State v. Adams

• Decision Date: 06 April 2012
• Docket Number: No. 101,392.,101,392.
• Citation: 273 P.3d 718
• Parties: STATE of Kansas, Appellee, v. Kenneth D. ADAMS, Appellant.
• Court: Kansas Supreme Court

273 P.3d 718

STATE of Kansas, Appellee,

v.Kenneth D. ADAMS, Appellant.

No. 101,392.

Supreme Court of Kansas.

April 6, 2012.

Syllabus by the Court

1. An affidavit in support of a search warrant is presumed valid, and in most cases, the facts contained therein may not be disputed by the party against whom the warrant is directed. There is a limited exception if the requirements of Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), are met.

2. Under the exception recognized in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), an evidentiary hearing is required if a defendant shows by a sworn allegation that an affidavit in support of a search warrant is unreliable in that it: (1) contains statements that are material to the issuance of the search warrant because the statements were necessary to find probable cause and (2) the affiant (a) deliberately omitted a material fact, (b) deliberately made a false statement of material fact, or (c) made a statement of material fact with reckless disregard for the truth.

3. In determining if the first prong of the Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), test has been satisfied, the trial court should set aside or excise all challenged portions of an affidavit in support of a search warrant and consider whether remaining portions of the affidavit provide sufficient evidence of probable cause. If probable cause can be found without the excised statements, no evidentiary hearing is required. On the other hand, if there is not sufficient content in the remaining portion of the warrant affidavit to support a finding of probable cause, the defendant is entitled to an evidentiary hearing to establish that the affiant deliberately omitted a material fact, deliberately made a false statement, or made a statement with reckless disregard for the truth.

4. If a trial court conducting a Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), analysis determines there is probable cause for the issuance of a search warrant without consideration of challenged portions of an affidavit, an appellate court will review that determination under the same deferential standard that applies in other appeals where the affidavit in support of a search warrant is challenged. Under that standard, the task of the reviewing court is to determine if the affidavit provided a substantial basis for the magistrate's determination that there was a fair probability that evidence of a crime would be found in the place to be searched.

5. It is not error to use PIK Crim.3d 67.13–D to inform a jury that a defendant's use of drugs is a factor the jury may consider in determining whether the defendant knowingly possessed a controlled substance when the evidence at trial is limited to the defendant's use of controlled substances on the same occasion as the one when the drugs were allegedly in the defendant's possession.

6. Use of prior convictions in a criminal defendant's criminal history score to enhance the defendant's sentence without requiring the history to be included in the complaint and proved to a jury beyond a reasonable doubt does not violate the defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

7. Under the principles that govern the identical offense sentencing doctrine, the elements of the offense of possession of lithium metal with intent to manufacture a controlled substance as defined in K.S.A. 2007 Supp. 65–7006(a), a severity level 2 drug felony, are identical to the elements of the offense of possession of drug paraphernalia with intent to manufacture a controlled substance as defined in K.S.A. 2007 Supp. 65–4152(a)(3), a severity level 4 drug felony. Meryl Carver–Allmond, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant and Kenneth D. Adams, appellant pro se, was on a supplemental brief.

Natalie A. Chalmers, assistant attorney general, argued the cause, and Clay Britton, assistant solicitor general, and Julie A. Carroll, assistant attorney general, of Kansas Bureau of Investigation, of Great Bend, were on the brief for appellee.

The opinion of the court was delivered by LUCKERT, J.:

Defendant Kenneth D. Adams was convicted by a jury of six counts relating to a conspiracy to manufacture methamphetamine and possession of methamphetamine. 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 after execution of a search warrant; (2) the jury was given an improper instruction with regard to testimony about prior drug use; (3) the court erred in using his criminal history to enhance his sentence; and (4) under the identical offense sentencing doctrine, the court erred in classifying his offense of possession of lithium metal with the intent to manufacture a controlled substance (K.S.A. 2007 Supp. 65–7006[a] ) as a severity level 2 drug felony.

We reject Adams' arguments on the first three issues but grant relief on the last issue, vacating his sentence for possession of lithium metal with intent to manufacture a controlled substance and remanding for resentencing as a severity level 4 drug felony.

Facts and Procedural Background

Adams was arrested following an investigation that began with a routine traffic stop of Adams' housemate, Rachel Nelson. Nelson was stopped in Protection, Kansas, after Police Chief Darren Konrade saw her run a stop sign. Nelson appeared to be intoxicated, so Konrade conducted field sobriety tests. Nelson failed the tests and admitted to drinking alcohol and smoking methamphetamine. Konrade arrested Nelson and advised her of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966).

Konrade searched the pickup truck Nelson was driving and Nelson's purse. In the purse, he found a handwritten list of several items that he recognized were commonly used in the manufacture of methamphetamine: toluene, D batteries, lithium, starting fluid, and distilled water. Nelson admitted she had purchased some of these items with the purpose of manufacturing methamphetamine. She claimed the manufacturing process was done in Oklahoma, although she indicated that she lived in Protection with “Kenny Adams.” After further questioning, Nelson admitted some of the items had been purchased the previous day and were at her home in Protection. Nelson was taken to the police station where she completed a written statement. In that statement, she provided additional details regarding her involvement in methamphetamine manufacturing and implicated George Pitcherello as the person responsible for manufacturing the methamphetamine.

Less than 3 hours after the initial traffic stop, law enforcement officers executed a search warrant on Nelson's home in Protection. On arrival at the home, officers saw three individuals standing by a parked car and a woman and a small child sitting inside the car. Adams was one of the three individuals standing by the car.

While outside the home, officers could smell odors they associated with methamphetamine manufacturing, and, upon entering the home, the officers observed a haze throughout the kitchen area and traced the strong chemical odor to a bottle sitting in a skillet. Officers found a bedroom they suspected was being used for a methamphetamine lab and noticed several items commonly used in the manufacture of methamphetamine. The officers then called in agents for the Kansas Bureau of Investigation (KBI) to process a possible methamphetamine lab.

At that point, the officers detained several suspects, including Adams. Adams was given a recitation of his Miranda rights, after which Adams made several statements that indicated he was familiar with the pieces of paraphernalia being used in his house to manufacture methamphetamine and with the manufacturing process.

The KBI agents performed a complete search of the home and processed a large number of items used in the manufacture of methamphetamine. After these items were tested, methamphetamine was detected in at least eight different samples of liquids, powders, and other substances taken from the scene. Methamphetamine only was detected in at least four samples, while other samples contained a mix of methamphetamine and one or more of the following products: pseudoephedrine, toluene, and ethyl ether. Other samples did not test positive for methamphetamine but contained various chemicals either used during methamphetamine manufacturing or produced naturally by the process, including lithium metal, ammonia, ethanol, methanol, ethyl ether, hydrochloric acid, toluene, sodium chloride, and sulfuric acid.

The State charged Adams with six counts: (1) manufacture of methamphetamine in violation of K.S.A. 2007 Supp. 65–4159(a), a severity level 1 drug felony, or alternatively, attempted manufacture of methamphetamine, see K.S.A. 21–3301; (2) conspiracy to manufacture methamphetamine in violation of K.S.A. 21–3302(a) and K.S.A. 2007 Supp. 65–4159(a), a severity level 1 drug felony; (3) possession of lithium metal with the intent to manufacture methamphetamine in violation of K.S.A. 2007 Supp. 65–7006(a), a severity level 2 drug felony; (4) possession of drug paraphernalia with intent to manufacture a controlled substance in violation of K.S.A. 2007 Supp. 65–4152(a)(3), a severity level 4 drug felony; (5) possession of methamphetamine in violation of K.S.A. 2007 Supp. 65–4160(a), a severity level 4 drug felony; and (6) possession of drug paraphernalia in violation of K.S.A. 2007 Supp. 65–4152(a)(2), a class A nonperson misdemeanor.

After his preliminary hearing but before trial, Adams filed a motion...