State v. Bockert

• Decision Date: 21 April 1995
• Docket Number: No. 71227,71227
• Citation: 893 P.2d 832,257 Kan. 488
• Parties: STATE of Kansas, Appellant, v. Steven BOCKERT, Appellee.
• Court: Kansas Supreme Court

Page 832

893 P.2d 832

257 Kan. 488

STATE of Kansas, Appellant, v. Steven BOCKERT, Appellee.

No. 71227.

Supreme Court of Kansas.

April 21, 1995.

Syllabus by the Court

1. In an appeal by the prosecution from a magistrate's order at the preliminary examination that discharges a defendant for lack of probable cause, this court follows the same standard for weighing the evidence as does the magistrate.

2. The evidence at a preliminary examination need not prove guilt beyond a reasonable doubt, only probable cause. In order to prove probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.

3. The term "probable cause" is defined to mean a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that the accused is guilty of the offense with which he or she is charged.

4. It is not the function of the magistrate at a preliminary examination to determine the wisdom of the prosecuting attorney's decision to file and pursue the charges against a defendant or to conclude there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent.

Bryan M. Hastert, Asst. County Atty., argued the cause, and Dan Dunbar, Deputy County Atty., Lawrence M. Wright, County Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for appellant.

Julie A. Gorenc, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief for appellee.

LOCKETT, Justice:

The State appeals the district court's dismissal of a complaint charging three felony drug violations against Steven Bockert for lack of probable cause following a preliminary examination. This court has jurisdiction pursuant to K.S.A.1993 Supp. 22-3602(b)(1).

On October 4, 1993, Kansas Highway Patrol Troopers Brian Smith and Richard Jimerson stopped an automobile for speeding on Interstate 35 in Franklin County, Kansas. Steven Bockert was a passenger in the vehicle driven by Steven Howell. After Howell was issued a warning for no driver's license and speeding, he consented to a search of the vehicle. Upon opening the trunk, the troopers discovered a bundle containing approximately 10 pounds of marijuana. Howell and Bockert were charged with possession of marijuana with the intent to distribute, a severity level 3 drug felony in violation of K.S.A.1993 Supp. 65-4127b(b)(3); conspiracy to distribute marijuana, a severity level 3 drug felony in violation of K.S.A.1993 Supp. 65-4127b(b)(3) and K.S.A.1993 Supp. 21-3302; and failing to pay tax on marijuana and controlled substances, an unclassified felony in violation of K.S.A. 79-5208.

At the preliminary examination before a district magistrate, the only witness was Trooper Smith. Trooper Smith stated that after the vehicle was pulled over, he approached the passenger side of the vehicle and observed the occupants while Trooper Jimerson approached the driver's side to speak to Howell. Trooper Jimerson asked the driver, Howell, to get out of the vehicle with his driver's license. Howell exited the vehicle but did not have a driver's license on his person. Trooper Jimerson took Howell to the patrol car to determine his identity. Bockert remained in the passenger seat of the vehicle. Howell told Trooper Jimerson his name was "Steve."

In an effort to determine the identity of the driver, Trooper Smith asked Bockert who the driver was, where he and Bockert had been, and what they were doing. Bockert told Trooper Smith that he had known Howell for five years, that Steven Howell's name was "Lonnie," and implied that they were traveling a short distance. Bockert looked straight ahead and avoided eye contact with Trooper Smith.

Trooper Smith made several trips between the patrol car and the stopped vehicle to question Bockert as to Howell's identity. On one occasion Trooper Smith opened the passenger door to speak to Bockert and surveyed the interior of the car. During the conversation with the defendant, Trooper Smith observed approximately five keys hanging from the key ring in the ignition. One of the keys appeared to be the car's trunk key because of its distinctive shape and the make of the vehicle. While observing the interior of the vehicle, the trooper noted that there was nothing on the floor between the passenger seat and the passenger door.

After Howell consented to a search of the vehicle, the officers discovered that the key to the trunk of the car was not on the key ring. Trooper Smith located a trunk key on the floor of the vehicle between the passenger door and passenger seat where Bockert had been seated. The key had not been on the floor when Trooper Smith had opened the door initially. The troopers used that key to open the vehicle's trunk. In the trunk of the vehicle the officers discovered the bundle containing approximately 10 pounds of marijuana.

At the conclusion of Trooper Smith's testimony, defense counsel moved to dismiss the charges for lack of evidence. Defense counsel pointed out that Bockert was not in possession of the vehicle, that Bockert had no ownership interest in the vehicle, and that none of Bockert's possessions were in the trunk. Defense counsel argued that the State had failed to show a connection between Bockert and the marijuana. The magistrate denied the motion to dismiss, found it appeared a crime had been committed, and found probable cause to believe that Bockert had committed the crimes charged. Bockert was bound over for arraignment.

Bockert filed a motion to dismiss. At the hearing on Bockert's motion before the district judge, defense counsel argued that Bockert's removal of the trunk key from the key ring and his reference to Howell as "Lonnie" provided insufficient evidence to support a finding of probable cause that Bockert had committed the crimes charged. The prosecutor responded that he intended to introduce at trial a videotape taken from the patrol car which indicated Bockert made "an affirmative motion towards the key ring" while he was alone in the vehicle. The prosecutor argued that Bockert's motion toward the key ring, the later recovery of the key next to Bockert's seat, and the fact that Howell and Bockert were on a lengthy interstate trip as opposed to travelling across town provided sufficient circumstantial evidence upon which to base a finding of probable cause that defendant committed the crimes charged. The district judge granted Bockert's motion to dismiss, stating: "I've read this transcript [of the preliminary examination] several times, and the only thing I can find is a reasonable suspicion, not a probable cause." The State appealed.

The State claims that the district court erred in finding that the evidence was insufficient to find probable cause to bind Bockert over for arraignment. The State points to comments by the district judge and contends that the judge applied the wrong standard for weighing evidence at the preliminary examination and erroneously concluded that the officer's testimony was insufficient to show probable cause.

Every person arrested on a warrant charging a felony or served with a summons charging a felony shall have a right to a preliminary examination before a magistrate. K.S.A.1993 Supp. 22-2902(1). If from the evidence it appears that a felony has been committed and there is probable cause to believe that a felony has been committed by the defendant, the magistrate shall order the defendant bound over to the district judge having jurisdiction to try the case; otherwise, the magistrate shall discharge the defendant. K.S.A.1993 Supp. 22-2902(3).

The preliminary examination is an important part of Kansas criminal procedure. In addition to preserving the testimony of witnesses, it is protection for an accused and an instrument for justice. It apprises the person arrested as a result of a complaint of the nature of the crime charged and the sort of evidence he or she will be required to meet when subjected to final prosecution, and it affords the accused an opportunity to challenge the existence of probable cause for further detention or for requiring bail. State v. Boone, 218 Kan. 482, 485, 543 P.2d 945 (1975), cert. denied 425 U.S. 915, 96 S.Ct. 1515, 47 L.Ed.2d 767, reh. denied 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976).

An appeal from an order dismissing a complaint may be taken by the prosecution. K.S.A.1993 Supp. 22-3602(b)(1). In appeals by the prosecution from an order discharging the defendant for lack of probable cause, the reviewing court follows the same standard for weighing the evidence as the magistrate in the preliminary examination. State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). The evidence at a preliminary examination need not prove guilt beyond a reasonable doubt, only probable cause. State v. Sherry, 233 Kan. at 935, 667 P.2d 367. In order to prove probable cause, there must be evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt. State v. Green, 237 Kan. 146, Syl. p 3, 697 P.2d 1305 (1985). The term "probable cause" is defined to mean a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that the accused is guilty of the offense with which he or she is charged. State v....