State v. Crudo
| Decision Date | 02 September 2022 |
| Docket Number | 123,559 |
| Citation | 517 P.3d 857 |
| Parties | STATE of Kansas, Appellee, v. Frank Raymond CRUDO, Appellant. |
| Court | Kansas Court of Appeals |
517 P.3d 857
STATE of Kansas, Appellee,
v.
Frank Raymond CRUDO, Appellant.
No. 123,559
Court of Appeals of Kansas.
Opinion filed September 2, 2022.
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Tony Cruz, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before Cline, P.J., Isherwood and Hurst, JJ.
Cline, J.:
Frank Raymond Crudo appeals the district court's (1) denial of his motion to suppress, (2) admission of alleged expert testimony by one officer which he contends should have been disclosed under K.S.A. 60-456(b), (3) jury instruction stating the jury could infer an intent to distribute based on the amount of drugs found in the camper, and (4) denial of his motion to vacate based on double jeopardy violations. He also seeks reversal of his possession of marijuana conviction on double jeopardy grounds.
After carefully reviewing the record, we find no error and affirm.
FACTS
In January 2014, Frank Raymond Crudo's pickup truck and attached fifth-wheel camper were stopped for a traffic infraction. Officers searched the pickup after the officer who approached it smelled a strong odor of raw marijuana when the window was rolled down. They found a small piece of marijuana inside the pickup and then searched the camper, where they found 19 vacuum-sealed bags of marijuana underneath the bathtub and a small amount of marijuana (along with rolling paper and a grinder) under the stairs.
The State charged Crudo with: (1) possession of marijuana with intent to distribute in violation of K.S.A. 2013 Supp. 21-5705(a)(4) and (a)(7), a drug severity level 2, nonperson felony; (2) no drug tax stamp in violation of K.S.A. 79-5204(a) and 79-5208, a severity level 10, nonperson felony; (3) possession of marijuana in violation of K.S.A. 2013 Supp. 21-5706(b)(3) and/or (b)(7), a class A nonperson misdemeanor; and (4) conspiracy to possess marijuana with the intent to distribute in violation of K.S.A. 2013 Supp. 21-5302(a), a severity level 2, nonperson felony.
Motion to Suppress
Crudo was initially successful in suppressing the marijuana discovered in the camper. But after the State filed an interlocutory appeal, a panel of this court reversed and remanded the case for a new hearing on Crudo's motion to suppress before a different judge. State v. Crudo , No. 112,805, 2015 WL 7162274, at *13 (Kan. App. 2015) (unpublished opinion).
The new judge scheduled a hearing on the motion in September 2016. Crudo never appeared and was not before the court again until his arrest in 2019 for his failure to appear in 2016.
The district court held a new evidentiary hearing in November 2019 but ultimately denied Crudo's motion. The court clarified that its decision depended solely on the evidence presented at the November 2019 hearing. The case then proceeded to jury trial.
First Trial
At trial, Lieutenant Christopher Ricard testified that he stopped the pickup after noticing the tag lamp on the camper was not illuminated and, when he ran the camper's registration through dispatch, the dispatcher told him there was no record of that registration. It was later determined a mistake occurred
in the officer's relaying of the tag numbers and the dispatcher entering those numbers into the system, despite the officer's clarifying questioning of the dispatcher. But this mistake does not impact the appeal.
Upon stopping the pickup, Lt. Ricard approached the passenger side. Although Crudo was the registered owner of both the pickup and attached camper, he was in the back seat and another individual was driving. Lt. Ricard smelled a strong odor of raw marijuana coming from the pickup when the window was rolled down.
After Lieutenant Justin Stopper arrived as backup, Lt. Ricard told Crudo they planned to search the pickup. Crudo became combative to the point where the officers had to handcuff and place him inside a patrol car.
During their search of the pickup, the officers discovered a small piece of marijuana on the transmission hump between the passenger and driver's seats. They then obtained keys to the camper and searched it. They discovered 19 vacuum-sealed bags of marijuana beneath the bathtub in the camper. Some of these bags had writing which appeared to reflect the strain of marijuana contained within. Lt. Ricard testified that based on his training and experience, this quantity of marijuana would be consistent with possession with the intent to distribute. He confirmed none of the bags had any sort of drug tax stamp on them.
Lt. Ricard also testified a small amount of marijuana was found under the stairs along with rolling paper and a grinder—items he explained were consistent with personal use. But he clarified that finding rolling paper and a grinder in a different portion of the camper did not change his opinion that possession of 19 bags of marijuana was consistent with an intent to distribute.
The jury found Crudo guilty of possession of marijuana and possession of marijuana with no drug tax stamp but hung on the possession of marijuana with intent to distribute charge. At that point, the State told the district court it intended to retry Crudo on the possession of marijuana with intent to distribute charge. The State asked the court to declare a mistrial on that charge, which it did.
Motion to Vacate
After his first trial, Crudo moved to vacate, raising two double jeopardy arguments. He argued his convictions for possession of marijuana and possession of marijuana with no drug tax stamp were multiplicitous. He also argued his conviction for possession of marijuana was a lesser included crime of possession of marijuana with intent to distribute and, as a result, the State could not retry him. The district court denied Crudo's motion.
Second Trial
When the State retried Crudo for possession of marijuana with intent to distribute, the jury returned a verdict of guilty.
Sentencing
The district court designated count one, possession of marijuana with the intent to distribute, as the base sentence, with sentences for the other counts to run concurrently. The court then granted Crudo's motion for a dispositional departure and sentenced him to 36 months' probation with an underlying 108-month prison term.
Crudo timely appealed.
ANALYSIS
The district court correctly denied Crudo's motion to suppress.
Crudo argues the warrantless search of his camper violated his rights under the Fourth Amendment and section 15 of the Kansas Constitution Bill of Rights so the district court should have suppressed the evidence found there. Crudo contends this search was impermissible because: (1) the automobile exception should not extend to the camper, and (2) the officers had no probable cause to believe the camper contained contraband.
Standard of Review
Usually, when reviewing a motion to suppress, an appellate court reviews the district court's findings of fact to determine
whether they are supported by substantial competent evidence and reviews the ultimate legal conclusion de novo. State v. Cash , 313 Kan. 121, 125-26, 483 P.3d 1047 (2021). But when the material facts supporting the court's decision are not in dispute, the question for this court—whether to suppress—is one of law, and we exercise unlimited review. State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018).
Applicable Law and Analysis
" ‘[A] warrantless search by a police officer is per se unreasonable under the Fourth Amendment unless the State can fit the search within one of the recognized exceptions to the warrant requirement.’ " State v. Doelz , 309 Kan. 133, 140, 432 P.3d 669 (2019). One recognized exception is probable cause plus exigent circumstances, and a subclass of this exception is the "automobile exception." 309 Kan. at 140, 143, 432 P.3d 669. "The automobile exception provides that a warrant is not required to search a vehicle as long as ‘probable cause exists to believe the vehicle contains contraband or evidence of a crime’ and the vehicle is ‘readily mobile.’ " 309 Kan. at 143, 432 P.3d 669.
The automobile exception applies to the camper.
Crudo first challenges the search of the camper by arguing the automobile exception that allowed for a warrantless search of the pickup did not extend to the camper. He argues the justifications which underly the automobile exception—(1) the " ‘practical challenges of obtaining a warrant for a vehicle that could be "quickly moved" out of the jurisdiction,’ " and (2) the vehicle operator's reduced expectation of privacy in the operation of a vehicle on a roadway—do not support the application of this exception to the camper.
While Crudo contends the camper is not a vehicle and "could not be rapidly moved," he acknowledges courts have found trailers are mobile which brings them under the automobile exception, citing United States v. Navas , 597 F.3d 492, 499-500 (2d Cir. 2010) (finding tractor trailer was inherently mobile because it could be towed away); United States v. Smith , 456 Fed. Appx. 200, 209 (4th Cir. 2011) (unpublished opinion) (finding that tractor trailer "clearly was inherently mobile"). But he argues these holdings are too broad and should not apply to the camper since it could not move on its own. Analogizing a camper to a residence, he argues expanding the exception to attached campers and trailers "allows for a highly intrusive search into the private lives of individuals and their personal possessions."
Crudo relies on Collins v. Virginia , 584 U.S. ––––, 138 S. Ct. 1663, 201 L. Ed. 2d 9 (2018), to support his argument that the automobile exception should not be extended to the camper. In Collins , officers claimed the automobile exception allowed a warrantless search of a motorcycle covered with a tarp and parked in a driveway. But the United States Supreme Court disagreed, holding: "[T]he automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein." 138 S. Ct. at 1675. We find Collins...
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State v. Hunter
... ... supported by the evidence. Though the camper was not ... permanently affixed to the land, it also could not be driven ... away at a moment's notice ... Hunter ... was not operating the camper as in State v. Crudo , ... 62 Kan.App.2d 464, 517 P.3d 857, rev. granted 316 ... Kan. 759 (2022). Frank Raymond Crudo was driving his ... pickup truck with a fifth-wheel camper attached when police ... pulled him over, leading to a search that revealed marijuana ... This court held that ... ...