Kan. App. 2d 488, 492, 18 P.3d 250 (2001). Kansas courts prefer searches conducted under the authority of warrants to those conducted without the benefit of a warrant. Therefore, warrants and their supporting affidavits are to be interpreted in a common-sense, rather than a hypertechnical, fashion. State v. Ames, 222 Kan. 88, 92, 563 P.2d 1034 (1977).
The case law is clear that in order to obtain a warrant to search a suspect's residence, the affidavit must contain more than a description of the suspect's illegal activity. There must be some nexus between the illegal or suspicious activity described in the affidavit and the suspect's residence sufficient to establish a fair probability that contraband or evidence of a crime will be found in the residence. State v. Ratzlaff, 255 Kan. 738, 750, 877 P.2d 397 (1994).
In State v. Doile, 244 Kan. 493, 495, 769 P.2d 666 (1989), the defendant was arrested by the police in his automobile under suspicion that he was carrying drugs and driving while intoxicated. In a search incident to arrest the police found a mirror, a partially burned hand-rolled marijuana cigarette, and a bag containing a substance that was believed to be marijuana. After arriving at jail, the defendant's personal effects were searched and cocaine was found in a straw in his billfold. Based on an affidavit setting forth the items found on the defendant's person and a disclosure of a prior conviction, the officers obtained a search warrant for the defendant's residence. In ruling the evidence should have been suppressed, the Supreme Court stated:
"The affidavit herein does not contain any factual allegations from which the judge could have found there was probable cause to believe contraband was in the residence. There was no allegation of any drug-related activity at the residence except for the sales almost five years earlier. There was nothing about the items seized from the vehicle or person from which one could conclude they were part of a stash at the residence. The judge must have concluded that finding the small amount of drugs on the defendant's person and in his auto was probable cause to search his residence simply because of the old conviction. This is an 'improper analysis of the totality of the circumstances' . . . ." Doile, 244 Kan. at 503.
In State v. Probst, 247 Kan. 196, 203, 795 P.2d 393 (1990), the defendant was arrested for distribution of methamphetamine and the police requested the issuance of a search warrant for her home. The affidavit supporting the search warrant described a sale of methamphetamine to an informant by a third party in front of the defendant's residence. The affidavit also contained an informant's statement that the defendant was involved in a drug ring and a statement that the defendant had been convicted of possessing methamphetamine 15 months earlier. Our Supreme Court concluded this was insufficient information linking drug trafficking to the defendant's residence because the sale of methamphetamine had occurred in front of her residence without the defendant being involved. 247 Kan. at 201.
In another case, State v. Longbine, 257 Kan. 713, 714, 896 P.2d 367 (1995), an affidavit to search the defendant's residence stated the defendant was part of a marijuana distribution ring. The affidavit contained no allegations that sales or possession of marijuana had taken place at the residence, but only that the defendant was making phone calls from his residence to a known drug dealer. Our Supreme Court affirmed the district court's determination that the affidavit failed to state a fair probability that contraband would be found at the defendant's residence. The Longbine court stated: "[A]n affidavit for a search warrant that gives an impression but fails to state facts that support probable cause to believe that contraband will be found at the place to be searched is insufficient to buttress a finding of probable cause by the issuing magistrate." 257 Kan. at 720.
Here, the warrant for searching Malm's residence consisted of recounting the incident at Target; Malm's suspicious driving from the Target store to Carlton; the exchange between Zimmerman, Feldman, and the Malms; the search of Malm's van, which uncovered blister packs of tablets containing pseudoephedrine, a syringe, baggies, and coffee filters; and Malm's 2004 conviction of possession of methamphetamine. There was no indication