State v. Fisher, 89,300.

• Citation: 154 P.3d 455
• Decision Date: 16 March 2007
• Docket Number: No. 89,300.,89,300.
• Parties: STATE of Kansas, Appellee, v. Gregory C. FISHER, Appellant.
• Court: United States State Supreme Court of Kansas

154 P.3d 455

STATE of Kansas, Appellee, v. Gregory C. FISHER, Appellant.

No. 89,300.

Supreme Court of Kansas.

March 16, 2007.

Michelle A. Davis, assistant appellate defender, argued the cause and was on the brief for appellant.

Sherri L. Schuck, assistant county attorney, argued the cause, and Barry Wilkerson, county attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by NUSS, J.:

Gregory C. Fisher was convicted of unlawful manufacture of methamphetamine, possession of ephedrine with the intent to manufacture methamphetamine, possession of anhydrous ammonia in an unapproved container for the production of methamphetamine, possession of methamphetamine, and possession of paraphernalia for use in the manufacture of methamphetamine. In State v. Fisher, No. 89,300, 105 P.3d 742, 2005 WL 331744, unpublished opinion filed February 11, 2005, a split Court of Appeals affirmed Fisher's convictions but remanded for resentencing in accordance with State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005), and State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). This court granted Fisher's petition for review; our jurisdiction is under K.S.A. 60-2101(b).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the district court err in failing to suppress evidence obtained pursuant to a search warrant partially based upon the contents of a trash bag seized from Fisher's property? No.

2. Did the district court's admission of hearsay evidence violate Fisher's right to confrontation under the Sixth Amendment to the United States Constitution? No.

3. Are Fisher's convictions for possession of ephedrine and possession of paraphernalia multiplicitous with his conviction for manufacture of methamphetamine? No.

FACTS

On August 20, 2001, Detective Shane Jager of the Pottawatomie County Sheriff's Department received information from fellow deputy Paul Hoyt concerning suspicious activity at 12420 Highway 63, Emmett, in Pottawatomie County. The property is located in a rural area approximately 4 miles north of the town of Emmett, on the west side of Highway 63. There are no other houses in the general vicinity on the west side of the highway. On the east side of the highway, the closest neighbor's house is approximately a quarter of a mile away.

The property is bounded on the east by Highway 63 and by barbed wire fencing on the north, south, and west which separates the property from surrounding pasture. Photographs reveal the house is approximately 25 yards west of the highway and sits on the northeast part of the property. Its front porch and door face south. A large shed (barn) is located 50 to 60 yards straight west of the house's western exterior near the barbed wire fence. A second, smaller shed sits equidistant between the house and the barn, but somewhat north, actually forming part of the north fence.

From Highway 63, a driveway runs from east to west on the south of the house, curving to the north and ending in a turn-around near the center of the area bounded by the three buildings. The only apparent walkway or sidewalk leads directly south from the house's front door to the driveway. According to photographs in the record, several large trees surround the house inside of the driveway.

According to Jager's suppression hearing testimony, Deputy Hoyt told him that a concerned citizen noticed a strong or peculiar odor emanating from trash being burned on the property and also observed numerous cars stopping there for short intervals of time. Hoyt further relayed to Jager that on August 28, 2001, he received information from another concerned citizen that a white female driving a van—that had been seen coming and going from the residence—drove to a shed located on the property, emptied boxes, placed more boxes in the van, and then left.

At approximately 1 a.m. on the day after Hoyt relayed the information about the delivery of boxes, Jager, Sergeant Chris Schmidt, and Deputy Shane Van Meter went to the area to determine if they could observe anything. While standing in a grass field to the west of the property, and approximately 30 yards west of the barn, Jager noticed a strong odor of ether. Based on his special training, coupled with the prior information of cars stopping at the residence, Jager suspected that methamphetamine was being manufactured and sold there.

Later that morning, Jager returned to the area twice more, once with the county attorney. From his parked position near Highway 63 about 50 yards south of Fisher's driveway, and once again off of Fisher's property, Detective Jager saw a burn barrel and a white translucent plastic trash bag near the barn. He then used binoculars to observe that the bag contained yellow containers. Based upon his training and experience, he associated the yellow bottles with the manufacture of methamphetamine, i.e., Heet bottles. Jager then walked to the field north of the property, where he again smelled ether. Jager testified that at that point he "[a]sked [the county attorney] how he felt about the trash bag. He said . . . it was not on curtilage, that I could obtain the trash bag, and I advised him that I would like to try . . . to talk to the residents, see what we could obtain from them, and that's when I went to the door of the residence."

Jager testified that after this discussion with the county attorney he got back in his vehicle and

"I pulled my patrol vehicle in the driveway, went to the front door, knocked on the door several times. [After no answer,] I got back in my vehicle and there's a circle driveway that goes around the back side of the residence there, got in, drove by. When I was driving by the white trash bag I noticed Actifed blister packs, several Heet bottles, and—and that's when I collected that white trash bag.

. . . .

". . . I was circling around to leave the property. I had taken this, if you want to say southwest part of the circle drive and started back around . . . and I could see that there were Heet bottles, Actifed blister packs, and pseudoephedrine."

Jager brought the bag to the sheriff's department for examination. In addition to the Heet bottles and 8 to 10 packs of ephedrine, the bag contained plastic gloves, coffee filters with a pinkish powder residue, and miscellaneous trash, including documents identifying Greg Fisher and Betty Harper.

Based upon the tips and Jager's information observed and obtained at the scene, including the contents of the bag, he applied for a search warrant which was obtained from Magistrate Judge Blaine A. Carter and executed for the house, outbuildings, and vehicles. Inside the doorway of the house, Jager found another white trash bag containing empty blister packs of pseudoephedrine, battery casings, lithium casings, three bottles of Heet, coffee filters, and other miscellaneous trash. He also found a white, cylinder-style grinder containing a pinkish substance on top of the microwave. In addition, he located pipes used to smoke methamphetamine and marijuana, glass jars containing residue, items used to manufacture methamphetamine, methamphetamine, and a cellophane bag containing ephedrine.

Inside the barn west of the house, law enforcement officers found a freezer containing a cooler of anhydrous ammonia. They also found a gas generator, rock salt, acid, coffee filters, a blender, Heet bottles, isopropyl alcohol, vinyl gloves, mason jars, a hypodermic needle, several pieces of hose, Epsom salt, Zip-Lock baggies, empty blister packs of pseudoephedrine, and battery parts to at least 59 "`Energizer L91 AA'" lithium batteries.

Approximately 1 hour after the search warrant was initially executed, Betty Harper arrived at the property. Defendant Fisher and David Holden arrived a few hours later. Fisher's left front pocket contained two baggies and a glass vial containing a powdery substance. All three items tested positive for methamphetamine.

Fisher was charged with unlawful manufacture of a controlled substance, possession of ephedrine with the intent to manufacture a controlled substance, unlawful possession of anhydrous ammonia, possession of methamphetamine, and possession of drug paraphernalia.

Prior to trial, Fisher moved to suppress all evidence seized from the property. After a hearing, the district court denied Fisher's motion.

Detective Jager, Detective Paul Schliffke, KBI Agent William Smith, Jeff Rosell, James Schieferecke, Jr., Betty Harper, and Mendy Roma all testified at the jury trial on behalf of the State. Fisher testified on his own behalf.

Detective Jager testified generally consistent with his suppression hearing testimony.

Among other things, Agent Smith testified about David Holden's statements. According to Smith, Holden told him that Holden stayed at the Fisher residence; that Fisher had three "eight balls" or 8 ounces of methamphetamine with a street value of approximately $750; that Holden and Fisher had used several grams of methamphetamine on August 29, 2001; that Fisher had given Holden a gram of methamphetamine; and that Holden believed he saw Fisher previously cooking methamphetamine. Holden was not present to testify. Nevertheless, the court also admitted Holden's written statement dated August 30, 2001.

Betty Harper testified that she lived at the residence with Fisher, her fiancé. Approximately 1 month before Fisher's arrest, Harper wrote a letter to Fisher asking him to stop the "hobby in the barn." Harper stated that she used methamphetamine she received from Fisher; however, she opined that to her knowledge, Fisher did not "cook" the methamphetamine.

Mendy Roma testified that she dated Fisher prior to his arrest. The day before Fisher's arrest, she went to the residence and observed him manufacturing methamphetamine in the back of his truck. She also testified that she witnessed Fisher manufacturing methamphetamine in the barn on several occasions.

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