State v. Cruz
| Citation | 15 Kan.App.2d 476,809 P.2d 1233 |
| Decision Date | 19 April 1991 |
| Docket Number | No. 64748,64748 |
| Parties | STATE of Kansas, Appellee, v. Jorge A. CRUZ and Juan Tomas De La Cruz, Appellants. |
| Court | Court of Appeals of Kansas |
Syllabus by the Court
1. The capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.
2. Trespassers are not entitled to Fourth Amendment rights because they do not have a reasonable expectation of privacy in the property.
3. An employee normally has no standing to challenge the legality of a search of his/her employer's premises.
4. The burden is on the defendant to show an expectation of privacy in the property searched.
5. A defendant may testify at a suppression hearing to establish his standing to challenge a search without jeopardizing his defense at trial.
6. A prosecutor may simultaneously maintain a defendant criminally possessed the seized goods, but was not subject to a Fourth Amendment deprivation, without legal contradiction.
7. Whether witnesses are qualified as experts and their testimony and opinions are admissible is left to the sound discretion of the trial court which will not be disturbed on appeal absent an abuse of that discretion.
8. An expert witness' opinion is limited to those based on facts or data perceived by or personally known to the witness and within the scope of the witness' special knowledge, skill, experience or training.
9. A conviction of even the gravest offense may be sustained by circumstantial evidence. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
10. Possession of a controlled substance requires having control over the substance with knowledge of and the intent to have such control.
11. When a defendant is in nonexclusive possession of the premises upon which drugs are found it cannot be inferred that the defendant knowingly possessed the drugs unless there are other incriminating circumstances linking the defendant to the drugs.
12. Presumptions and inferences may be drawn only from facts established, and presumption may not rest on presumption or inference on inference.
13. Where reliance is placed on circumstantial evidence the circumstances in question must themselves be proved and cannot be inferred or presumed from other circumstances.
14. Permissible presumptions or inferences must have substantial probative force as distinguished from surmise.
15. Inferences may be drawn from facts and conditions proved but they cannot be drawn from facts or conditions which are imagined or assumed.
16. An inference of unlawful behavior may not be contradictorily drawn from direct evidence of lawful behavior.
Lucille Marino, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant Jorge A. Cruz.
Geary N. Gorup of the Law Offices of Leslie F. Hulnick, P.A., Wichita, for appellant Juan Tomas De La Cruz.
Bruce L. Stewart and Thomas J. Robinson, Asst. Dist. Attys., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before BRAZIL, P.J., and LARSON and GERNON, JJ.
Jorge A. Cruz and Juan Tomas De La Cruz appeal their convictions of possession of cocaine with intent to sell. K.S.A.1988 Supp. 65-4127a.
On February 23, 1989, Bob Pierce notified the Wichita Police Department of a possible burglary in the vacant house next to his. He had observed a black male wearing dark clothing and a dark ball cap enter the house and leave five minutes later. Officer Wahl responded to the call.
Officer Wahl spoke briefly to Pierce, who told him he saw a man wearing a red ball cap enter the house. Officer Wahl went to the front door of the house, knocked, and tried to open the door. As he turned to leave, the door opened.
Jorge and Juan Tomas were standing in the doorway. One of them was wearing a red ball cap. Officer Wahl tried to communicate with and obtain identification from Jorge and Juan Tomas, who did not appear to understand English. Jorge and Juan Tomas stepped back into the house and Officer Wahl stepped onto the front landing of the entryway as he continued to attempt to obtain identification. After a conversation in Spanish between Jorge and Juan Tomas, which Officer Wahl did not understand, Juan Tomas began walking toward the rear of the house out of the officer's line of vision. Fearing that Juan Tomas would attempt to escape, the officer took Jorge by the coat and followed Juan Tomas to the back of the house.
Juan Tomas went to the basement but came back up in four or five seconds. Officer Wahl heard what he thought was a wooden object hitting the basement floor. The three returned to the living room where they waited for back-up officers to arrive.
When back-up Officers White and Runft arrived, Officer Wahl left to talk with neighbors. Learning nothing, Officer Wahl went back to the house and down into the basement to check out the noise he had heard earlier. He saw what appeared to be part of a gun sticking out between cushions on a sofa. He removed the cushions and discovered plastic bags and scales. He left the items as he found them.
Jorge and Juan Tomas were taken to the police station, and a search warrant was obtained for the house. Officer Cutliff executed the warrant and found in the basement a gun, scales, plastic bags, 1.8 pounds of 87 to 98 percent pure cocaine in a bag under the stairs, and 3 letters. Upstairs, $710 in cash was found under the carpet in a bedroom and a key ring was found in the closet of the bedroom. Kenneth Holmes, the landlord, recognized three of the keys as the keys he gave to a lady named Maria Garcia, who had rented the place with the assistance of Holmes' tenant Penny Comacho.
A search of the residence failed to turn up paraphernalia for scooping or measuring the cocaine or any substance for "cutting" the cocaine. Attempts to match latent fingerprints found on a plastic shopping bag with those of either Jorge or Juan Tomas failed, as did an attempt to match palm prints to either of the defendants.
The house was one of many rental properties owned by Holmes. Through Comacho, a tenant who helped him locate other tenants for his properties, Holmes rented the house to Garcia on February 16, 1989. Holmes testified that, several days after he had rented the house to Garcia, the house appeared to be unoccupied.
At the time of the arrest, there was no furniture, food, or clothing in the house. There were some curtains or sheets nailed to the windows. Comacho testified that Jorge and Juan Tomas had been with her and Garcia earlier in the day and that Garcia, Jorge, and Juan Tomas had gone to the house to hang curtains.
Garcia has apparently left the Wichita area and did not testify at either the hearing on the motion to suppress or the trial.
Officer Cutliff and Detective Derby testified that in their opinions the house was being operated as a "safe house" where drugs are warehoused for distribution to sellers.
Jorge and Juan Tomas were tried jointly and convicted of possession of cocaine with intent to sell. Their motions to suppress and motions for directed verdict were denied. Neither defendant presented any evidence. Motions for new trial were denied and each defendant was sentenced to 3 to 10 years' imprisonment. Both appealed.
Separate counsel represented Jorge and Juan Tomas at trial and on appeal.
Juan Tomas raises five issues on appeal: (1) Did the trial court err in allowing the prosecution to proceed on its submitted bill of particulars; (2) did the trial court err in admitting testimony regarding "safe houses"; (3) did the trial court err in failing to grant his motion for judgment of acquittal; (4) did the trial court err in denying his motion to suppress evidence; and (5) did the trial court err in instructing the jury regarding possession?
Jorge claims on appeal that (1) the evidence was insufficient to support the jury's finding of guilt when there was no evidence that he possessed the drugs and the trial court erred in failing to grant his motion for judgment of acquittal following the presentation of the State's case, and (2) the trial court erred in giving an erroneous instruction and in refusing to properly instruct the jury on the definition of possession.
Although we reach our ultimate decision by the determination of Jorge's first issue and Juan Tomas' third, we must first consider the propriety of denying the motion to suppress and admission of the evidence regarding "safe houses."
Did the trial court err in denying the motion to suppress the evidence?
Both defendants moved to suppress, contending all physical evidence seized was inadmissible as fruit of the poisonous tree, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), because the original entry into the home was impermissible without a search warrant and probable cause for the subsequent search warrant was based on information obtained as a result of the original warrantless entry.
The evidence at the suppression hearing did not show any lawful reason for the defendants to be on the premises where they were arrested. Based on that evidence, the trial court reached the following decision:
To continue reading
Request your trial
-
State v. Ferguson, 68131
...Cruz and Juan Tomas De La Cruz, in part, because the jury had been allowed to speculate on unjustifiable inferences. State v. Cruz, 15 Kan.App.2d 476, 490, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991). The Court of Appeals stated that the convictions rested on "an inference of unlawful be......
-
State v. Rice, 71971
...stacks one inference upon another. Rice cites State v. Williams, 229 Kan. 646, 648-650, 630 P.2d 694 (1981), and State v. Cruz, 15 Kan.App.2d 476, 491, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991), as authority. In essence, defendant would have this court hold that first-degree murder cou......
-
State v. Grissom
...in an attempt to establish standing, that testimony cannot be used against him at trial to establish guilt.); State v. Cruz, 15 Kan.App.2d 476, 484, 809 P.2d 1233 (1991) "If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on re......
-
U.S. v. Gutierrez-Casada, 07-40154-01-SAC.
...Fourth Amendment rights because they do not have a reasonable expectation of privacy in the property." State v. Cruz, 15 Kan.App.2d 476, 481, 809 P.2d 1233, 237 (Kan.App.1991). Rakas recognized as much by noting "`wrongful' presence at the scene of a search would not enable a defendant to o......