State v. Bradley

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NOT DESIGNATED FOR PUBLICATION

No. 116,249

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

ROBERT BRADLEY,
Appellee.


MEMORANDUM OPINION

Appeal from Geary District Court; STEVEN L. HORNBAKER, judge. Opinion filed March 24, 2017.
Affirmed.

Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellant.

Britain D. Stites, assistant public defender, of North Central Regional Public Defender's Office,
of Junction City, for appellee.

Before MCANANY, P.J., MALONE, J., and STUTZMAN, S.J.

Per Curiam: This is an interlocutory appeal by the State from an order of the
district court partially granting a motion to suppress marijuana seized in a search. Law
enforcement officers found the marijuana in a duffel bag located in a truck in which
Robert Bradley was a passenger. Upon review, we find no error and affirm.

FACTS AND PROCEDURAL BACKGROUND

Just before midnight on January 9, 2016, on Interstate 70 in Geary County,
Lieutenant Daniel Jackson of the Geary County Sheriff's Department stopped a Nissan
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Frontier pickup fitted with a camper shell. Although he was wearing a body camera,
Jackson did not activate it at any time. While Jackson talked to the driver, Lydell
Sheegog, and the front seat passenger, Robert Bradley, he detected what he believed to be
a strong odor of raw marijuana and saw what he thought was a marijuana cigarette in the
handhold recess in the driver's door. Jackson called for backup, and four officers
responded to the scene. In addition to Sheegog and Bradley, officers found the truck also
was occupied by Robert Bobb, Sarah Cooley, and two dogs, all in the bed of the truck,
where they were initially concealed from view by the camper shell.

The officers arrested Sheegog, who told them they would find between 1 ounce
and 2 pounds of marijuana in the vehicle and that it belonged to all four of them. When
requested, Bradley got out of the truck, and one of the officers saw a black glass pipe
lying between the center console and Bradley's seat.

The officers took all four passengers, the truck, and the two dogs to the Geary
County warehouse. The dogs remained in the truck bed while it was being towed. When
the camper was opened for search, the dogs were observed eating marijuana from a
gallon Ziploc bag officers had not noticed previously. Bradley told the officers that he
knew Sheegog had a small amount of marijuana and would not be surprised if Bobb and
Cooley had some as well. He also told the officers that of the items in the truck, he owned
a red backpack and a sleeping bag. The officers found Bradley's backpack in the truck
bed. Among other personal items and clothes the officers found in Bradley's backpack,
there was a syringe with liquid THC. The officers photographed the syringe but not the
other items in the backpack.

Further search of the truck bed produced two bags of marijuana hidden inside
sleeping bags and blankets, a glass smoking pipe where Cooley had been lying, a grinder
in a purse, and small baggies believed to contain marijuana. When the officers searched
the cab of the truck more thoroughly, they found a green, military-style duffel bag behind
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the driver's seat containing clothes and 494.22 grams of marijuana. The officers did not
take the duffel bag into evidence with the marijuana, nor did they take any pictures of the
bag's contents, repack the bag, or replace it in its original location. Also behind the
driver's seat and underneath the duffel bag, the officers found a green and blue backpack
with a checkbook belonging to Sheegog and a small baggie of marijuana. As with the
duffel, the officers did not photograph or record the contents of any of the other luggage
found in the truck. The search by the officers found 138.31 grams of marijuana in the
backpack behind the driver's seat, 51.91 grams of marijuana in the truck bed, and 494.22
grams of marijuana in the duffel bag behind the driver's seat, on top of the backpack.

On January 14, 2016, the Geary County Attorney charged Bradley with possession
of marijuana with intent to distribute, a drug severity level 2, nonperson felony;
possessing a controlled substance without a drug tax stamp, a severity level 10,
nonperson felony; possession of marijuana, a class A, nonperson misdemeanor; and
possession of drug paraphernalia, a class A, nonperson misdemeanor. Following a
preliminary hearing, Bradley entered not guilty pleas.

On April 1, 2016, one of Bradley's defense attorneys, with an investigator from the
public defender's office, inspected the truck, still held at the Geary County warehouse.
They observed the state of the truck had changed substantially from the photographs that
the officers had taken. In the officers' photos, blankets and a tarp are visibly laid out near
the tailgate inside the truck bed. When the attorney and investigator inspected the truck,
however, the truck bed was filled to the top of the camper with items that were not
mentioned in any law enforcement reports. They found a green duffel bag in the truck
bed, but it was empty. There were clothes and other items strewn about the truck bed
without any organization.

On June 16, 2016, Bradley filed a motion to dismiss and/or exclude evidence
based on destroyed evidence. He argued that if the district court denied dismissal of the
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charges, the court should suppress the marijuana found in the duffel bag because police
failed to preserve evidence that would have shown the bag did not belong to him. Bradley
also contended the bags of marijuana eaten by the dogs should be suppressed because the
police, in bad faith, had left them in the truck, which allowed the dogs to alter the
location of items that could have shown the marijuana did not belong to him.

The district court granted Bradley's motion to exclude, in part, by a memorandum
and order entered on July 6, 2016. The judge determined that any clothing found inside
the duffel bag would have been exculpatory because each person in the truck had his or
her own luggage. The district court further found that the exculpatory nature of the
clothing, and the State's failure to preserve it through any means, violated Bradley's due
process rights, requiring suppression of the marijuana evidence found in the duffel bag.

Although not obligated to proceed with further analysis, the district judge also
found the State acted in bad faith, since the exculpatory nature of the evidence was "so
obvious." The court denied suppression of evidence found elsewhere in the truck as well
as evidence eaten or moved by the dogs. The State timely filed its interlocutory appeal
from the adverse ruling on Bradley's motion.

ANALYSIS

Bradley first disputes our jurisdiction to entertain the State's interlocutory appeal.
He argues that even after the district court's suppression, the State had evidence on which
to proceed. Therefore, its ability to prosecute him was not substantially impaired. In
support of jurisdiction to consider its appeal, the State merely asserts "there is no question
that the suppression substantially impairs the State's case."

We may entertain an interlocutory appeal by the State "'only where the pretrial
order suppressing or excluding evidence places the State in a position where its ability to
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prosecute the case is substantially impaired.'" State v. Kuszmaul, No. 110,694, 2014 WL
3024242, at *2 (Kan. App. 2014) (unpublished opinion) (quoting State v. Newman, 235
Kan. 29, 35, 680 P.2d 257 [1984]). Our Supreme Court has further explained that
substantial impairment includes "'[s]uppression rulings which seriously impede, although
they do not technically foreclose, prosecution.'" State v. Berberich, 267 Kan. 215, 220,
978 P.2d 902 (1999) (quoting State v. Huninghake, 238 Kan. 155, 157, 708 P.2d 529
[1985]).

The district court's suppression of the contraband from the duffel bag likely would
raise a significant barrier for the State to overcome to convict Bradley on the most serious
charge against him. Despite the State's bare, conclusory declaration, therefore, we find we
have jurisdiction to consider the appeal.

We review the district court's decision to suppress the evidence using a bifurcated
standard of review. Initially, we review the district court's findings of fact to determine
whether they were supported by substantial competent evidence without reweighing the
evidence or assessing the credibility of witnesses. We then consider the district court's
ultimate legal conclusion de novo. See State v. Patterson, 304 Kan. 272, 274, 371 P.3d
893 (2016) (reviewing scope of search warrant); State v. Neighbors, 299 Kan. 234, 240,
328 P.3d 1081 (2014) (determining whether emergency aid exception applied to search of
apartment); State v. Gibson, 299 Kan. 207, 215-16, 322 P.3d 389 (2014) (motion to
suppress inculpatory statements).

The parties do not dispute any of the material facts the district court relied on in
excluding the marijuana from the duffel bag. When the material facts related to the trial
court's decision on a motion to suppress are not in dispute, we may move on to de novo
review of the trial court's legal conclusion. State v. Stevenson, 299 Kan. 53, 57, 321 P.3d
754 (2014).

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"The constitutional rights granted an accused under our state constitution are
coextensive with those rights granted an accused under the United States Constitution."
State v. Finley, 273 Kan. 237, 242, 42 P.3d 723 (2002) (citing State v. Spain, 269 Kan.
54, 59, 4 P.3d 621 [2000]). Under the Due Process Clause of the Fourteenth Amendment
to the United States Constitution, "criminal prosecutions must comport with prevailing
notions of fundamental fairness." California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct.
2528, 81 L. Ed. 2d 413 (1984). Fairness requires that defendants be afforded a
meaningful opportunity to present a complete defense. To present a complete defense, the
defendant must receive whatever exculpatory evidence the State may have against him in
order to protect the innocent from erroneous conviction. Trombetta, 467 U.S. at 485;
State v. Wilkins, 269 Kan. 39, 42, 5 P.3d 520 (2000). This standard does not, however,
impose an absolute duty for police to retain and preserve all material that might
conceivably have evidentiary significance. Arizona v. Youngblood, 488 U.S. 51, 58, 109
S. Ct. 333, 102 L. Ed. 2d 281 (1988).

When the State fails to disclose "material[ly] exculpatory evidence," the
defendant's due process rights under the Fourteenth Amendment to the United States
Constitution are automatically violated. Youngblood, 488 U.S. at 57 (violation of the Due
Process Clause of the Fourteenth Amendment as interpreted in Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 [1963]); Finley, 273 Kan. at 241 (applying
Youngblood). This court has discussed the components of that phrase in a Brady analysis:

"Evidence is exculpatory if it tends to disprove a fact in issue that is material to
guilt or punishment or if it may be used to impeach inculpatory evidence of the
prosecution. Evidence is material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine the confidence
of the outcome." State v. Belone, 51 Kan. App. 2d 179, Syl. ¶ 15, 343 P.3d 128, rev.
denied 302 Kan. 1012 (2015).

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Clothing has been used to determine who out of a group owned or exercised
constructive control over an illegal item. See United States v. Hammons, 152 F.3d 1025,
1026-27 (8th Cir. 1998) (defendant was charged with possessing drugs found in a
garment bag containing men's clothing, not his wife in whose name car was rented);
United States v. Pruitt, No. 07-15484, 300 Fed. Appx. 853, 855 (11th Cir. 2008)
(unpublished opinion) (there was sufficient evidence to conclude defendant
constructively possessed the gun, in part because it was found in a bag containing men's
clothing). Significant to this case, Lieutenant Jackson noted the height and weight of each
person found in the truck. Sheegog is 6' 5" and weighs 175 lbs., Bradley is 6' 1" and
weighs 220 lbs., Bobb is 6' 1" and weighs 200 lbs., and Cooley is a 5' 6" female weighing
140 lbs. The physical dissimilarities are apparent.

Jackson testified he found clothing in the duffel bag where he found over a pound
of marijuana. That duffel bag was behind the driver's seat, on top of a backpack that
contained a checkbook that belonged to the driver, Sheegog. Bradley told the officers that
he had a sleeping bag and a red backpack, which they found in the bed of the truck,
containing personal items and clothing, along with a syringe with liquid THC.

Bradley's defense, in part, was that he was not in possession of the marijuana in
the duffel bag, which also contained clothes. Except for the marijuana, however, the
officers did nothing to identify, document, or preserve the contents of the duffel. The
location of the duffel bag and the backpack with Sheegog's checkbook—behind
Sheegog's seat—while Bradley's backpack with clothing and personal items was found in
the truck bed, highlights the significance of information about the noncontraband
contents of the duffel.

As the district judge observed, finding female garments in the duffel, or clothing
unsuited to Bradley's size, would have been of obvious exculpatory significance. The
effect of the loss of that information, however, was as complete as if the items themselves
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had been shredded. The district court found there was no body camera footage for a
contemporaneous record of the search; there were no photographs of the items of luggage
in situ, or of the contents the officers found in each; there was no detailed narrative in the
reports; and the items were not returned to their original places after search. Of the
multiple means to record the officer's findings in the necessary detail, ranging from high-
technology body camera to pencil and paper, none was employed.

When defense counsel and an investigator went to view the truck, clothing and
other items were in disarray in the truck bed, a duffel was found empty in the bed of the
truck, and the bed contained a pile of items not mentioned in any reports. At that point, it
was apparent that Bradley's opportunity for a defense based on distinguishing his
possessions from those found with the bags of marijuana was lost with neither a
contemporaneous record, nor any means for reconstruction.

Evidence effectively was destroyed by the officers. Once the identity of the items
found in the truck, and where the items were found, was lost without record, there was no
basis for recovery. That information unquestionably could have tended to disprove a fact
in issue that is material to Bradley's guilt or punishment—whether he possessed the
pound of marijuana in the duffel; therefore, it was exculpatory. The location of the duffel
bag with respect to what reasonably appeared to be Sheegog's backpack and the known
location of Bradley's backpack with clothing and other items, raises a probability
sufficient to undermine confidence in the outcome of this case. The exculpatory evidence
was material.

The State contends Bradley lost nothing because he could cross-examine the
officers about the contents of the duffel bag at trial. That opportunity is without meaning
when the officers have no basis for providing a response.

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The district court found that the effective destruction of the evidence, through
failure to preserve it, denied Bradley's due process right to present a complete defense.
We agree. The undisputed facts support the district court's conclusion that Bradley was
deprived of material exculpatory evidence. In light of our finding, we need not consider
the district court's additional ruling on bad faith.

Affirmed.