State v. Ray

• Decision Date: 05 May 2023
• Docket Number: 124,784
• Parties: State of Kansas, Appellee, v. Barbara Ann Ray, Appellant.
• Court: Kansas Court of Appeals

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State of Kansas, Appellee, v. Barbara Ann Ray, Appellant.

No. 124,784

Court of Appeals of Kansas

May 5, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Natalie Chalmers, assistant solicitor general, and Kris Kobach, attorney general, for appellee.

Before BRUNS, P.J., GREEN and WARNER, JJ.

MEMORANDUM OPINION

PER CURIAM

After a 14-month investigation by the Leavenworth County Sheriff's Office, the State charged Barbara Ann Ray with five counts ranging from possession of drug paraphernalia to intent to distribute drugs within 1,000 feet of a school. Prior to trial, Ray filed a motion to suppress evidence seized during the execution of a search warrant. After the district court denied the motion, a jury convicted Ray on all the charges. On appeal, Ray contends that the district court erred in denying her motion to suppress. She also contends that the State committed prosecutorial error. Based on our review of the record, we find no reversible error. Thus, we affirm.

FACTS

On August 14, 2018, at approximately 7:22 a.m., a tactical team from the Leavenworth County Sheriff's Office served a search warrant at Ray's residence. Ray lived in the basement of a house on North 16th Street in Leavenworth. The house is located near the David Brewer Elementary School which was named for former United States Supreme Court Justice David J. Brewer. There is little, if any, dispute regarding the facts presented at trial. Rather, the parties dispute whether there was sufficient information presented in the application and affidavit in support of the search warrant to allow the district court judge who issued the warrant to make a finding of probable cause.

The search warrant was obtained from District Court Judge Michael D. Gibbens based on information compiled by the Leavenworth County Sheriff's Narcotics Bureau from June 6, 2017 until August 12, 2018. The investigation was led by Corporal Megan Mance and Sergeant Jason Slaughter. During the 14-month investigation, the officers received information from various sources, performed surveillance of Ray's residence, and conducted two controlled drug buys.

Among other things, the affidavit presented to a district court judge when applying for a warrant to search Ray's residence contained the following information:

• Beginning in June 2017, Corporal Mance and Sergeant Slaughter began receiving tips from several people who had been arrested for drug-related crimes that Ray was actively selling illegal drugs, including methamphetamine, heroin prescription pills, and marijuana.

• On June 6, 2017, James Reed informed law enforcement that Ray purchased prescription pills from his wife and sold them to other people. He also identified Ray's residence and indicated that she lived in the basement. In addition, Reed reported that Ray had sold him methamphetamine on a regular basis at her residence.

• On August 22, 2017, Thomas Eismann-who was arrested for the distribution of methamphetamine-informed law enforcement that Ray was a known associate of Michelle Cabrera, who had been convicted of distribution of illegal drugs.

• On September 6, 2017, law enforcement received a tip from an anonymous citizen that Megan Walker sold prescription pills for Ray. The tipster also identified other individuals known to be associated with the distribution of illegal drugs who were associated with Walker and Cabrera.

• On September 12, 2017, Patricia Perkins reported that Ray and Cabrera had a falling out.

• On January 4, 2018, Officer Derek Garver with the Leavenworth Police Department reported that Ray was residing on North 16th Street with Kenneth Allen. He also indicated that Allen was a known drug user and dealer. The officer further indicated that he observed Elijah McFarlin-who he indicated was another known drug user-with Ray on multiple occasions.

• Also on January 4, 2018, Detective Ryan Hoppe with the Leavenworth Police Department reported that McFarlin was arrested and wanted to talk to Sergeant Slaughter about his knowledge of drug activity. McFarlin told Detective Hoppe that he purchased methamphetamine from Ray and provided her address as well as her phone number. The phone number provided by McFarlin was the same one used by Ray during two subsequent controlled drug buys.

• On January 15, 2018, Corporal Mance and Sergeant Slaughter interviewed McFarlin, who informed them that Ray sells methamphetamine, heroin, prescription pills, guns, and marijuana.

• On January 23, 2018, McFarlin told Corporal Aaron Burchyett of the Leavenworth County Sheriff's Office that he was present in Ray's residence on more than one occasion when she sold illegal drugs. McFarlin further stated that Ray was "currently buying her product from Baller B-Brian Quinley and Crystal Gallagher."

• On January 26, 2018, Alton Johnson also informed Corporal Mance and Sergeant Slaughter that "Baller B" was Ray's methamphetamine supplier.

• On February 12, 2018, Joshua Morse told Sergeant Slaughter that Ray was his aunt and that he had been buying methamphetamine and prescription pills from her for several years. Morse described Ray's basement residence and provided a floor plan to Sergeant Slaughter. Morse also reported that Ray had been in possession of several handguns.

• On March 12, 2018, a confidential informant (No. 4602) provided information about buying marijuana from Ray and described Ray's residence and basement.

• On March 21, 2018, another confidential informant (No. 4604) reported buying and selling methamphetamine for Ray. The informant also provided a layout of Ray's basement residence that was consistent with the one Morse previously provided.

• Also on March 21, 2018, an officer with the Leavenworth Police Department conducted a traffic stop which resulted in the arrest of Ray and Curtis Sult after they were found to be in possession of illegal narcotics.

• On March 22, 2018, confidential informant (No. 4604) provided additional information to law enforcement. The informant stated that Ray was supplying 1 ounce a day to known drug offenders to sell for her.

• On April 5, 2018, yet another confidential informant (No. 4603) reported that Quinley was supplying Ray with methamphetamine.

• On April 10, 2018, Marcus Mack told law enforcement that Ray was selling pills and methamphetamine. In addition, Mack indicated that he saw Ray in possession of 2 ounces of methamphetamine.

• On April 19, 2018, Gallagher told law enforcement that Ray was selling methamphetamine, prescription pills, and heroin.

• During the month of May 2018, law enforcement conducted a controlled purchase of methamphetamine from Ray at her North 16th Street residence.

• On August 9, 2018, Corporal Mance conducted surveillance on Ray's residence. She observed Rickey Lee Saldivar-who she was familiar with from previous encounters and who has prior drug violations-exit Ray's residence and go back inside.

• Within 72 hours prior to law enforcement applying for a search warrant of Ray's residence, a second controlled purchase of methamphetamine from Ray was conducted at her North 16th Street residence.

• During the investigation, it was observed that Sult was residing with Ray. Based on interviews, law enforcement believed that Ray was romantically involved with Sult and that he served as her bodyguard.

• The investigation revealed that Ray rented the basement portion of the house located on North 16th Street.

When the warrant was executed on August 14, 2018, three women-Ray, Celesta Day, and Rebecca Walker-were in the basement of the home. After the tactical team cleared the home, Corporal Mance and Sergeant Slaughter conducted the search. During the search, the women were detained. After Ray was detained, a member of the tactical team searched Ray and found $434 in cash and a cell phone. Law enforcement officers at the scene also observed that Walker appeared to be under the influence of an unidentified substance.

Based on the information obtained during the investigation, Corporal Mance and Sergeant Slaughter believed that Ray lived in the basement bedroom of the house. In searching the bedroom, the officers found clothing, makeup, jewelry, and other items that appeared to belong to a female. In addition, they found "Hello Kitty" memorabilia, which they had been told that Ray collected. The officers also found a storage rental document in the bedroom from August 6, 2018, that listed Ray's address on North 16th Street. Sergeant Slaughter found a purse in the bedroom containing a Kansas identification card for Ray, as well as identification cards for other known drug users. Three cell phones were also found inside the bedroom.

Additionally, the officers found a floral design bag located near the foot of the bed. Significantly, the bag contained a digital scale with methamphetamine residue, small baggies, a small measuring cup, items used for the injection of narcotics, 35 hydrocodone pills, 5.5 amphetamine pills, suboxone strips, fentanyl patches, straws, and 19.65 grams of methamphetamine. Sergeant Slaughter testified at trial that bags like the one discovered in the bedroom of Ray's residence are often referred to as a "'go-to bag" or "'go-bag'" because it contains the items necessary to make a drug deal. Also, Sergeant Mance testified that the methamphetamine found in the bag would have a street value between $500 and $1,000, depending on how much was sold at a time.

In the bedroom, the officers also found a storage bin at the foot of the bed containing ziplock baggies. In another part of the bedroom, the officers found a "Hello Kitty" pipe inside an eyeglass case as well as other drug paraphernalia. In...