State v. Braun
| Citation | 209 Kan. 181,495 P.2d 1000 |
| Decision Date | 08 April 1972 |
| Docket Number | No. 46489,46489 |
| Parties | STATE of Kansas, Appellee, v. Stephen Stice BRAUN, Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. In the exercise of its police power a state may regulate the administration, sale, prescription, possession and use of narcotic drugs. Such regulation by a state can take a variety of valid forms.
2. The provisions of the Uniform Narcotic Drug Act (K.S.A. 65-2501 et seq.) which require the keeping of records of the sale of narcotic drugs in the form prescribed, which records must be open for inspection by law enforcement agencies, do not violate the constitutional privilege against self-incrimination under the Fifth Amendment to the United States Constitution.
3. The record is examined in a criminal action in which the defendant was convicted of possession of marijuana in violation of K.S.A. 65-2502 and it is held: The trial court did not err (1) In refusing to suppress evidence on the grounds that the affidavit for the search warrant was insufficient to show probable cause; (2) in refusing to compel the state to reveal the name of an informer; (3) in refusing to dismiss the information; (4) in permitting the state to reopen its case to introduce exhibits; (5) in overruling defendant's motion to discharge; (6) in failing to give requested instructions; and (7) in failing to admonish counsel for statements made in his summation.
John C. Humpage, of Humpage & Stewart, Topeka, argued the cause and was on the brief for appellant.
John Mike Elwell, County Atty., argued the cause, Vern Miller, Atty. Gen., and Ronald R. Kimzey, Asst. County Atty., were with him on the brief for appellee.
The appellant, Stephen Stice Braun, was convicted by a jury of possession of marijuana in violation of K.S.A. 65-2502. The prosecution followed the search of a residence in rural Douglas County, Kansas, on January 13, 1970. Entrance to the residence was gained pursuant to a search warrant issued by Judge Charles Rankin of the county court on January 12, 1970. The police officers searched a room of the house occupied by appellant. He was sleeping in the room at the time the search was conducted. As a result of the search the police officers found behind the bookcase on the west side of the room a green trash bag containing 30 wrapped packets of marijuana. When the search was made appellant's personal belongings were in the room including his clothing, a billfold containing appellant's identification and $400 in cash, books and letters. There was no evidence indicating that anyone other than the appellant occupied the room. Following the discovery of the marijuana appellant was placed under arrest for possession of marijuana in violation of K.S.A. 65-2502. The appellant entered his plea of not guilty to the charge. A series of pretrial motions were filed on behalf of the appellant including a motion to suppress the drugs discovered at the time of the search; a motion to compel the state to reveal the name of the informant upon whose information the original search warrant was issued; a motion to dismiss and abate the proceedings attacking the constitutionality of K.S.A. 65-2502; and a motion to dismiss the information because of the insufficiency of the complaint. All of these motions were overruled. The case was then tried to a jury.
At the trial the state presented the testimony of the law enforcement officers as to their activities in the search and the events that followed and in addition presented expert testimony identifying the contents of the 30 plastic packets found in appellant's room as marijuana. The state rested without offering into evidence the marijuana found in appellant's room. Appellant requested a recess before beginning his defense and during the recess moved for his discharge. The state immediately moved to reopen its case and introduce the two exhibits which it had failed to offer. The court allowed the state to reopen its case to introduce the two exhibits and overruled the appellant's motion for discharge. The appellant offered no evidence in his defense. The jury brought in a verdict of guilty of possession of marijuana as charged. The appellant filed motions for a new trial and for a directed verdict which motions were overruled. A timely appeal from the conviction was taken to this court.
The appellant raises a number of points on this appeal which will be considered in order. The appellant's contention in his first point is that the trial court was in error in overruling appellant's motion to suppress all of the evidence seized in the search of the residence on January 13, 1970. The appellant in essence attacks the sufficiency of the affidavit upon which the search warrant was issued by Judge Rankin on the basis of the affidavit of Ronald A. Hanson, a special agent of the Federal Bureau of Narcotics and Dangerous Drugs. This affidavit in its entirety was as follows:
'COMPLAINT FOR SEARCH WARRANT
'STATE OF KANSAS, DOUGLAS COUNTY, ss:
'Ronald Hanson, being first duly sworn upon his oath, deposes and says:
'That he has just and reasonable grounds to believe, and does believe, that there is certain contraband or property which constitutes or may be considered a part of the fruits, instrumentalities or evidence of a crime under the laws of this state, any other state, or of the United States of America, located in or upon property described as: the house and surrounding outbuildings located .6 mile south of Highway K-10 on Eisele Road with a post office address of Route 2, Box 227, Lawrence, Douglas County, Kansas.
The said contraband or property is described as: a quantity of marihuana and a quantity of hashish, a derivative of marihuana.
'/s/ Ronald A. Hanson
'Subscribed and sworn to before me this 12th day of January, 1970.
'/s/ Charles C. Rankin
'County Judge'
The appellant contends that the affidavit was insufficient for several reasons. Appellant first argues that the informant was an agent of the Federal Bureau of Narcotics and Dangerous Drugs who may have acted illegally in obtaining the information mentioned in the affidavit for the search warrant. There is no evidence in the record that the informant obtained his information illegally. Evidence obtained by law enforcement officers using the subterfuge of hiding their identity in order to pose as members of the general public has consistently been held to be admissible. United States v. Bush, 283 F.2d 51 (6th Cir. 1960); State v. Seven Slot Machines, 203 Kan. 833, 457 P.2d 97. There is no evidence whatsoever that the informant posed as anything other than a member of the general public. The appellant does not allege that anyone broke into his residence or entered it without permission. Appellant simply makes the unsupported statement that the informant conducted an unreasonable search. We hold this contention to be without merit.
The appellant next contends that the affidavit for the search warrant was insufficient because it was based upon the hearsay testimony of an informant and did not meet the standards as set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. Those cases require that the affidavit for the search warrant must set forth facts sufficient to establish the reliability of the unidentified informant and the underlying circumstances from which it could be concluded that the informer had reliable information that the accused was engaged in criminal activity. These same general standards are recognized in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, and by our own cases such as State v. Hart, 200 Kan. 153, 434 P.2d 999, and State v. Seven Slot Machines, supra. These cases emphasize that it is essential to the validity of a search warrant that the issuing magistrate be provided with sufficient facts to enable him to make an intelligent and independent judgment that probable cause for its issuance exists.
Each case must be decided on its own merits. When we turn to the specific affidavit for a search warrant involved in the case at bar we have no hesitancy in upholding its sufficiency. The affidavit states unequivocally not only that the informant is reliable but that the reason the affiant knows the informant to be reliable is that for over one and one-half years the informant has supplied...
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