State v. Brooks
| Decision Date | 13 August 2021 |
| Docket Number | 538,120 |
| Court | Kansas Court of Appeals |
| Parties | State of Kansas, Appellee, v. Byron Alexander Brooks, Appellant. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Leavenworth District Court; Gunnar A. Sundby, judge.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Joan Lowdon, deputy county attorney, Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Buser, P.J., Atcheson, J., and Burgess, S.J.
The tragic death of Byron Brooks' four-month-old son prompted a police investigation including a search of the apartment where they were staying. Officers found cocaine, a digital scale, and other paraphernalia in the residence. As a result the State charged Brooks with various drug offenses. A jury sitting in Leavenworth County District Court found Brooks guilty of possession of cocaine with the intent to distribute within 1, 000 feet of a school, possession of drug paraphernalia, and no drug tax stamps. We reverse the distribution conviction because the State failed to prove a school satisfying the statutory definition could be found within the required distance. And we remand to the district court with directions to find Brooks guilty of the lesser included crime of possessing cocaine with the intent to distribute and resentence him accordingly. We otherwise affirm the convictions and sentences.
Brooks and his son were staying at an apartment Ciera Williams leased. She and Brooks were in an intimate relationship although she was not the child's mother. Brooks apparently resided with Williams much, though not all, of the time. During the day on March 25, 2017, Williams laid the infant down in the bed where Brooks was sleeping. Brooks had taken Percocet, a prescription narcotic, and was stuporous. He apparently rolled over on the baby without awakening. Williams returned to the bedroom and realized the child was not breathing and in grave distress. Another adult at the apartment called 911.
First responders, including law enforcement officers, arrived promptly. Despite being transported to an area hospital, the infant had fatal injuries and was pronounced dead. The first responders had a difficult time awakening Brooks and learned from Williams he had taken the narcotic before going to bed. Given the circumstances, the law enforcement officers asked for permission to search the apartment. Both Williams and Brooks declined the request.
The officers quickly applied for and received a search warrant for the apartment from the district court. The search warrant identified the crime being investigated as aggravated child endangerment, a violation of K.S.A. 2016 Supp. 21-5601, and the items to be seized as:
Armed with the warrant, the officers searched the apartment. In the bedroom, they found a Crown Royal bag on the floor underneath some blankets. The bag contained a prescription pill container labeled for Brooks, $125 in cash, a cigarette lighter, a straw, and a digital scale. Both the straw and the scale had white powdery residue on them. In the pill bottle, the officers found two plastic sandwich bags; one held about 21 grams of cocaine, and the other held about 30 grams of cocaine. In a purse in the bedroom closet, the officers found another pill container with Brooks' name that had a plastic bag with just under 5 grams of cocaine in it. Under the sink in a bathroom, the offices discovered a credit card in Williams' name, a plate, and a straw-all of which appeared to have drug residue on them. The officers could find no drug tax stamps. See K.S.A. 79-5201 et seq. (requiring purchase of tax stamps for various illegal drugs including cocaine and criminalizing the failure to obtain tax stamps). The cocaine and those items formed the basis of the criminal charges filed against Brooks in this case.
In the bedroom, the officers found identification belonging to Brooks and mail sent to him at another address. Clothing and other personal items belonging to Williams or Brooks were in various places in the apartment. They also found a purse in the bedroom that contained marijuana and identification belonging to Williams.
Jurors heard the case over two days in mid-February 2018. As we indicated, the jury convicted Brooks of possessing cocaine with the intent to distribute within 1, 000 feet of a school, a severity level 2 drug felony; possession of drug paraphernalia for the digital scale, a severity level 5 drug felony; and no tax stamps, a severity level 10 nonperson felony under K.S.A. 79-5208. The jury found Brooks not guilty of one count of misdemeanor possession of drug paraphernalia based on the plate, straw, and credit card. The district court later ordered Brooks to serve 117 months in prison on the cocaine possession conviction, reflecting a mitigated guidelines sentence, imposed concurrent sentences on the other convictions, and placed him on postrelease supervision for 36 months. Brooks has appealed.
Brooks has raised an array of issues on appeal. We take up the points serially, adding facts as necessary for each.
Brooks has appealed the district court's denial of his pretrial motion to suppress the evidence the law enforcement officers found in the apartment-specifically the cocaine and the drug paraphernalia. He contends the application and the search warrant failed to establish probable cause that a crime had been committed and the warrant failed to describe the items to be seized with sufficient particularity. According to Brooks, the search, therefore, violated his rights protected in the Fourth Amendment to the United States Constitution and the evidence seized should not have been used against him under the exclusionary rule. See United States v Leon, 468 U.S. 897, 908-09, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (); State v. Ellis, 311 Kan 925, 933-34, 469 P.3d 65 (2020) ().
At the suppression hearing, the district court reviewed the application and the warrant but received no other evidence. The prosecutor and Brooks' lawyer argued their respective legal positions on the constitutional sufficiency of the search. In reviewing a district court's decision to sign a search warrant, we-like the district court hearing the motion to suppress-ask whether the information properly submitted in support of the warrant established a "substantial basis" for its issuance. The standard is purposefully deferential to the district court's decision to approve the warrant, thereby encouraging law enforcement officers to seek search warrants in the first place. See State v. Mullen, 304 Kan. 347, 353, 371 P.3d 905 (2016).
To obtain a search warrant, government agents must present a judge with an affidavit or other sworn statements demonstrating probable cause that a crime has occurred and that specifically described evidence related to the crime may be found in a particular place. See Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (); Zurcher v. Stanford Daily, 436 U.S. 547, 554, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (); State v. Hicks, 282 Kan. 599, 605-08, 147 P.3d 1076 (2006) (both). Probable cause is a somewhat elastic measure of proof requiring sufficient evidence to cause a person of reasonable prudence to believe a stated proposition to be stronger than a suspicion but not so strong that it must be more probably true than not true. See Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); State v. Beltran, 48 Kan. 857, 864-65, 300 P.3d 92 (2013). The search warrant, in turn, must describe with particularity the place to be searched and the items that may be seized from that place. Groh v. Ramirez, 540 U.S. 551, 557-58, 124 S.Ct. 1284, 157 L.Ed. 1068 (2004); State v. Kleypas, 305 Kan. 224, 246, 382 P.3d 373 (2016).
Here, law enforcement officers applied for and received the search warrant the same day Brooks' son died and sought to investigate that death as possible aggravated endangerment of a child. We presume the principal suspect was Williams, since she apparently told officers that she was aware Brooks had taken a powerful prescription narcotic before going to sleep and, nonetheless, placed the infant in the same bed with him. The affidavit submitted as part of the warrant request outlines those circumstances, although it implies Williams knew Brooks had taken Percocet. As defined in K.S.A. 2020 Supp. 21-5601(b)(1), aggravated engagement of a child includes recklessly placing a minor child "in a situation in which the child's life, body or health is endangered." Recklessness is a statutorily defined mental state evincing "conscious[ ] disregard[ ] [of] a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." K.S.A. 2020 Supp. 21-5202(j).
Probable cause to show a crime has been committed does not require evidence touching on every element of the offense. Hicks, 282 Kan. at 605. The circumstances briefly described in the affidavit showed Williams placed the infant in a foreseeably...
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