State v. Possemato

1
NOT DESIGNATED FOR PUBLICATION

No. 115,087

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROCCO ERIC POSSEMATO,
Appellant.


MEMORANDUM OPINION

Appeal from Geary District Court; RYAN W. ROSAUER, judge. Opinion filed January 5, 2018.
Reversed and vacated.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

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

Before STANDRIDGE, P.J., PIERRON, J., and BURGESS, S.J.

PER CURIAM: This case involves the traffic stop of a car traveling on I-70 in
Geary County. Sheriff Deputy Justin Stopper initiated the traffic stop of a vehicle driven
by Sean Possemato (Sean), and occupied by Sean's brother, Rocco Eric Possemato
(Possemato), who was a passenger in the car. Sean was stopped for improper driving on a
two-lane highway. According to Deputy Stopper, the car was driving in the left lane of
traffic on I-70 in violation of K.S.A. 2016 Supp. 8-1522(c), which prohibits a driver from
driving in the left lane of an interstate unless the driver is in the process of passing
another vehicle or avoiding an obstruction on the roadway. After the car was stopped, a
drug dog was brought to the stopped car to execute a drug sniff. When the officers
2
informed Sean and Possemato that the dog indicated the presence of narcotics, Sean
admitted to having 19 pounds of drugs in the trunk of the car. The officers searched the
car and found a large quantity of high-grade marijuana in vacuum-sealed bags in the
trunk.

Possemato ultimately was charged with possession of marijuana with the intent to
distribute, conspiracy to possess marijuana with intent to distribute, and no drug tax
stamp. Possemato filed a motion to suppress Sean's statements and the marijuana
discovered, arguing that this evidence was discovered after an unlawful detention and
dog sniff and therefore should have been suppressed as fruit of the poisonous tree. After
an evidentiary hearing, the district court denied Possemato's motion to suppress. A jury
ultimately acquitted Possemato on the possession of marijuana with the intent to
distribute and no drug tax stamp charges but convicted Possemato of conspiracy to
possess marijuana with the intent to distribute.

Possemato appeals his conviction, arguing (1) K.S.A. 2016 Supp. 8-1522(c) is
unconstitutionally vague and therefore failed to provide the reasonable suspicion
necessary to conduct the traffic stop in this case; (2) the district court should have granted
his motion to suppress Sean's statements and the marijuana discovered; and (3) the
evidence presented at trial was insufficient to support the conspiracy conviction. For the
reasons stated below, we are not persuaded that K.S.A. 2016 Supp. 8-1522(c) is
unconstitutionally vague or that the district court erred in denying Possemato's motion to
suppress. Nevertheless, we agree with Possemato that the evidence presented at trial is
insufficient to support the conspiracy conviction. Accordingly, we vacate Possemato's
conviction for conspiracy to possess marijuana with intent to distribute.




3
I. K.S.A. 2016 Supp. 8-1522(c)

A. Standing

Before reaching the merits of Possemato's claim that K.S.A. 2016 Supp. 8-1522(c)
is unconstitutionally vague as applied to him, this court first must determine whether
Possemato has standing to challenge the statute as unconstitutional. The standing issue
was not addressed by the district court or by either party, but standing is a component of
subject matter jurisdiction and may be raised at any time. Whether a defendant has
standing to challenge a search is a legal question subject to de novo review. State v.
Gilbert, 292 Kan. 428, 431-32, 254 P.3d 1271 (2011). "Standing" is really "a shorthand
method of referring to the issue of whether the defendant's own Fourth Amendment
interests were implicated by the challenged governmental action." United States v.
Kimball, 25 F.3d 1, 5 n.1 (1st Cir. 1994).

The Fourth Amendment to the United States Constitution protects the public from
warrantless searches by the government. Under the Fourth Amendment, individuals have
the right to be free from unreasonable governmental searches and seizures. State v.
Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). Evidence obtained as the result of
an unconstitutional search is inadmissible and must be suppressed. Wong Sun v. United
States, 371 U.S. 471, 484-87, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

Fourth Amendment rights are personal rights, and therefore, "[a] person who is
aggrieved by an illegal search and seizure only through the introduction of damaging
evidence secured by a search of a third person's premises or property has not had any of
his Fourth Amendment rights infringed. [Citation omitted.]" Rakas v. Illinois, 439 U.S.
128, 134, 99 S. Ct. 421, 58 L. Ed. 387 (1978); see Gilbert, 292 Kan. at 435-36 (passenger
lacked standing to challenge constitutionality of vehicle search because passenger did not
claim any ownership or possessory interest in vehicle). It is a longstanding rule that
4
remedies for violations of constitutional rights are only afforded to the individual who
"belongs to the class for whose sake the constitutional protection is given." Hatch v.
Reardon, 204 U.S. 152, 160, 27 S. Ct. 188, 51 L. Ed. 415 (1907). Thus, an individual
seeking to challenge the legality of a search as the basis for suppressing evidence must
establish that he or she was the victim of a violation of his or her constitutional rights.
United States v. Salvucci, 448 U.S. 83, 86-87, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980).

A passenger of a vehicle has standing when the initial stop of the car and seizure
of both passengers was illegal. See State v. Epperson, 237 Kan. 707, 718, 703 P.2d 761
(1985). With regard to constitutionality, a defendant has standing to challenge the
constitutionality of a statute only insofar as that statute was unconstitutionally applied to
him or her. See State v. Snow, 282 Kan. 323, 343, 144 P.3d 729 (2006), disapproved on
other grounds by State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012); State v. Thompson,
237 Kan. 562, 563, 701 P.2d 694 (1985). In other words, a defendant cannot challenge
the constitutionality of a statute if the statute was not applied in the defendant's case.
State v. Jacobs, 293 Kan. 465, Syl. ¶ 2, 263 P.3d 790 (2011).

Possemato was not the driver of the vehicle. But the stop of the vehicle in which
he was traveling, the detention of his brother, and the search of the vehicle led to the
discovery of marijuana, which was the evidence that provided the basis for Possemato's
arrest. Thus, Possemato has standing to challenge the constitutionality of the statute
justifying the traffic stop.

B. Unconstitutionally vague

Having determined Possemato has standing to challenge the statute as
unconstitutional, we now move to the merits of Possemato's claim that K.S.A. 2016
Supp. 8-1522(c) is unconstitutionally vague as applied to him. Possemato challenged the
5
constitutionality of this statute (as applied to him) before the district court below, so the
issue is properly preserved for appeal.

If the statute is unconstitutionally vague as applied to him, then law enforcement
would not have had the requisite reasonable suspicion to have conducted the traffic stop
and any evidence discovered as a result of that stop would have to be suppressed. The
question of whether a statute is constitutional presents a question of law subject to
unlimited review. State v. Bollinger, 302 Kan. 309, 318, 352 P.3d 1003 (2015), cert.
denied 136 S. Ct. 858 (2016). In reviewing a statute, the appellate courts presume statutes
are constitutional and must resolve all doubts in favor of a statute's validity. Courts must
interpret a statute in a way that makes it constitutional if there is any reasonable
construction that would maintain the Legislature's apparent intent. State v. Petersen-
Beard, 304 Kan. 192, 194, 377 P.3d 1127, cert. denied 137 S. Ct. 226 (2016).

To determine whether a criminal statute is unconstitutionally vague, the appellate
courts employ a two-part test. First, the court assesses whether the statute gives adequate
warning of the proscribed conduct. This part of the void for vagueness test is based on the
due process requirement that a statute's language must convey a sufficient warning of the
conduct proscribed when measured by common understanding and practice. State v.
Adams, 254 Kan. 436, 438, 866 P.2d 1017 (1994). A statute is unconstitutionally vague if
it fails to "'provide a person of ordinary intelligence fair notice of what is prohibited.'"
Bollinger, 302 Kan. at 318.

In the second step, the court determines whether the statute provided clear
standards to those who apply them so as to prevent arbitrary and discriminatory
enforcement. 302 Kan. at 318. A vague law impermissibly delegates basic policy matters
to police officers, judges, and juries for resolution on a subjective basis, with the dangers
of arbitrary and discriminatory application. See City of Wichita v. Hackett, 275 Kan. 848,
854, 69 P.3d 621 (2003). Under this second step of the test, a statute will be found
6
unconstitutionally vague if it "'forbids the doing of an act in terms so vague that persons
of common intelligence must necessarily guess at its meaning and differ as to its
application.'" Adams, 254 Kan. at 439 (quoting State v. Dunn, 233 Kan. 411, 418, 662
P.2d 1286 [1983]). A statute is not unconstitutionally vague if its words are commonly
used or judicially defined, or have a settled meaning in law. City of Wichita, 275 Kan. at
853-54.

Under the Fourth Amendment to the United States Constitution, the stop of a
vehicle being driven always constitutes a seizure. Thompson, 284 Kan. at 773; see
Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979). In order
to make such a stop, an officer must have articulable facts sufficient to constitute
reasonable suspicion for the stop under K.S.A. 22-2402 and Terry v. Ohio, 392 U.S. 1, 88
S. Ct. 1868, 20 L. Ed. 2d 889 (1968). A traffic infraction provides an objectively valid
reason to effectuate a traffic stop. City of Norton v. Wonderly, 38 Kan. App. 2d 797, 802-
03, 172 P.3d 1205 (2007).

According to Deputy Stopper's testimony, Possemato's vehicle was traveling in the
left-hand lane and not passing any other vehicles, nor was it allowing other vehicles to
merge on the highway. K.S.A. 2016 Supp. 8-1522 provides:

"Whenever any roadway has been divided into two or more clearly marked lanes
for traffic, the following rules in addition to all others consistent herewith shall apply.
"(a) A vehicle shall be driven as nearly as practicable entirely within a single lane
and shall not be moved from such lane until the driver has first ascertained that such
movement can be made with safety.
"(b) Upon a roadway which is divided into three lanes and provides for two-way
movement of traffic, a vehicle shall not be driven in the center lane except when
overtaking and passing another vehicle traveling in the same direction when such center
lane is clear of traffic within a safe distance, or in preparation for making a left turn or
where such center lane is at the time allocated exclusively to traffic moving in the same
7
direction that the vehicle is proceeding and such allocation is designated by official
traffic-control devices.
"(c) Upon a highway located outside the corporate limits of any city divided into
two lanes of traffic proceeding in the same direction, all vehicles shall be driven in the
right lane except when:
(1) Overtaking and passing another vehicle;
(2) preparing to make a proper left turn;
(3) otherwise directed by official traffic-control devices; or
(4) otherwise required by other provisions of law.
"(d) Upon a highway located outside the corporate limits of any city divided into
three or more lanes of traffic proceeding in the same direction, vehicles shall not be
driven in the far left lane except when:
(1) Overtaking and passing another vehicle;
(2) preparing to make a proper left turn;
(3) otherwise directed by official traffic-control devices; or
(4) otherwise required by other provisions of law."

The video of the traffic stop clearly shows Possemato's vehicle was being driven
in the left lane. Although Deputy Stopper testified that the vehicle had been traveling in
the left lane for about three miles prior to the traffic stop, only the first mile—before
reaching the city limits of Junction City—is relevant to our analysis because the statute
does not apply within the city limits of Junction City. Thus, we must decide whether the
statute is unconstitutionally vague as applied to Possemato based solely on Deputy
Stopper's testimony and not on the evidence in the video because the video does not
begin until right before the car is stopped within the limits of Junction City.

Possemato claims that the language "[o]vertaking and passing another vehicle" as
set forth in K.S.A. 2016 Supp. 8-1522(c) is vague as applied to him. In support of his
claim, Possemato relies on State v. Reese, 42 Kan. App. 2d 388, 390, 212 P.3d 260
(2009), for the legal proposition that criminal statutes should be narrowly construed,
which in this case would require the court to define "overtake" as it is commonly used,
8
which is "to catch up with." Possemato also relies on Deputy Stopper's testimony, in
which the deputy states that there is no standard as to how far before attempting to pass
another vehicle a vehicle can pull out into the left lane, to support his claim that the
statute is vague. In sum, Possemato complains the statute is unconstitutionally vague
because there is no objective standard within the statute for defining the word "overtake"
and there is no objective criteria for individual officers to use in deciding when one
vehicle begins to overtake another vehicle.

Although no Kansas court has considered whether K.S.A. 2016 Supp. 8-1522(c) is
unconstitutionally vague, federal courts have rejected a similar claim arguing that K.S.A.
2016 Supp. 8-1522(c) is void for vagueness. In United States v. Alvarado, Nos. 14-
10050-01, 14-10050-02-JTM, 2014 WL 2711910 (D. Kan. 2014) (unpublished opinion),
the court found that

"Subsection (c) is far less vague than Subsection (a)'s requirement of maintaining a single
lane of traffic if 'practical,' yet that provision has repeatedly been applied by both federal
and Kansas state courts without any suggestion that it is impermissibly vague. Similarly,
Subsection (c) is also far more definite than the Oklahoma statute prohibiting 'imped[ing]
the normal flow of traffic,' which the Tenth Circuit has explicitly upheld against a
vagueness challenge. United States v. Borrego, 66 [Fed.] Appx. 797, 800 (10th Cir.
2003)." Alvarado, 2014 WL 2711910, at *2.

The Alvarado court concluded that "[t]he statute prohibiting travel in the inside
lane unless '[o]vertaking or passing' another vehicle is readily understandable by persons
of ordinary intelligence." 2014 WL 2711910, at *3.

In Baker v. State, 50 S.W.3d 143 (Tex. App. 2001), the defendants challenged the
constitutionality of a statute requiring that vehicles stay in the right lane, except when
passing, in certain posted areas. The Texas Court of Appeals rejected the void for
vagueness argument regarding a similar statute. The court stated:
9
"[P]eople of ordinary intelligence would know from reading the sign that the left lane
was for passing only. Furthermore, such persons would not have to guess as to whether
they were passing another vehicle. It is obvious from the sign that, if a person is not in the
process of passing another vehicle, the person is not to be in the left lane. We think that a
person of ordinary intelligence would know when the person is no longer passing a
vehicle and must move from the left lane. [Citation omitted.]" 50 S.W.3d at 146.

In Kansas, K.S.A. 2016 Supp. 8-1522(c) provides that all vehicles shall be driven
in the right lane except when "[o]vertaking and passing another vehicle." Although this
may not have the exact meaning to all drivers, it effectively communicates that a driver
should drive in the right lane except when he or she is in the process of overtaking and
passing another vehicle. Here, the State persuasively argues that a person of common
intelligence is adequately notified of the prohibited conduct under the language used in
K.S.A. 2016 Supp. 8-1522(c).

Based on the discussion above, we find K.S.A. 2016 Supp. 8-1522(c) reasonably
describes conduct that a person of common intelligence would understand is prohibited
and does not contain terms that are confusing or susceptible to ambiguous or differing
meaning. As such, Possemato has failed to demonstrate that K.S.A. 2016 Supp. 8-1522(c)
is unconstitutionally vague as applied to him.

II. Motion to suppress

An appellate court uses a bifurcated standard when reviewing a district court's
decision on a motion to suppress. The factual underpinnings of the suppression decision
are reviewed under a substantial competent evidence standard, and the ultimate legal
conclusion drawn from those facts is reviewed de novo. An appellate court does not
reweigh evidence. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893 (2016). The State
bears the burden to prove the lawfulness of the search and seizure. State v. Overman, 301
Kan. 704, 710, 348 P.3d 516 (2015).
10
After an evidentiary hearing on Possemato's motion to suppress, the district court
determined that law enforcement had reasonable suspicion to believe that the driver of
the vehicle was committing a traffic violation and the car stop was not unlawfully
extended to facilitate a dog sniff. Based on the drug dog alert and Sean's subsequent
confession, the district court concluded there was probable cause to conduct a search of
the car.

On appeal, Possemato claims the district court should have granted his motion to
suppress Sean's statements to law enforcement and to suppress the marijuana discovered
in the trunk of the car as both pieces of evidence were fruit of the poisonous tree.
Specifically, Possemato argues Deputy Stopper did not have reasonable suspicion to
conduct a traffic stop; thus, the subsequent dog sniff and Sean's statements to law
enforcement must be suppressed. Even assuming there was reasonable suspicion to
initially detain the occupants of the vehicle, Possemato argues in the alternative that the
dog sniff and Sean's statements to law enforcement occurred only after Deputy Stopper
unlawfully prolonged Sean's detention beyond the time needed to conduct the traffic stop;
thus, again, the dog sniff and Sean's statements to law enforcement must be suppressed.
We address each of Possemato's arguments in turn.

A. Reasonable suspicion

Possemato challenged the initial stop of the vehicle. He asserted the vehicle was in
the process of legally overtaking another vehicle in the passing lane, in compliance with
K.S.A. 2016 Supp. 8-1522. Because there was no legal basis for the stop, Possemato
argues Sean's statements and the drugs discovered in the trunk of the car must be
suppressed as fruit of the poisonous tree.

The district court disagreed with Possemato, finding the video showed Sean was
lingering in the left lane in violation of K.S.A. 2016 Supp. 8-1522(c), so the officer had
11
reasonable suspicion justifying the traffic stop. Deputy Stopper testified that the car was
traveling in the left-hand lane of the highway, but the driver was not in the process of
passing another vehicle or avoiding an obstruction in the roadway. A traffic violation,
even if pretextual, provides an objectively valid reason to effect a traffic stop. We find
substantial competence evidence supports the district court's factual findings and affirm
the court's legal conclusion that the officer had reasonable suspicion to justify the traffic
stop.

B. Prolonged detention

Generally, once an officer has determined that the driver has a valid license and is
authorized to drive the vehicle, the driver should be allowed to leave without further
delay. State v. Coleman, 292 Kan. 813, 816, 257 P.3d 320 (2011). A law enforcement
officer is permitted, however, to make inquiries and to take action unrelated to the
purpose of the initial stop as long as the additional inquiries do not measurably extend or
prolong the stop. If an officer's additional inquiries or actions measurably extend or
prolong the traffic stop beyond its initial purpose, the officer must have an objectively
reasonable and articulable suspicion that criminal activity had taken place or was taking
place. 292 Kan. at 816-17.

The United States Supreme Court has held that the Fourth Amendment does not
require reasonable, articulable suspicion to justify using a drug dog to sniff a vehicle after
a lawful traffic stop. Illinois v. Caballes, 543 U.S. 405, 407-09, 125 S. Ct. 834, 160 L.
Ed. 2d 842 (2005). However, the traffic stop may become unlawful if it is prolonged
beyond the time reasonably required to complete the initial reason for the stop. 543 U.S.
at 407. An officer must not arbitrarily detain an individual in order to procure a drug dog.
Coleman, 292 Kan. at 823. The permissible length of a traffic stop is determined by the
reason for the stop and the circumstances surrounding the stop rather than by a specific
time limit. See State v. Mitchell, 265 Kan. 238, 241-45, 960 P.2d 200 (1998). In resolving
12
this issue, the court must determine whether the totality of the circumstances justified the
prolonged detention. State v. Walker, 292 Kan. 1, 8-9, 251 P.3d 618 (2011).

In his motion to suppress, Possemato acknowledged that, when viewed in
isolation, a drug dog sniff conducted outside of a vehicle does not constitute a search
under the Fourth Amendment that can be challenged. But Possemato claimed the court
cannot look at the dog sniff in isolation here because the dog sniff occurred after the
purpose of the traffic stop had been effectuated. Possemato claimed that when the totality
of the circumstances are considered, this particular search violated his right to be free
from unreasonable searches and seizures under the Fourth Amendment. The district court
was not persuaded by Possemato's argument. After reviewing the video of the traffic stop,
the district court found the dog sniff began before the traffic stop was over, and there was
no unusual delay in the stop or the records check.

A review of the video confirms the district court's factual findings. For purposes of
clarity, we have created a brief chronology of the stop based on our review of the video:

0:00 Deputy Stopper activated his patrol lights directing Sean to pull the vehicle over.
1:25 Deputy Stopper's patrol car and Sean's car parked on the shoulder of the highway.
1:45 Deputy Stopper told Sean, the driver, the reason for the stop.
 Sean told Deputy Stopper that he was not from here, which Deputy Stopper
understood to mean that Sean was not familiar with the Kansas law.
 Deputy Stopper asked Sean where he was going. Sean said Boston.
 Deputy Stopper asked for Sean's driver's license, registration, and insurance card.
Upon review of the vehicle registration, Deputy Stopper noticed the car was a
rental.
2:33 Deputy Stopper asked for a copy of the rental agreement. Sean complied.
 Deputy Stopper asked Sean to get out of the rental vehicle and accompany him to
the patrol car. Possemato remained inside the rental car.
13
 Deputy Stopper told Sean that if everything checked out, Sean would receive only
an oral warning for the traffic violation.
3:20 Deputy Stopper and Sean entered the patrol car together.
 Deputy Stopper asked Sean where he was coming from. Sean said Denver.
 Deputy Stopper talked to Sean about his travel plans and what he did for a living.
The video confirmed that Sean voluntarily engaged in this conversation and, in
fact, was very chatty.
5:27 Deputy Stopper submitted Sean's driver's license information to the dispatcher.
6:02 Deputy Stopper requested a canine unit report to the scene.
9:16 Dispatch told Deputy Stopper that Sean's driver's license was not in the database.
9:20 Deputy Stopper asked dispatch to check it again.
9:50 K-9 Officer Christopher Ricard arrived at the scene.
10:05 Dispatch told Deputy Stopper it found a record of Sean's license in Massachusetts.
10:24 Officer Ricard took his drug dog around the car to sniff for narcotics.
12:31 Officer Ricard reported to Deputy Stopper that the dog alerted for narcotics.
12:40 Deputy Stopper told Sean that the dog alerted to drugs; Sean initially denied it.
14:18 Sean admitted to having 19 pounds of drugs in the trunk of the car.
17:41 Officers found large quantities of marijuana in vacuum-sealed bags in the trunk.

In sum, the video confirms that K-9 Officer Ricard and his dog arrived on the
scene just prior to the confirmation of the driver's license, and Sean's driver's license was
confirmed almost simultaneously with the deployment of the dog for a sniff around the
car. Based on the facts in the record as set forth above, we find substantial competent
evidence supports the district court's finding that the dog sniff began before the traffic
stop was completed. The permissible length of a traffic stop is determined by the reason
for the stop and the circumstances surrounding the stop rather than by a specific time
limit. See Mitchell, 265 Kan. at 241-45. In this case, there is no indication that Deputy
Stopper waiting to hear back from dispatch was a staged act to cause undue delay or
extend the detention of the traffic stop. About 10 minutes into the video, the drug dog
14
began the drug sniff. The confirmation of the driver's license came back almost
simultaneously to the dog's sniff of the car, so Sean and Possemato were not delayed
beyond the purpose of the stop. See Rodriguez v. United States, 575 U.S. ___, 135 S. Ct.
1609, 1616, 191 L. Ed. 2d 492 (2015) (once purpose of stop concludes, persons could not
be detained beyond purpose of stop). The dog sniff did not take long, and it probably
would have concluded in the time that it would have taken Sean to exit the officer's
vehicle and return to the rental vehicle. From the time the vehicle was stopped to the time
that Ricard indicated that the dog alerted, approximately 11 minutes lapsed.

The district court concluded that the canine sniff began before the completion of
the traffic stop and that there was no unusual delay in the stop or any indication that
Deputy Stopper was attempting to extend the stop to allow time for the K-9 unit to arrive.
We find substantial competent evidence supports the district court's factual findings in
this regard. We further find these factual findings support the district court's legal
conclusion that Sean and Possemato were not delayed beyond the records check for
purposes of allowing the drug dog to walk the perimeter of the car to detect the odor of
narcotics. As such, the district court did not err in denying the motion to suppress for this
reason.

C. Drug dog alert

Possemato claims there was insufficient evidence presented at the suppression
hearing from which the court could conclude that the drug dog alerted to the presence of
narcotics in the vehicle. Without the dog's alert, Possemato argues Sean never would
have made his statement regarding the presence of drugs in the trunk of his car. Without a
dog alert and Sean's statement, the officers would not have had probable cause to search
the vehicle.

15
At the suppression hearing, Officer Ricard testified that his dog, Scooby, was
trained in narcotics detection. Officer Ricard also described his own specialized training
as a K-9 handler. Officer Ricard had been a K-9 handler for a year and a half. Scooby
was trained to alert to the presence of methamphetamine, heroin, cocaine, and marijuana.
He was certified just over three weeks prior to the traffic stop.

After arriving on the scene, Officer Ricard made contact with Possemato,
explained what he was doing, and asked him not to antagonize the dog while he was
working. Officer Ricard stated that while conducting a sweep of the car, Scooby
exhibited "alert behavior, which is intense sniffing and frantic behavior, around the seam
of the rear of the vehicle." Officer Ricard testified:

"[W]hen I got back to the corner, after working around the first time counter clockwise,
my dog would go out towards the ditch, observing that aler—or, displaying that alert
behavior, and then would come back to the vehicle. He did that several times. He also
tried to go underneath the vehicle, which is uncommon for him, when just doing a sniff
around a vehicle."

Officer Ricard said that he understood the change in behavior to mean that Scooby
alerted to the presence of narcotics. Officer Ricard stated that Scooby was a "passive-
alert" dog, which meant that he would sit or lie down when he found the source of the
narcotics. Officer Ricard explained that an indication is the "final response, when he
believes he's located the source of the odor." Officer Ricard testified that Scooby had
never given a false positive in training. Officer Ricard said that Scooby alerted by
showing "intense sniffing and frantic behavior." Officer Ricard testified, "It's a different
sniffing than him actually sniffing." Officer Ricard said that Scooby alerted on the car
and detected the odor of narcotics, but Scooby never indicated with the final response to
show that he had found the source of the odor.

16
Officer Ricard informed Deputy Stopper that the dog had alerted to the odor of
narcotics coming from the rental car. Deputy Stopper told Sean of the drug dog's alert. At
first, Sean denied possessing any drugs, but he soon admitted to having 19 pounds in the
trunk of the car. The car was searched, and the marijuana was located in the trunk.

Possemato called an expert witness, Andre Falco-Jimenez, to testify at the
suppression hearing regarding the dog sweep conducted by Officer Ricard and Scooby.
Falco-Jimenez was a police officer for 24 years, handling dogs for 20 of those years.
After his career as a police officer, Falco-Jimenez started a business training dogs for
patrol work and for the detection of various things, including narcotics. In his career, he
trained "[a] few thousand" dogs, 75% of which went to law enforcement. The court found
Falco-Jimenez to be qualified as an expert.

Falco-Jimenez testified that he watched the car stop video that had been played at
the suppression hearing. Falco-Jimenez saw Scooby, a Belgian Malinois, exhibit a high
intensity from the moment the dog entered the frame of the video. Falco-Jimenez testified
that Scooby maintained the high energy during the course of the search, and he believed
Officer Ricard was controlling the dog's movements to attempt to get the dog to focus.
Falco-Jimenz believed that Officer Ricard was working too hard to try to get Scooby to
stay where he wanted him to be, and he was influencing the dog. Falco-Jimenez believed
that Scooby was distracted from his task due to the overhandling by Officer Ricard.
Falco-Jimenez explained this was a problem with drug dogs because if a handler is
spending too much time on specific spots, the dog will begin to believe that is where the
handler wants it to be. He said the dog should search independently.

Falco-Jimenz testified that he never saw Scooby make any indication of an alert
on narcotics. Falco-Jimenez admitted that he was unable to see Scooby and observe his
behavior on the video during the entire search because there were times that Scooby was
blocked by Officer Ricard.
17
In support of suppression, Possemato places emphasis on his expert's testimony
that Scooby did not alert to the presence of narcotics and was being influenced by his
handler. In contrast, Officer Ricard testified that Scooby alerted to the presence of
narcotics by exhibiting "alert behavior, which is intense sniffing and frantic behavior,
around the seam of the rear of the vehicle." That Officer Ricard testified Scooby alerted
but did not give a final indication about the precise location of the drugs is of no legal
consequence. See United States v. Parada, 577 F.3d 1275, 1282 (10th Cir. 2009)
(upholding an alert as establishing probable cause to search, finding no need for final
indication as to exact location of drugs).

The district court's findings regarding the credibility of these two witnesses do not
appear to be included in the record on appeal. The journal entry merely indicates that the
K-9 search was valid. The November 3, 2014 hearing—at which the district court orally
issued its ruling—is not included in the record on appeal either. But the party claiming
that an error occurred has the burden of designating a record that affirmatively shows
prejudicial error. Without such a record, an appellate court presumes the action of the
district court was proper. See State v. Sisson, 302 Kan. 123, 128, 351 P.3d 1235 (2015).
The district court heard the testimony during the motion to suppress and independently
reviewed the videotape of the drug dog sniff. This court generally will not reweigh the
evidence or the credibility of witnesses. State v. Daws, 303 Kan. 785, 789, 368 P.3d 1074
(2016). We find substantial competent evidence supports the district court's conclusion
that the dog alerted and that this fact, combined with Sean's confession, establishes
probable cause to conduct a search of the car.

III. Conspiracy

Possemato challenges the sufficiency of the evidence of his conviction for
conspiracy to possess marijuana with the intent to distribute. When a defendant
challenges the sufficiency of the evidence in a criminal case, an appellate court reviews
18
the evidence in a light most favorable to the State to determine whether a rational fact-
finder could have found the defendant guilty beyond a reasonable doubt. State v. Belt,
305 Kan. 381, 397, 381 P.3d 473 (2016). This court does not reweigh the evidence or
assess the credibility of witnesses. Daws, 303 Kan. at 789.

To convict, the jury was instructed in this case that the State was required to
prove, beyond a reasonable doubt, that

"1. The defendant agreed with Sean Possemato to commit or assist in the commission of
possession of marijuana with the intent to distribute.
"2. The defendant did so agree with the intent that possession of marijuana with the
intent to distribute be committed.
"3. The defendant or any party to the agreement acted in furtherance of the agreement
by transporting approximately 19 pounds of marijuana.
"4. This act occurred on or about the 27th day of October, 2013, in Geary County,
Kansas."

As noted in the instruction, an agreement is an essential element to the crime of
conspiracy, and the jury was instructed that it had to find that Possemato agreed with
Sean to commit or assist in the commission of possessing marijuana with the intent to
distribute in order to find him guilty. See K.S.A. 2016 Supp. 21-5302(a) (State must
show defendant entered into agreement with another person to commit crime or assist in
committing the crime); State v. Northcutt, 290 Kan. 224, 231, 224 P.3d 564 (2010).

"To establish a conspiracy agreement, the State must prove that the conspirators
had a mutual understanding, a meeting of the minds, or a common purpose. Conspiracy
may not be established by mere association or knowledge of the acts of the other parties;
there must be some intentional participation in the conspiracy. Nevertheless, conspiracy
is generally established by inference, drawn from acts done in pursuit of an apparently
criminal purpose. [Citations omitted.]" State v. McHone, No. 93,493, 2006 WL 163455,
at *7 (Kan. App. 2006) (unpublished opinion).
19
The existence of an agreement does not need to be proved directly. Rather, "'it is enough
if the parties tacitly come to an understanding in regard to the unlawful purpose, and this
may be inferred from sufficiently significant circumstances.'" Northcutt, 290 Kan. at 231-
32.

When interviewed, Sean told Deputy Stopper that Possemato did not know
anything about the marijuana. Despite Sean's claim, Deputy Stopper arrested Possemato
because he believed the brothers had agreed to possess the drugs with the intent to
distribute. Deputy Stopper testified that the amount of planning for the trip would have
been extensive. Deputy Stopper said Possemato was nervous from the very beginning of
the traffic stop, which the deputy found odd given Possemato was merely a passenger in
the vehicle and was in no danger of receiving a ticket for a traffic violation. Deputy
Stopper noted Possemato's "leg was actually shaking. And I believe that he noticed me
notice his leg was shaking, and he placed his hand on it to stop it from shaking." In
further support of a conspiracy to possess and distribute marijuana, Deputy Stopper
testified that he noticed the strong odor of air freshener coming from the rental vehicle's
interior, which he found to be suspicious since the vehicle was only to be rented for a
short period of time. Deputy Stopper testified that air-freshening devices are often used to
mask the odor of illegal drugs. Deputy Stopper also found it unusual for the brothers to
have flown to a location and then rent a car for the return trip, explaining that he believed
it would be more expensive to do that than to book a round trip flight. Although Sean
explained to Deputy Stopper that he rented the car after an uncle called him on Saturday
to invite him to attend a World Series game in St. Louis on Monday, Deputy Stopper
noticed on the rental agreement paperwork that Sean had rented the car before the
baseball game had been scheduled. During his search of the vehicle, Deputy Stopper also
confiscated a Target receipt showing the purchase of a large quantity of Foodsaver
vacuum bags—the same type of bags containing the marijuana.

20
The State has provided circumstantial evidence from which the jury could have
inferred that Possemato knew there was marijuana in the trunk of the car, which would
support the crime of possession. But the State has not provided any circumstantial
evidence from which the jury could have inferred that Possemato and Sean had an
agreement to possess marijuana with the intent to distribute it. An agreement requires a
meeting of the minds; if there is no meeting of the minds, there is no conspiracy. The
State must prove that the conspirators had a mutual understanding or agreement, or the
accomplishment of a common purpose. State v. Smith, 268 Kan. 222, 228, 993 P.2d 1213
(1999). There is some indirect evidence that Possemato knew about the plan to acquire
the marijuana and drive it back to Massachusetts for sale. But there is no evidence from
which we can infer Possemato entered into an agreement with Sean to distribute or sell
the marijuana once they arrived back in Massachusetts. And there certainly is no direct
evidence to show that Possemato intentionally participated in the conspiracy to distribute
marijuana. In sum, the evidence, even when viewed in the light most favorable to the
State, is not sufficient for a rational fact-finder to find Possemato guilty of conspiracy to
possess marijuana with the intent to distribute beyond a reasonable doubt. For this reason,
Possemato's conviction for this offense must be reversed and his sentence vacated.

Possemato's conviction for conspiracy to possess marijuana with the intent to
distribute is reversed and his sentence is vacated.