343 P.3d 562 (Kan.App. 2015), 111,390, State v. Chambers

JudgeBefore MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
PartiesSTATE of KANSAS, Appellee, v. GREGORY PAUL CHAMBERS, Appellant
Citation343 P.3d 562
Date27 February 2015
CourtKansas Court of Appeals
Docket Number111,390

Page 562

343 P.3d 562 (Kan.App. 2015)

STATE of KANSAS, Appellee,

v.

GREGORY PAUL CHAMBERS, Appellant

No. 111,390

Court of Appeals of Kansas

February 27, 2015

Editorial Note:

This decision has been designated as "not for publication" in the Pacific Reporter, it is published in table format. See KS R S AND A CTS RULE 7.04

Appeal from Riley District Court; DAVID L. STUTZMAN, judge.

Bobby J. Hiebert, Jr., of Law Offices of Bobby J. Hiebert, Jr., of Salina, for appellant.

James W. Garrison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.

MEMORANDUM OPINION

Bruns, J.

Gregory Chambers appeals his convictions for possession and cultivation of marijuana. On appeal, Chambers contends that the district court erred in partially denying his motion to suppress evidence. In support of this contention, Chambers argues that the affidavit used to obtain the search warrant that led to the seizure of cultivation evidence was not reliable in that it contained stale information. Next, Chambers contends that the district court erred in refusing to allow his attorney to argue jury nullification during his closing argument. Because we find neither of these contentions to be meritorious, we affirm Chambers' convictions.

Facts

On February 5, 2013, two Riley County police officers, Michael Dunn and Trevor Wilkey, were patrolling on their bikes in Manhattan, Kansas. Around 8:30 p.m., the officers smelled a " very strong" marijuana odor coming from a house at 502 Freemont Street. According to Officer Dunn, he believed the odor came from a combination of fresh, raw, and burnt marijuana.

The officers investigated the smell by walking up to the front porch of the house. As they did so, they could see through the window blinds that the house lights were on and that people were moving around in the front room. Before the officers could knock on the front door, a woman and a child left the house. The woman did not shut the door behind her, and it remained open as she walked away with the child. According to the officers, the odor of marijuana grew stronger with the front door open.

Looking into the house through the open doorway, the officers could see Adam Hudson sitting on a couch. The officers observed a glass smoking device and a clear baggy containing what they thought was marijuana sitting on a table in front of the couch. When Hudson saw the officers looking through the doorway, he tried to close the front door. But Officer Dunn stuck his foot in between the door and the frame to prevent it from closing.

Officer Dunn asked Hudson to come outside, but he refused to do so. The officer then opened the door the rest of the way and entered the residence. Hudson told the officers they could not come in the house without a warrant. However, Officer Dunn told Hudson he did not need a warrant to enter because he could see a bag of marijuana sitting in plain view on the table. At that point, Officer Dunn arrested Hudson and placed him in handcuffs.

While he was being arrested, Hudson called out to his roommate, Chambers, the defendant in this case. Hudson told Officer Dunn that Chambers was upstairs. Officer Wilkey then took control of Hudson while Officer Dunn searched the residence, announcing that police were present. In response to Officer Dunn's announcement, Chambers came downstairs.

Officer Dunn asked Chambers if anyone else was in the house, and he said no. Chambers held no weapons and did not appear to pose a threat to the officers. Officer Dunn then went upstairs to ensure that no one else was inside the house. In Chambers' room, Dunn saw at least 10 potted marijuana plants.

Officer Dunn took Chambers outside of the house, and Office Wilkey handcuffed him. After he was advised of his Miranda rights, Officer Dunn asked Chambers if he had any other illegal drugs in the house. According to Officer Dunn, Chambers said that he did not know of any other drugs in the house but indicated that the officers could search the house. Chambers and Hudson were then transported to the Riley County Police Department for interrogation.

Officer Dunn called the Special Investigations Unit for assistance. Detective Bobby Dierks responded, and he discussed with Officer Dunn the possibility of obtaining a search warrant for the residence. Unbeknownst to Officer Dunn and Officer Wilkey, the Special Investigations Unit had information from August and September 2012 that Hudson and Chambers may have been selling drugs and growing marijuana at 502 Freemont Street. In fact, Detective Dierks had a running search warrant affidavit going on the residence, which included an observation that Hudson's vehicle had been involved in a suspected drug transaction in August 2012, information that trash from the home had tested positive for marijuana in September 2012, and tips from concerned citizens about special lights, tarps, and plants in the basement that the citizen thought were part of a marijuana-growing operation.

Officer Wilkey remained at the house until the officers secured a warrant from a district judge at 11:15 p.m. When law enforcement officers executed the search warrant, they discovered marijuana that had been harvested and prepared for smoking as well as an extensive marijuana-growing operation--with more than 100 plants--on the second floor and in the basement.

The State initially charged Chambers with one count of cultivating a controlled substance and one count of possessing a controlled substance with the intent to distribute. The State later amended the complaint to include a charge of possession of a controlled substance with the intent to distribute it within 1000 feet of a school.

Before trial, Chambers moved to suppress all of the evidence obtained on February 5, 2013. Specifically, Chambers argued that the evidence was seized as a result of an unlawful arrest and an unlawful search. According to Chambers, the officers engaged in unlawful conduct at various points throughout the evening of February 5, 2013: (1) when the officers peered through the open front door; (2) when Officer Dunn entered the house without a warrant and without consent to arrest Hudson; (3) when Officer Dunn arrested both Chambers and Hudson; (4) when Officer Dunn conducted a " security sweep" of Chambers' room; (5) when the officers sought to obtain a search warrant using information that was tainted; and (6) when the officers included stale information in the affidavit they used to obtain a search warrant for Chambers' residence.

Following a suppression hearing, the district court granted in part and denied in part Chambers' motion. First, the district court held that Officers Dunn and Wilkey lawfully looked through the door of the house that was left open. In particular, the district court noted that the officers saw marijuana and paraphernalia in plain view on a table simply by looking through the open front room. Second, the district court held that the officers were not permitted to enter the house without a warrant because--while they had probable cause to believe a crime was being committed (possession of marijuana)--there were not exigent circumstances present. Thus, the district court concluded that the entry into the house without a warrant was unlawful.

Nevertheless, the district court found that even if the information in the affidavit obtained unlawfully were excluded, the affidavit used to obtain a search warrant was still sufficient based on the information previously collected by the Special Investigations Unit and the information legally gleaned by Officers Dunn and Wilkey when they looked through the open front door. Accordingly, the district court found that there was sufficient probable cause for the issuance of the search warrant and, therefore, that the State could present the evidence seized during the execution of the search warrant at trial.

At trial, Chambers' attorney admitted in his opening statement that his client had been growing marijuana at his home. But the attorney stated that Chambers had not been growing marijuana for distribution, as the State contended, but was actually growing it for his personal use. Specifically, Chambers' attorney claimed that his client was growing the marijuana for medical purposes to self-treat knee, hip, and shoulder injuries--some of which were sustained during Chambers' service in the United States Navy. According to Chambers' attorney, his client grew so many marijuana plants because it takes large quantities to make only a small of amount of the hashish he needed for medicinal purposes.

Chambers, testifying in his own defense, discussed his background in the military and how he injured two ligaments in his left leg 25 years ago. In addition, he testified that he was subsequently attacked and that the altercation resulted in a tear to his rotator cuff as well as to two popliteal ligaments in his legs. According to Chambers, he continues to suffer from arthritis in his hips. Moreover, Chambers testified that pharmaceutical pain medications did not work for him because they prevented him from functioning normally. Not only did the marijuana work better than prescription drugs, Chambers suggested that it was more affordable in light of the fact that he had no health insurance.

At the close of evidence and outside the presence of the jury, the district court considered a request by Chambers' attorney to argue jury nullification during his closing argument. In response, the State contended that it would be inappropriate to allow Chambers to argue to the jury that it had a right to disregard instructions of law. After researching the issue, the district court cited to State v. Naputi, 293 Kan. 55, 66, 260 P.3d 86 (2011), in finding that it would be " inalterably inconsistent" to instruct the jury on the...

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