State v. Warren

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NOT DESIGNATED FOR PUBLICATION

No. 117,011

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KIRK R. WARREN,
Appellant.

MEMORANDUM OPINION

Appeal from Greenwood District Court; MICHAEL E. WARD, judge. Opinion filed June 29, 2018.
Affirmed.

Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., GREEN and MCANANY, JJ.

PER CURIAM: Kirk R. Warren appeals his convictions of six counts of unlawful
distribution of a controlled substance and one count of unlawful possession of drug
paraphernalia. He claims the search warrant application was insufficient for obtaining the
search warrant that led to the discovery of evidence of these crimes. He claims the district
court should have suppressed the evidence collected during the search of his home. He
also claims that the district court erred in instructing the jury.


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Factual and Procedural History

This all began when the Greenwood County Sherriff's Department suspected that
Warren was involved in drug dealing out of his house in Eureka. Sergeant Jason Myers
conducted a trash pull from the trash container outside Warren's house and found a
syringe, a white pill, a piece of a drinking straw that was red in color, a wooden stick that
was burnt on one end and red in color, a clear zipper sandwich bag with one corner torn
off, and prescription drug information sheets. In a second trash pull Myers found another
syringe, a piece of aluminum foil burned on both sides with some unidentified residue,
and mail addressed to Warren.

Myers conducted surveillance of Warren for seven months, during which he
observed known drug offenders frequenting Warren's home.

Robin Davidson volunteered to help Myers with the investigation by being a
confidential informant. Davidson, who was on probation, hoped his cooperation would
result in some leniency on one of his charges. He also hoped that becoming an informant
would help him stop using drugs. Davidson provided a list of people that he knew dealt
drugs. Warren was on the list.

Myers supervised a series of controlled purchases of drugs from Warren. Before
each of these transactions, Davidson was strip-searched to make sure he was not carrying
drugs or other contraband. Myers gave Davidson bills to use in purchasing the drugs.
Myers had recorded the serial numbers of the bills. After each buy, Davidson gave the
officers the drugs he had purchased and was again subjected to a strip search. In the fall
of 2015, Davidson made three drug purchases from Warren. During this period, Davidson
tested positive for methamphetamine, which caused Myers to keep a closer eye on him.

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In December 2015, Myers applied for a search warrant based on the assertion that
there was probable cause to believe that Warren was involved in the distribution of
methamphetamine and prescription drugs, possession of drug paraphernalia, and
possession of stolen property at his home in Eureka. For support, Myers cited the items
found in the two trash pulls, his surveillance of Warren's residence, Davidson's controlled
buys, and other information Davidson provided. Myers also cited Warren's violent nature
as demonstrated by his criminal history as support for a no-knock warrant.

The local magistrate approved the warrant, and Myers executed the warrant that
same day. Myers found, among other things, methamphetamine, prescription drugs, and
drug paraphernalia at Warren's house. The methamphetamine he found was in Ziploc
bags and weighed at least 3.54 grams. Myers also found a container of unused plastic
baggies, unused plastic syringes, a bag of used syringes, metal spoons and pipes, a pill
bottle with Warren's name on it, a scale, and narcotic pills. The search also yielded $80 in
cash that had the same serial numbers as the money Myers had given Davidson for one of
the purchases.

Before trial Warren moved to suppress the evidence found during the search. He
claimed the affidavit used to support the search warrant did not contain enough reliable
information from which the magistrate could find probable cause for the search. He
argued the stuff found in his trash did not support a finding of probable cause, the
affidavit did not establish Davidson's credibility or the credibility of the controlled buy
process that was used, and did not specify what was found in the surveillance of Warren's
house and when it was found. The court found that while the affidavit was not perfect,
considering the facts as a whole there was probable cause to issue the warrant.

At trial, the search warrant evidence was introduced over Warren's objection. At
the conclusion of the evidence the court, over Warren's objection, included in its jury
instructions the following:
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"In Count 5, the defendant is charged with unlawfully possessing a controlled
substance, namely methamphetamine, with intent to distribute. The defendant pleads not
guilty. To establish this charge, each of the following claims must be proved:
"1. The defendant possessed methamphetamine.
"2. The defendant did so with the intent to distribute the methamphetamine.
"3. The quantity of methamphetamine possessed was at least 3.5 grams but less
than 10 grams.
"4. This act occurred on or about the 7th day of December, 2015, in Greenwood
County, Kansas.
"The term distribute as used in this instruction means the actual transfer of an
item from one person to another. Distribute includes sale, offer for sale, or any act that
causes an item to be transferred from one person to another.
"A defendant acts with intent when it is his desire or conscious objective to do
the act complained about by the State.
"If you find the defendant possessed 3.5 grams of methamphetamine, you may
infer that the defendant possessed with intent to distribute. You may consider the
inference along with all the other evidence in the case. You may accept or reject it in
determining whether the State has met the burden of proving the intent of the defendant.
This burden of proof never shifts to the defendant."

The jury found Warren guilty of one count of distribution of methamphetamine on
October 3, 2015; one count of distribution methamphetamine on October 12, 2015; one
count of possessing more than 1 gram but less than 3.5 grams of methamphetamine with
the intent to distribute on December 5, 2015; one count of possessing more than 3.5
grams but less 10 grams of methamphetamine with the intent to distribute on December
7, 2015; one count of possessing of drug paraphernalia; one count of possessing less than
10 dosage units of hydrocodone with the intent to distribute on December 7, 2015; and
one count of possessing diazepam and lorazepam on December 7, 2015. The district court
sentenced Warren to 122 months in prison and a consecutive 320-day jail sentence.
Warren appeals.


5

Evidence Obtained from Search of Warren's Home—Validity of the Search Warrant

Warren claims the evidence obtained in the home search should have been
suppressed because the warrant application failed to show probable cause to believe that
he had committed a crime. He argues that the application lacked sufficient details about
the controlled buys, the surveillance of his house, and about Davidson's reliability.
Further, he claimed the information gathered in the trash pulls was stale and did not
support a finding of probable cause.

In considering this claim, we normally review the district court's factual findings
to determine whether they are supported by substantial competent evidence and review
the district court's legal conclusions de novo. State v. Martinez, 296 Kan. 482, 485, 293
P.3d 718 (2013). But here, Warren agrees that the district court's factual findings were
supported by substantial competent evidence, so our review is de novo on the remaining
issue, the district court's legal conclusion.

We start with the presumption that the search warrant and the supporting affidavit
were valid. Warren had the burden of showing that the search warrant was invalid. See
State v. Ames, 222 Kan. 88, 92, 563 P.2d 1034 (1977). Here, Warren claims the warrant
was invalid because the affidavit failed to demonstrate probable cause. In considering this
claim, we look at the totality of the facts and circumstances described in the affidavit to
determine whether there was a fair probability that evidence of a crime would have been
found in Warren's house. In doing this, we give substantial deference to the magistrate
who issued the search warrant. State v. Hensley, 298 Kan. 422, 427-28, 313 P.3d 814
(2013).

In determining whether the facts asserted in the affidavit are sufficient, we
consider all the information in the affidavit as a whole. State v. Malm, 37 Kan. App. 2d
532, 543, 154 P.3d 1154 (2007).
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Staleness

Warren contends that the information gathered during the trash pulls and his
criminal history were stale at the time that Myers applied for the search warrant.

"Stale information is information that no longer informs whether there is a fair
probability that evidence of a crime will be found at a particular place because sufficient
time has elapsed between when the informant acquired the information or an event
occurred and when officers act on the information." Hensley, 298 Kan. at 429.

There is no set time period after which information is considered to be stale. We
look at all the facts and circumstances to resolve a claim of staleness. 298 Kan. at 430.
When an affidavit establishes "the existence of a widespread, firmly entrenched, and
ongoing narcotics operation . . . staleness arguments lose much of their force." United
States v. Hernandez-Escarsega, 886 F.2d 1560, 1566 (9th Cir.1989).

The trash pulls at Warren's house were made about seven months before the search
warrant affidavit. Further, there is no evidence that the items found in Warren's trash
were related to illegal drug usage or distribution. None of the substances or residues
found in the trash were tested for drugs. Used and unused syringes indicate the possibility
of an insulin-dependent diabetic in the home as much as the possibility of an illegal drug
user. The other items found were consistent with personal and lawful use. The items
found in the trash pulls did not support the issuance of a search warrant.

Warren's criminal history covers a period from about 31 years before to about 6
months before the search warrant affidavit was prepared. Warren had one prior
conviction in 2003 for a drug-related crime and eight arrests for drug-related offenses.
Much of Warren's criminal history is too stale to be used to show that evidence of a crime
was likely to be found in his house. But his arrests from 2014 and 2015 for drug-related
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activities are not stale. They tend to show a nexus between Warren and the drug
community during the relevant time period.

Confidential Informant Information

Warren claims that Davidson's information was unreliable. Relying on State v.
Powell, 299 Kan. 690, 698, 325 P.3d 1162 (2014), he argues that Myers failed to cite in
his affidavit any facts supporting Davidson's reliability or credibility.

We measure the probative value of Davidson's information by considering the
totality of the circumstances. See Hensley, 298 Kan. at 431. In doing so we consider
Davidson's veracity, the basis of his knowledge, and any other indicia of reliability. See
Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). A
deficiency in one category may be compensated for by a strong showing in one of the
remaining categories. Hensley, 298 Kan. at 431.

Myers' affidavit did not state any evidence relating to Davidson's veracity. Also,
Myers failed to disclose the fact that Davidson failed a drug test while acting as a
confidential informant and the fact that Davidson was being investigated for dealing in
methamphetamine. But in his affidavit, Myers stated that Davidson (identified only as
"GWSO-009") personally observed the methamphetamine and personally completed the
purchases. Davidson explained to Myers where Warren stored the various drugs in his
house and in his car. He explained how Warren dealt in firearms and stolen property,
which he traded for drugs. He described the various types of stolen property and where
they could be found. Giving due deference to the magistrate who issued the search
warrant and under a totality of the circumstances, Davidson's information was
sufficiently reliable to form a basis for issuance of the search warrant.


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Information Relating to Controlled Buys

Warren claims that the information relating to the controlled buys should not have
been used in the magistrate's determination because Myers failed to state any information
about the controlled buys in the affidavit. In support of his argument, Warren cites State
v. Mitchell, 8 Kan. App. 2d 416, 417, 658 P.2d 1063 (1983), for the proposition that the
affidavit needs to establish the reliability of a controlled buy.

In Mitchell, this court upheld the district court's order to suppress evidence
because the affidavit did not discuss the details of the controlled buy. 8 Kan. App. 2d at
416-17. There, the affidavit merely stated that a controlled purchase of heroine was made
from the occupant of the address. This court stated that the information that was missing
included "who made the 'controlled purchase'; where the purchase was made; who
witnessed the purchase; and if the purchase was not witnessed by an officer, what
controls were imposed and by whom." 8 Kan. App. 2d at 417. The court noted that when
the affiant acknowledges that the confidential informant was working with the affiant, the
inference can be made that the affiant participated in the transaction. 8 Kan. App. 2d at
417.

We conclude that Myers' description of the controlled buys in his affidavit was
sufficiently detailed to be considered by the magistrate in issuing the search warrant.
Here, Myers' affidavit provided: (1) the date of each controlled buy; (2) that Davidson
made the purchases; (3) that he purchased the various drugs from Warren; (4) that the
purchases were made at Warren's residence; (5) the weight of the materials purchased; (6)
the nature of the drugs purchased; (7) that the first purchase was made with money
provided by Myers and Sheriff Charles Bitler; (8) that the serial numbers of the bills used
in this first purchase were recorded; (9) a description of the container used to store the
methamphetamine obtained in the first purchase; (10) that a field test confirmed that the
product obtained in this transaction was methamphetamine; (11) that Myers, deputies
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from the Greenwood County Sheriff's Office, and KBI Special Agents were involved in
the second purchase; (12) that the KBI provided the funds for the second purchase; (13)
that pills obtained in the second purchase were determined to be oxycodone
hydrochloride, which is a schedule two controlled substance; (14) that a field test of the
white crystalline substance from the second purchase was positive for methamphetamine;
(15) that Myers and deputies from the Greenwood County Sheriff's Office were involved
in the third purchase and provided the cash for the purchase; (16) a description of the
container for the drugs obtained in the third purchase; and (17) that audio recordings were
made of the drug purchases.

The Totality of the Facts and Circumstances

Considering the facts and circumstances as a whole, we find that Warren had a
history of being involved in the drug community as demonstrated by his arrest record.
Davidson made controlled buys from Warren on specific dates at Warren's home. The
materials he purchased from Warren during the controlled buys tested positive for
methamphetamine and oxycodone, which are both controlled substances. The last
purchase occurred only two days before Myers applied for the warrant. The informant
gave precise locations of where Warren stored methamphetamine and the amount he saw
while he was in Warren's home. During the last controlled buy, Davidson reported that
Warren possessed approximately a half ounce of methamphetamine. The investigating
officers recorded the audio conversation during the controlled buys, suggesting that they
had monitored the purchases and had corroborated Davidson's stories. Taken as a whole,
these assertions of fact provided a substantial basis for the magistrate's determination that
there was a fair probability that evidence related to the distribution of methamphetamine
would be found in Warren's home. The magistrate did not err in issuing the search
warrant, and the district court did not err in admitting at trial the evidence obtained in the
resulting search.

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The State raises an alternative argument based on the good-faith exception to
exclusionary rule as set out in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L.
Ed. 2d 677, reh. denied 468 U.S. 1250 (1984). Based on our conclusion above, it is
unnecessary to address this argument.

Jury Instructions

Warren claims the district court committed reversible error when it gave a jury
instruction that failed to require the prosecution to prove that Warren had an intent to
distribute 3.5 or more grams of methamphetamine.

In considering this claim, we first determine whether the issue was preserved for
appeal. We then turn to the merits of the claim to determine its merits and, if meritorious,
whether the district court's action prejudiced the defendant to the extent that a reversal is
necessary. State v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d 877 (2015). In deciding
whether an instruction was legally and factually appropriate, our review is unlimited.
State v. Louis, 305 Kan. 453, 457-58, 384 P.3d 1 (2016). Because Warren did not make a
specific objection on the record at the court's jury instruction conference, we apply the
clear error standard. Under this standard, we will reverse only if Warren can firmly
convince this court that the jury would have reached a different result without the error.
State v. Williams, 295 Kan. 506, 515, 286 P.3d 195 (2012).

As a reminder, the jury instruction at issue stated the following:

"In Count 5, the defendant is charged with unlawfully possessing a controlled
substance, namely methamphetamine, with intent to distribute. The defendant pleads not
guilty. To establish this charge, each of the following claims must be proved:
"1. The defendant possessed methamphetamine.
"2. The defendant did so with the intent to distribute the methamphetamine.
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"3. The quantity of methamphetamine possessed was at least 3.5 grams but less
than 10 grams.
"4. This act occurred on or about the 7th day of December, 2015, in Greenwood
County, Kansas.
"The term distribute as used in this instruction means the actual transfer of an
item from one person to another. Distribute includes sale, offer for sale, or any act that
causes an item to be transferred from one person to another.
"A defendant acts with intent when it is his desire or conscious objective to do
the act complained about by the State.
"If you find the defendant possessed 3.5 grams of methamphetamine, you may
infer that the defendant possessed with intent to distribute. You may consider the
inference along with all the other evidence in the case. You may accept or reject it in
determining whether the State has met the burden of proving the intent of the defendant.
This burden of proof never shifts to the defendant."

Warren does not claim this instruction was factually inappropriate. His sole claim
is that this instruction was not legally appropriate. Warren was charged under K.S.A.
2014 Supp. 21-5705. He argues that under this statute the jury was required to find that
he possessed the drugs and had the intent to distribute them in order to sustain a
conviction. He argues that the portion of the instruction that identifies the elements of the
crime and states "[t]he quantity of methamphetamine possessed was at least 3.5 grams
but less than 10 grams" should have stated "[t]he quantity of the methamphetamine
possessed with intent to distribute was at least 3.5 grams." (Emphasis added.)

In State v. Palmer, No. 110,624, 2015 WL 802733, at *4 (Kan. App. 2015)
(unpublished opinion), a panel of our court held:

"According to the plain language of K.S.A. 2014 Supp. 21-5705, the amount of
the controlled substance possessed is the relevant inquiry for conviction and sentencing
purposes. Contrary to [the defendant's] argument, the statute does not create a distinction
between the amount possessed and the amount intended to be distributed. Rather, the
severity level of the crime is based solely on the 'quantity of the material,' the 'number of
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dosage units,' or the 'number of plants cultivated.' K.S.A. 2014 Supp. 21-5705(d). The
statute makes no mention of the quantity of the material intended to be distributed."

The court further noted that because the defendant possessed more than 3.5 grams of
methamphetamine, under K.S.A. 2014 Supp. 21-5705(e)(2) there is an inference that the
defendant had the intent to distribute the drug and, therefore, the State had no burden to
prove the additional element of intent to distribute. 2015 WL 802733 at *4.

We find this language from Palmer to be persuasive. This jury instruction was
legally appropriate. As the court noted in Palmer, the plain language of K.S.A. 2014
Supp. 21-5705 focuses on the amount of the controlled substance possessed. Here, there
is no dispute that Warren possessed a total of more than 3.5 grams of methamphetamine.
Therefore, under K.S.A. 2014 Supp. 21-5705(e)(2) the jury could infer that Warren had
the intent to distribute.

Affirmed.