State Of Kan. v. Adams

Citation232 P.3d 347
Decision Date08 September 2010
Docket Number392.,No. 101,101
PartiesSTATE of Kansas, Appellee,v.Kenneth ADAMS, Appellant.
CourtCourt of Appeals of Kansas

COPYRIGHT MATERIAL OMITTED

[232 P.3d 842]

Syllabus by the Court

1. Generally, an appellate court reviews the trial court's decision on a motion to suppress using a bifurcated standard. Unless it is incredible, the trial court's findings are reviewed to determine whether they are supported by substantial competent evidence.

2. The ultimate legal conclusion regarding the suppression of evidence is reviewed using a de novo standard.

3. When the material facts in a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review.

4. The question of the sufficiency of a search warrant affidavit is decided under the standard of whether the evidence presented to the magistrate issuing the search warrant provided a substantial basis for determining whether probable cause existed.

5. Where a reviewing court has performed an evidentiary hearing to determine if a search warrant affidavit contains statements which are knowingly or intentionally misleading or made with reckless regard for the truth, findings of fact from the evidentiary hearing are to be upheld if supported by substantial competent evidence.

6. Generally, a search warrant is presumed valid, and the facts contained therein may not be disputed by the party against whom the warrant is directed. An exception to this rule exists where the party challenging the affidavit presents an offer of proof that the affidavit contains material statements of deliberate falsehood or made with reckless disregard for the truth.

7. If the reviewing court can set aside the challenged portions of a search warrant affidavit and still find sufficient

[232 P.3d 843]

evidence of probable cause, the court does not need to hold an evidentiary hearing to determine the sufficiency of the affidavit, including whether there were deliberate falsehoods or reckless disregard for the truth.

8 Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), is analyzed and applied.

9. Under the facts of this case, evidence of a defendant's crime of use of drugs to prove the contemporaneous crime of the manufacture of drugs was permissible, and a jury instruction to that effect was appropriate.

10. K.S.A. 2007 Supp. 65-4150(c) is analyzed and applied.

11. K.S.A. 21-4717(a)(1)(D) is analyzed and applied.

Meryl Carver-Allmond, of Kansas Appellate Defender Office, and Kenneth Duane Adams, appellant pro se, for appellant.

Clay Britton, assistant solicitor general, Julie A. Carrol, assistant attorney general, and Steve Six, attorney general, for appellee.

Before HILL, P.J., PIERRON, J., and BUKATY, S.J.

PIERRON, J.

Kenneth D. Adams appeals from his jury convictions for six counts relating to a conspiracy to manufacture methamphetamine and possession of methamphetamine. He claims error at various stages of the trial. He contends the trial court erred in denying his motion to suppress the search warrant. Adams also argues the jury was given an improper instruction with regard to testimony about prior drug use. He additionally claims the court erred in sentencing him for possession of lithium metal with the intent to manufacture a controlled substance instead of the lesser penalty provision of possession of drug paraphernalia with the intent to manufacture. Finally, Adams claims the court erred in sentencing him to a higher sentence without proving criminal history to a jury beyond a reasonable doubt. We affirm.

[232 P.3d 844]

On January 29, 2008, Police Chief Darren Konrade stopped a white pickup truck for failing to stop at a stop sign near Protection, Kansas. The driver was Rachel Nelson. Konrade suspected that Nelson was under the influence and conducted a field sobriety test that she failed. Konrade asked Nelson whether she was under the influence and she admitted to drinking alcohol and smoking methamphetamine. Konrade arrested and gave Miranda warnings to Nelson before continuing to question her.

Following Nelson's admission, Chief Konrade searched the truck. The search turned up a written list of several items used in the production of methamphetamine including Toluene, D batteries, lithium, starting fluid, and distilled water. Nelson admitted she had purchased Tolulene and D batteries in order to manufacture methamphetamine, but she claimed the methamphetamine was manufactured in Oklahoma. Nelson also indicated she was living in Protection.

After Konrade questioned Nelson, she admitted that several items related to the manufacture of methamphetamine might be found in her home. Konrade took Nelson to the police station and had her prepare a written statement. Another officer, Deputy Trent Allen, prepared an affidavit in support of a search warrant.

In the affidavit, Deputy Allen stated: “Based on my training and experience, I am familiar with how controlled substances are manufactured, obtained, diluted, packaged, distributed, sold and used.” Allen proceeded to describe various types of methamphetamine manufacture and the ingredients used in the process. The affidavit details using chemicals for precursors, reagents, solvents, and catalysts. Finally, in the probable cause portion of the affidavit, Allen wrote the following:

“Nelson failed standard field sobriety testing and was questioned about drug use, Nelson stated that she had purchased several methamphetamine precursors in Woodward Oklahoma yesterday January 28, 2008. She stated that the precursors that she had purchased were located at 107 W. Main in Protection, Kansas. Also Mrs. Nelson provided a voluntary written statement about these activities. Mrs. Nelson also stated that George Pitcherello was at her residence at 107 W Main in Protection and that he was the person responsible for the manufacture of the methamphetamine.”

[232 P.3d 845]

Police officers executed the signed search warrant on a trailer home at 107 West Main. During the execution of the search warrant, the officers saw three individuals standing by a parked car and a woman and a small child inside the car. Adams was one of the three individuals standing by the car.

Upon entering the residence, the officers smelled a strong chemical odor coming from a bottle setting in a skillet. There was also a haze throughout the kitchen area. The living room and kitchen opened into a hallway that led to different rooms. In one of the back rooms was a bedroom the officers suspected was being used for a methamphetamine lab. They found several pieces of what they suspected were paraphernalia being used to manufacture methamphetamine.

Following the initial execution of the search warrant, six suspects were detained. After reading Adams his Miranda rights, Deputy Allan questioned him. Adams made several statements that indicated he was familiar with pieces of paraphernalia being used in his house to manufacture methamphetamine.

Agents for the Kansas Bureau of Investigation (KBI) were called in to process the house as a possible methamphetamine lab. They performed a complete search of the home and processed a large number of items used in the manufacture of methamphetamine. Many of the items were sent for chemical analysis. Methamphetamine was detected in eight different samples. Additionally, chemical analysis detected chemicals used in the manufacture of methamphetamine.

The State charged Adams on six counts: (1) manufacture of methamphetamine, a level 1 drug felony, (2) conspiracy to manufacture methamphetamine, a level 1 nonperson felony, (3) possession of lithium metal with the intent to manufacture methamphetamine, a level 2 drug felony, (4) possession of drug paraphernalia to manufacture a controlled substance, a level 4 drug felony, (5) possession of methamphetamine, a level 4 drug felony, and (6) possession of drug paraphernalia to use a controlled substance, a class A nonperson misdemeanor.

On April 25, 2008, Adams filed a motion to suppress the search warrant. In his motion, he argued that while the affidavit stated

[232 P.3d 846]

Deputy Allen had knowledge of how methamphetamine was manufactured, Allen had no personal knowledge of the process of cooking methamphetamine. Adams argued that because Allen lacked personal knowledge, the affidavit was insufficient to enable the magistrate to make a determination that probable cause existed.

During its motions hearing, the trial court considered whether Deputy Allen's affidavit was valid. Following testimony by Chief Konrade, the trial court ruled that even absent the statements Adams claimed were problematic, the affidavit was still sufficient to support probable cause. The court then went further and found the affidavit contained no material misrepresentations or reckless disregard for the truth and the evidence found in the affidavit was sufficient grounds for a search warrant. The court denied Adams' motion to quash the warrant and suppress the evidence.

At jury trial, Nelson testified for the State and stated that she and Adams had used methamphetamine at the time of the investigation. Nelson also testified she and Adams had used various forms of paraphernalia to ingest the methamphetamine. Adams did not object to this testimony. Nelson then testified that Adams and Pitcherello had been partners in manufacturing methamphetamine. She also testified to some of the specific processes that they engaged in while manufacturing methamphetamine, including gassing, processing pseudoephedrine pills, and the use of anhydrous ammonia.

Two of the individuals at the residence during the execution of the search warrant, Tina Steinbarger and Charles Townsend, also testified at trial. Steinbarger testified that she, Townsend, and Pitcherello had driven together from Oklahoma to Adams' residence. Before arriving, she did not possess any methamphetamine. Steinbarger...

To continue reading

Request your trial
6 cases
  • State v. Snellings
    • United States
    • Kansas Supreme Court
    • 6 Abril 2012
    ...of any kind” in the statutory definition of “drug paraphernalia” under K.S.A. 2007 Supp. 65–4150(c). See, e.g., State v. Adams, 43 Kan.App.2d 842, 853–56, 232 P.3d 347 (2010), aff'd in part and rev'd in part (––– Kan. ––––, 273 P.3d 718 (2012), this day decided); State v. Terrill, No. 103,1......
  • Adams v. Shelton
    • United States
    • U.S. District Court — District of Kansas
    • 12 Marzo 2018
    ...Saiz v. Ortiz, 392 F.3d 1166, 1175 (10th Cir. 2004). 34. State v Adams, 273 P.3d 718 (Kan. 2012). 35. Id. at 721-22. 36. State v. Adams, 232 P.3d 347 (Kan. App. 2010). 37. State v. Adams, 273 P.3d 718, 728 (Kan. 2012). 38. Id. at 728-29. 39. Vol. 1 in Appellate Case No. 13-110850-A, 3-109. ......
  • State v. Adams
    • United States
    • Kansas Supreme Court
    • 6 Abril 2012
    ...In his direct appeal, Adams claimed error at various stages of the trial, but the Court of Appeals affirmed. See State v. Adams, 43 Kan.App.2d 842, 232 P.3d 347 (2010). Now on petition for review, Adams argues: (1) The trial court erred in denying his motion to suppress evidence obtained af......
  • Adams v. State
    • United States
    • Kansas Court of Appeals
    • 31 Octubre 2014
    ...He appealed both his sentence and conviction to this court, which affirmed the district court. See State v. Adams, 43 Kan.App.2d 842, 232 P.3d 347 (2010), aff'd in part, rev'd in part 294 Kan. 171, 273 P.3d 718 (2012). On further review before the Kansas Supreme Court, that court upheld Ada......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT