State v. Overman, 105,504.
| Decision Date | 17 April 2015 |
| Docket Number | 105,504. |
| Citation | 301 Kan. 704,348 P.3d 516 |
| Parties | STATE of Kansas, Appellee, v. Larry G. OVERMAN, Appellant. |
| Court | Kansas Supreme Court |
John Grube, of Kansas Appellate Defender Office, argued the cause, and Matthew J. Edge, of the same office, was on the brief for appellant.
Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.
A jury convicted Larry G. Overman of six drug offenses, and he appealed those convictions and corresponding sentences to the Court of Appeals, which affirmed in part and reversed in part. State v. Overman, No. 105,504, –––Kan.App.2d ––––, 2012 WL 6634362 (Kan.App.2012) (unpublished opinion). Overman seeks our review of that portion of the Court of Appeals' decision that was adverse to him, including the affirmance of the district court's denial of his suppression motion; the affirmance of his convictions for the separate offenses of possessing red phosphorous and iodine and possessing drug paraphernalia with intent to manufacture; and sanctioning the use of his prior convictions to enhance his sentence. The State did not seek review of the portion of the Court of Appeals' opinion in favor of Overman. Finding no error on the issues presented in Overman's petition for review, we affirm.
The charges against Overman arose out of a traffic stop on October 4, 2007, in Baxter Springs. Two days earlier, Baxter Springs Police Officer David Groves had seen Overman and Sharlotte Carey traveling in a Chevy Citation, which was registered in both of their names. The officer knew both persons, and, because he believed that Overman had previously been involved in illegal narcotic activity, the officer conducted a criminal background check and driver's license scan on both Overman and Carey. That inquiry revealed that both had prior drug charges and arrests and that Overman currently had a suspended driver's license. That information prompted Officer Groves to enlist the aid of Sergeant Joseph Sparks and Officer Jon Hunt to effect the traffic stop on October 4.
After the stop was effected in a parking lot, the two exited the vehicle. Sergeant Sparks had Overman sit on the ground by the front of his patrol car, while the sergeant conferred with Officer Groves. Then, the sergeant advised Overman of the reason for the stop and that he was going to be arrested. In connection with a patdown search for weapons, the sergeant discovered that Overman was carrying coffee filters, which the sergeant knew from training and experience could be used in the manufacturing of methamphetamine. The sergeant then escorted the handcuffed Overman to the backseat of his patrol car.
Meanwhile, Officer Groves found a small black pouch on the ground near where Overman had just been sitting. The pouch contained what appeared to be a marijuana cigarette, $330, a baggy containing white powder, and three small pieces of plastic with a white powdery substance on them. From their training and experience, the officers thought the white powder was methamphetamine.
Sergeant Sparks read Overman his Miranda rights and asked about the pouch. Overman claimed ownership and surmised that it must have fallen from his lap when he exited the vehicle. Further, Overman admitted that the hand-rolled cigarette was marijuana, but he claimed that the white powder was “BC Powder” and that it would not test positive for methamphetamine.
At the same time, Officer Groves was interviewing Carey, who he had handcuffed but not formally arrested. Carey said that several days earlier she had accompanied Overman to a residence, where she presumed Overman had manufactured methamphetamine, and afterwards they both used hypodermic needles to inject methamphetamine. Carey told the officer that the needles might still be in the Citation.
After sharing their respective information, the officers decided to search the Citation. Their initial search revealed several items consistent with the manufacturing of methamphetamine, so the officers terminated the search, towed the vehicle to headquarters, and obtained a search warrant. The subsequent warrant search revealed additional items associated with the manufacture of methamphetamine.
The State charged Overman with driving with a suspended license and multiple drug crimes. Overman filed a motion to suppress At the suppression hearing, both arresting law enforcement officers testified that Overman's vehicle was searched incident to his arrest. The sergeant said that Overman was arrested for the crimes of possession of marijuana and possession of drug paraphernalia, but he further explained that because they had discovered the coffee filters, the marijuana cigarette, and the white powder he thought was methamphetamine, and because of Carey's statement about hypodermic needles, he thought the vehicle might contain items used to manufacture methamphetamine.
The district court denied Overman's motion to suppress based on the search incident to arrest exception to the warrant requirement. The court found that “the concept of arrest is broad enough for a vehicle search incident to lawful arrest to include searches relating to crimes discovered in the course of the arrest process before the search is conducted.” The court reasoned that the officers had probable cause to arrest Overman for possession of marijuana and “[p]robable cause for an arrest for possession of paraphernalia could certainly be argued.” The court also noted that because Carey had not been arrested, she could have left with the vehicle and the evidence could have been destroyed, i.e., exigent circumstances existed.
At trial, Overman preserved his objection to the vehicle search with a standing objection. In addition to the trial testimony of the arresting law enforcement officers, Kansas Bureau of Investigation (KBI) Drug Task Force Agent Ronnie Light testified that the vehicle search revealed numerous items associated with the manufacture of methamphetamine: a sealed bottle of strong iodine, a Pyrex glass dish with a red residue, a blue cooler containing a water jug turned upside down, coffee filters containing iodine crystals, an opened canister of acetone, four unopened bottles of Heet brand antifreeze, a light bulb with red sludge, a t-shirt with white sludge, multiple boxes of matches, one box of which contained 300 match books with missing striker plates and match heads, a bucket containing white crystals, a half-full bottle of lighter fluid, a pair of corroded scissors, a glass measuring cup, a hot plate, and a knife with residue. As a result of the items found, Light concluded that the manufacture of methamphetamine had occurred utilizing the “Red P” method, in which a reaction vessel is used to combine ephedrine, iodine, and red phosphorous. Light explained that the striker plates on match books contain the red phosphorous needed for the manufacturing process.
The search also revealed four hypodermic needles, which Light explained could be used to inject methamphetamine into the body.
KBI testing confirmed that the cigarette was marijuana and that iodine, red phosphorous, and methamphetamine were present on items taken from the car.
The jury convicted Overman of manufacturing a controlled substance in violation of K.S.A.2007 Supp. 65–4159 ; possession of red phosphorous and iodine with intent to manufacture a controlled substance in violation of K.S.A.2007 Supp. 65–7006 ; possession of drug paraphernalia with the intent to manufacture methamphetamine in violation of K.S.A.2007 Supp. 65–4152(a)(3) ; possession of methamphetamine in violation of K.S.A.2007 Supp. 65–4160(a) ; possession of marijuana in violation of K.S.A. 65–4162(a)(3) ; and possession with intent to use drug paraphernalia in violation of K.S.A.2007 Supp. 65–4152(a)(2). The district court sentenced Overman to 324 months' imprisonment.
In addition to the issues raised in this petition for review, Overman's appeal to the Court of Appeals included claims of error that were successful. He convinced the panel that the district court had improperly instructed the jury on the definition of drug paraphernalia, resulting in a reversal of his conviction for possession of drug paraphernalia with the intent to manufacture methamphetamine. Overman, 2012 WL 6634362, at *7. The Court of Appeals also agreed with Overman's argument that the district court had misclassified the severity level of his conviction for possession of red phosphorus and iodine with intent to manufacture. 2012 WL 6634362, at *9–10. Based on State v. Adams, 294 Kan. 171, 187, 273 P.3d 718 (2012) and State v. Snellings, 294 Kan. 149, 155–59, 273 P.3d 739 (2012), the panel vacated his sentence for that crime based on a severity level 2 drug felony and remanded for resentencing based on a severity level 4 drug felony. 2012 WL 6634362, at *9–10. Without a cross-petition from the State, those issues are not now before this court for review.
Overman first argues that the district court erred in denying his challenge to the warrantless search of his vehicle. As noted, some of the evidence used to convict Overman was obtained pursuant to a warrant. But Overman contends that the unlawful warrantless vehicle search tainted the subsequent warrant and its execution, and the State does not refute that claim. Instead, the State ultimately relies on the argument that the initial vehicle search was lawful based upon the probable cause plus exigent circumstances exception to the warrant requirement. We agree with the State's latest argument.
The district court's factual findings on a motion to suppress are reviewed for substantial competent evidence, but the legal conclusions to be drawn from the evidence are reviewed de novo. State v. Pettay, 299 Kan. 763, 768, ...
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