State v. Preston

• Decision Date: 22 May 2009
• Docket Number: No. 98,629.,98,629.
• Citation: 207 P.3d 1081
• Parties: STATE of Kansas, Appellee, v. Bernard Eugene PRESTON, Appellant.
• Court: Kansas Court of Appeals

207 P.3d 1081

STATE of Kansas, Appellee, v. Bernard Eugene PRESTON, Appellant.

No. 98,629.

Court of Appeals of Kansas.

May 22, 2009.

Christina M. Waugh, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant district attorney, Phill Kline, district attorney, and Stephen N. Six, attorney general, for appellee.

Before HILL, P.J., ELLIOTT and LEBEN, JJ.

HILL, J.

This is a direct appeal by Bernard E. Preston from his drug convictions. Preston questions the legality of a car stop as well as the resulting searches of his person and car. In addition, Preston raises trial errors of admitting evidence of his refusal to consent to searching the car and allowing the State's attorney in closing argument to comment about that refusal. Also, Preston complains about the trial court admitting evidence of his prior drug conviction. Finally, he contends the trial court improperly imposed a higher sentence from the grid box without a jury determination of any sentencing aggravating factors. After reviewing the record on appeal, we must affirm.

The facts reflect a car stop based on a suspicion raised by a dispatcher's report.

While on patrol at 1:30 a.m. on September 3, 2005, Lenexa Police Detective Sergeant Dan Owsley received a radio report from the dispatcher that police had gone to the Overland Park Regional Medical Facility to look into an aggravated battery report. According to the report, the suspect had dropped the battery victim off at the hospital and then left the hospital on foot. Following up, Owsley drove to the area looking for a black male on foot.

Within a few minutes, the dispatcher told Det. Sgt. Owsley a person who might be heading to pick up the suspect was driving a Cadillac, Suburban, or Oldsmobile car. With this in mind, Owsley began looking for such cars. Within 5 minutes of hearing about the aggravated battery, Owsley saw a white Cadillac pull onto the street. A black male drove the Cadillac, and the officer noted a black female passenger. When the Cadillac passed Owsley, both occupants of the car stared at him. Suspicious, Owsley began to follow the Cadillac.

Knowing that a driver in Kansas must, by law, signal a turn at least 100 feet before making a turn, Owsley noticed the driver of the Cadillac failed to give such a turn signal before the car turned. Using that seeming traffic violation as a pretext, Owsley stopped the car.

Owsley did say later that from the time he first saw the Cadillac he thought the occupant could be either the aggravated battery suspect or the person picking up the suspect. According to the officer, his purpose for stopping the car was to discover any possible involvement of the people in the Cadillac with the aggravated battery as well as the traffic violation.

Not gaining consent to search the Cadillac, the detective searches the car and driver anyway.

After the Cadillac pulled over, Owsley got out, approached the driver's door, got the driving license from the driver, and asked the occupants where they were going. The driver, Preston, said they were going to pick up a relative, but he could not give the relative's address and would not give the relative's name.

Detective Sergeant Owsley discovered from the computer that Preston was on federal supervision for a narcotic violation for a conviction for conspiracy to sell crack cocaine. Owsley found this information significant because he believed there must be substantial illegal involvement to be placed on federal supervision.

Turning his attention to the passenger, Owsley met Demicka Johnson, who also owned the car. When he asked her for permission to search, Johnson told Owsley he would have to ask Preston.

Pursuing the matter, Owsley went back to speak with Preston. Preston's phone was ringing "quite a bit." Owsley asked Preston to place the phone on the trunk of the car. At this time, Owsley saw a box of cigarillos containing loose tobacco on the backseat of the car. To Owsley, this suggested marijuana involvement because "people oftentimes hollow out the cigar, fill it with marijuana, and smoke it as a marijuana blunt."

Concerned for his safety, Owsley performed a pat-down search of Preston to make sure Preston did not have any weapons. Owsley did not feel any weapons on Preston's person but did feel a lump in his pocket. He believed the lump was money and asked if he could search the pocket to make sure that was all it was. Preston said he could. The officer discovered $2,500 in $100, $50, $20, and $10 increments. Owsley thought the amount was significant because Preston had told him he had been unemployed for 6 months. Also, in his experience, Owsley said people associated with narcotics sales often fold their money in such increments and most people do not have $2,500 in their pocket.

Based on many factors, Owsley wanted to search the Cadillac to ensure there were no weapons in the car. These factors included the aggravated battery report; the battery suspect in the area trying to find a ride; the report that a Cadillac was possibly picking up the suspect; Owsley's belief about Preston's involvement with the suspect; Owsley's experience that aggravated batteries often involve drugs; and the large amount of money held by Preston, a man who said he had been unemployed for some time.

During this weapons search of the Cadillac, Owsley smelled the odor of burned marijuana. From this odor, he believed there was marijuana in the car and began searching throughout the car for the source of the odor. Owsley thought the odor was coming from an ashtray, but he found no marijuana there.

Owsley called for a K-9 officer, and the rest of the car was searched by a canine. The canine showed a strong interest along the side of the front passenger seat. The officer conducted a second search of the car. This time the officers found cocaine and marijuana in an ashtray on the right rear passenger's door.

The State charged Preston with possession of cocaine with intent to sell contrary to K.S.A. 65-4107(b)(5), K.S.A. 65-4161(a), K.S.A. 21-4705, and K.S.A. 21-4708; possession of marijuana contrary to K.S.A. 65-4105(d)(16), K.S.A. 65-4162(a), and K.S.A. 21-4502(1)(a); and possession of more than 1 gram of cocaine with no Kansas drug stamp in violation of K.S.A. 79-5201 et seq., K.S.A. 79-5208, K.S.A. 21-4704, and K.S.A. 21-4707.

The defense fails to suppress evidence, and the jury convicts Preston.

Before trial, Preston moved to suppress all evidence seized from the car. In his suppression motion, Preston argued the stop was unfounded and lacked probable cause. Preston argued Owsley lacked probable cause to continue questioning or searching him once he found out Preston was not the aggravated battery suspect.

In response, Owsley believed he had probable cause to search the Cadillac for nine reasons. First, the odor of burned marijuana in the car; second, in the early morning hours when there is little traffic, Preston was near where the aggravated battery suspect was thought to be; third, Owsley's belief that aggravated batteries are often associated with narcotics; fourth, the Cadillac fit the description of a car possibly on the way to pick up the suspect; fifth, the box of cigarillos with loose tobacco, typical of marijuana use; sixth, the narcotics' conviction on Preston's record; seventh, Preston's evasiveness about the relative he was picking up; eighth, Preston's ringing cell phone; and, ninth, the cash, the amount, the way it was sorted by denomination, and the way it was folded.

The district court denied Preston's motion, finding that Owsley saw Preston commit a traffic violation by failing to signal a turn as required by the statute. The court held that even though the traffic stop was a pretext Owsley had reasonable suspicion for the stop. The court ruled Detective Sergeant Owsley had a basis to continue his investigation based on the appearance of narcotics activity. On the State's motion to clarify, the district court noted that Owsley first noticed the marijuana smell when he placed his head inside the car to conduct a protective sweep for firearms. The court went on to hold the smell provided probable cause to search the car. The jury convicted Preston on all charges.

We look first at the car stop.

Preston first argues the stop was an illegal seizure because there was no basis to believe he committed, was committing, or was about to commit a crime. In reply, the State contends Preston failed to preserve this issue because no objection was made when Owsley testified about the stop.

Generally when the defendant does not object at trial to evidence resulting from an allegedly illegal traffic stop, the issue is not preserved for appeal. State v. Anderson, 33 Kan.App.2d 607, 609-610, 106 P.3d 89 (2005); see State v. Saenz, 271 Kan. 339, 349, 22 P.3d 151 (2001); K.S.A. 60-404. The defendant must object at trial even after a motion to suppress was made and denied. State v. Holmes, 278 Kan. 603, 610, 102 P.3d 406 (2004).

Even though Preston did not object at trial to testimony regarding the stop, Preston did object to the evidence resulting from the stop when he lodged a continuing objection to the search of the Cadillac. When a continuing objection is made, failure to object when the evidence is later admitted does not bar the defendant from raising the issue on appeal. State v. Branning, 271 Kan. 877, 880, 26 P.3d 673 (2001). We hold Preston preserved a challenge to the stop by objecting to the evidence seized from the stop and search. Therefore, we will proceed with our inquiry.

Preston contends the State failed to prove he violated K.S.A. 8-1548(b), the turn signal violation. In State v. Greever, 286 Kan. 124, 138, 183 P.3d 788 (2008), our Supreme Court ruled that a violation of K.S.A. 8-1548 is an absolute liability offense. The court explained that the plain language of the statute provides that a vehicle must signal a turn continuously for at least 100 feet before...