State v. Ibarra

• Decision Date: 08 December 2006
• Docket Number: No. 89,011.,89,011.
• Citation: 147 P.3d 842
• Parties: STATE of Kansas, Appellee, v. Steven M. IBARRA, Appellant.
• Court: Kansas Supreme Court

Page 842

147 P.3d 842

STATE of Kansas, Appellee, v. Steven M. IBARRA, Appellant.

No. 89,011.

Supreme Court of Kansas.

December 8, 2006.

Rick Kittel, assistant appellate defender, argued the cause and was on the brief for appellant.

Ernest H. Richardson, county attorney, argued the cause, and Thomas V. Black, former county attorney, and Phill Kline, attorney general, were on the brief for appellee.

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

Steven Manuel Ibarra was convicted by a jury of manufacture or attempted manufacture of methamphetamine, illegal possession of ephedrine or pseudoephedrine, possession of methamphetamine with intent to sell, and possession of drug paraphernalia. Ibarra appealed. In State v. Ibarra, No. 89,011, 2003 WL 21981945, an unpublished opinion filed August 15, 2003, the Court of Appeals affirmed in part, reversed in part, and remanded. This court granted the State's petition for review and Ibarra's cross-petition for review.

The facts are not in dispute.

One early morning, police stopped Ibarra for lack of a light on his license plate. The officers smelled a strong odor emanating from the vehicle, which they both recognized as ether. When the officers inquired about the source of the odor, Ibarra told them he did not notice it and suggested it could be coming from his work clothes. The officers asked him to get his work clothes, and Ibarra gave them a jacket from inside the vehicle. The strong odor of ether continued to come from the vehicle's interior after the jacket had been removed.

The officers associated the smell of ether with the manufacture of methamphetamine. They communicated with a detective to confirm that they had probable cause to search Ibarra's vehicle. Behind the driver's seat, the officers discovered a black bag in which they found a glass jar containing a white powdery substance. The detective went to the scene and performed field testing on the white substance, which tested positive for methamphetamine. Ibarra was arrested, and the officers obtained a search warrant for the remainder of the vehicle.

On Ibarra's person, officers found several small baggies wrapped in foil and a receipt for three packages of allergy tablets that had been purchased the previous day. Among the items found in Ibarra's vehicle were a butane torch, a fireproof safe containing a gun and ammunition, a microwave oven, four rolls of paper towels, a container of Liquid Fire drain cleaner, a rubber hose, plastic tubing, an unopened box of Sudafed cold tablets, and another receipt for three boxes of cold medication that also had been purchased the previous day.

Ibarra was tried and found guilty by a jury on the following charges:

Count I manufacture or attempt to manufacture methamphetamine;

Count II possession of ephedrine or pseudoephedrine with intent to use as a precursor to an illegal substance;

Count III possession of methamphetamine with intent to sell or distribute; and

Count IV possession of drug paraphernalia with intent to use to manufacture, compound, convert, produce, process, prepare, test or analyze, pack, repack, sell, or distribute a controlled substance.

Ibarra was sentenced to 120 months on each of Counts I and II, 15 months on Count III, and 11 months on Count IV. The sentences were run concurrently for a controlling sentence of 120 months.

The Court of Appeals held that it was clearly erroneous for the trial court to fail to provide separate jury instructions for manufacture of methamphetamine and attempt to manufacture methamphetamine and error to bundle the two separate and distinct offenses together in the verdict form. As a result, the Court of Appeals reversed and remanded Count I for a new trial. The Court of Appeals also held that because defendant's conduct of illegal possession of ephedrine or pseudoephedrine was punishable under both K.S.A. 65-7006(a), a severity level 1 drug felony statute under which he was convicted, and K.S.A. 65-4152(a)(3), which prohibits possession of drug paraphernalia and is a severity level 4 drug felony, he was subject only to the lesser sentence. The case was remanded for resentencing on Count II. The State petitioned for review of these two rulings. However, at oral argument the State abandoned its appeal as to both rulings, acknowledging as to the latter that State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005), controls sentencing.

The Court of Appeals concluded that Ibarra's convictions of illegal possession of ephedrine or pseudoephedrine and manufacture or attempted manufacture of methamphetamine were not multiplicitous, that jury unanimity was not required for possession of ephedrine or pseudoephedrine, that there was sufficient evidence to support Ibarra's convictions of manufacture or attempted manufacture of methamphetamine and possession of ephedrine or pseudoephedrine, and that the trial court properly denied Ibarra's motion to suppress. Ibarra cross-petitioned for review of these four rulings.

We first address whether the trial court erred in denying Ibarra's motion to suppress evidence. Additional facts will be developed in the discussion of this issue.

When a motion to suppress evidence is filed, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. Where the facts material to a trial court's decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which the court has unlimited review. State v. Boyd, 275 Kan. 271, 273, 64 P.3d 419 (2003).

The testimony considered by the trial court in ruling on Ibarra's motion to suppress was given principally at the preliminary hearing. Brief additional testimony was given by Detective Jeff Ward at the hearing on the motion to suppress. The evidence showed:

On September 6, 2001, Deputy James White of the Pratt County Sheriff's Department heard a report from a Barber County deputy of a vehicle speeding northbound on Highway 281. Pratt County lies north of Barber County. Pratt County Deputy Chris Tedder also heard the report, and he stopped a black Blazer. White arrived at the scene to back up Tedder.

When Tedder saw the vehicle and stopped it, it was not speeding. He stopped it because the light illuminating the license tag was out. Tedder told Ibarra, who was driving the vehicle, that the stop was because he had been reported speeding through Sawyer and his tag light was out.

White noticed a very strong odor of ether, which he knew from his training was one of the products used in the production of methamphetamine. He recognized the odor of ether because he was familiar with it from working at a co-op and from having to use it to start his 1963 Corvair. Because he detected the strong smell of ether prior to standing right next to the vehicle which had just been stopped and none of the vehicle windows were rolled down, White ruled out the possibility that the ether had been used to start the vehicle.

Tedder was familiar with the use of ether in the manufacture of methamphetamine and the smell of ether from his law enforcement training. He thought the smell was coming from inside the vehicle. Tedder observed nothing else that was indicative of a methamphetamine laboratory.

Tedder and White went back to Tedder's vehicle and conferred about the odor. Tedder contacted Detective Ward and asked if they had probable cause to search Ibarra's vehicle. Basing his decision on the odor of ether coming from the vehicle, Ward told Tedder that there was probable cause to search the vehicle.

White approached Ibarra and told him how strong the odor of ether was. Ibarra denied smelling it. White asked if there was any reason why he smelled ether, and Ibarra said he believed the smell could be on his work clothes or work jacket. Ibarra got a jacket out of the vehicle for White to smell. According to White, the jacket had an odor of ether, but it did not reek of ether like the vehicle did. After being out of the vehicle for awhile, the jacket "aired out and smelled normal."

Tedder asked Ibarra to get out of his vehicle. The officers asked Ibarra for consent to search his vehicle, and he refused. After having the passenger get out of Ibarra's vehicle, White opened the driver's door and began searching the interior of the car. Inside a black bag on the floorboard behind the driver's seat, he found a glass container with white powder in it. He believed it was the product of a methamphetamine laboratory.

Tedder contacted Ward, who came to the scene and field tested the contents of the glass container. It tested positive for methamphetamine. Ibarra was arrested. While White and Tedder stayed with the vehicle, Ward obtained a search warrant. A further search of the vehicle was conducted by Ward after he got the search warrant.

White testified that, even before Ibarra was arrested, he was not free to get back into his vehicle and drive off. Tedder, too, testified that, before Ibarra was arrested, he was being detained and that he was not free to leave.

At the suppression hearing in the trial court, defense counsel argued that, with Ibarra detained, there was nothing to prevent the officers from getting a search warrant before searching the vehicle. The State argued that it was irrelevant that Ibarra was detained because an officer with probable cause to believe there is evidence of a crime in a vehicle may search it without a warrant and without applying for a warrant. The trial judge concluded that the search fit within one of the recognized exceptions, probable cause accompanied by exigent circumstances, to the Fourth Amendment search warrant requirement:

"A strong smell of ether emanating from a motor vehicle in the middle of the night without some other reasonable explanation as to why there's a strong smell of ether emanating from a motor vehicle is in this Court's opinion probable cause to conduct a search. A motor vehicle on the side of the road...