State v. Rose

• Decision Date: 23 June 1983
• Docket Number: No. 54040,54040
• Citation: 665 P.2d 1111,8 Kan.App.2d 659
• Parties: STATE of Kansas, Appellee, v. Gregory Blaine ROSE, Appellant.
• Court: Kansas Court of Appeals

Page 1111

665 P.2d 1111

8 Kan.App.2d 659

STATE of Kansas, Appellee, v. Gregory Blaine ROSE, Appellant.

No. 54040.

Court of Appeals of Kansas.

June 23, 1983.

Review Denied Sept. 8, 1983.

Syllabus by the Court

1. The "two-pronged test" in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), used to determine whether an informant's tip establishes probable cause for issuing a search warrant, is abandoned in Kansas.

2. A judge, in determining whether to issue a search warrant, should consider the "totality of the circumstances" presented and make a practical, common-sense decision whether there is a fair probability that contraband or evidence of a crime will be found in that particular place.

3. Our scope of review of whether there was probable cause to issue a search warrant is to ensure that the judge who issued the warrant had a substantial basis for concluding that probable cause existed.

4. Possession of marijuana is having control over it with knowledge of and intent to have such control, and it may be proved by circumstantial evidence.

5. Possession may be immediate and exclusive, jointly held with another or constructive, as when marijuana is kept by the accused in a place where he has some measure of access and right of control.

6. The record on appeal is examined in a criminal action and it is held: (1) that the affidavit for a search warrant furnished probable cause for the issuance of the warrant; (2) that the record contains sufficient evidence from which a rational factfinder could have found the defendant guilty beyond a reasonable doubt of possession of marijuana with the intent to sell; (3) that the trial court did not err in its rulings concerning the defendant's "usable" versus "nonusable" marijuana argument; and (4) that probable cause existed to arrest the defendant at the time he committed the act that led to his conviction for resisting arrest.

J. Steven Schweiker, Overland Park, for appellant.

Joseph E. Cosgrove, Jr., Asst. Dist. Atty., Dennis W. Moore, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before SWINEHART, P.J., and ABBOTT and PARKS, JJ.

ABBOTT, Judge:

This is a direct appeal from convictions for resisting arrest (K.S.A. 21-3808), possession of marijuana with intent to sell (K.S.A. 65-4105[d ]; K.S.A. 65-4127b[b ] ), and conspiracy to sell marijuana (K.S.A. 65-4105[d ]; K.S.A. 65-4127b[b ]; K.S.A. 21-3302).

Defendant was charged with a number of crimes that allegedly occurred over an eight-month period. He was acquitted of two counts of conspiracy to commit murder of two police officers and one count of conspiracy to commit arson of the Overland Park Justice Center. Those conspiracies were alleged to have commenced on November 26, 1980.

On December 15, 1980, an Overland Park police officer observed defendant riding a motorcycle during which time, in the officer's opinion, the defendant committed three traffic offenses. It was nighttime and the officer followed defendant to his home where he parked the motorcycle at the side of the house. During a pat down search, the officer found two semiautomatic handguns in the defendant's waistband and placed defendant under arrest for carrying concealed weapons. A scuffle ensued and defendant was also charged with resisting arrest. At trial, defendant presented evidence that the pistols were in a compartment of the motorcycle until he stopped on his own property, at which time he placed them on his person to take them into his home. The jury acquitted defendant of carrying a concealed weapon, but convicted him of resisting arrest. Defendant appeals from that conviction, contending the arrest was unlawful and that he was entitled to resist it.

Defendant was also charged with and convicted of possession of marijuana with the intent to sell and conspiracy to possess marijuana with the intent to sell. The conspiracy count allegedly occurred between the spring of 1980 and January 17, 1981. The possession with intent to sell allegedly occurred on January 18, 1981. Defendant attacks the sufficiency of the evidence to support his conviction of possession with intent to sell, the sufficiency of the affidavit used as the basis for a search warrant, and the denial of his motion to separate what he alleges to be "usable" from "nonusable" marijuana.

I. Search Warrant.

Defendant argues that the affidavit used as the basis for a search warrant did not adequately show the reliability of the informant nor that the information from the informant was reliable. The State argues that defendant had no reasonable expectation of privacy in the premises and thus no standing to raise the issue; further, that the informant's reliability was established by his providing police with accurate information concerning prior criminal conduct by himself and defendant, and the reliability of the informant's information was established by his declaration against his penal interest.

The trial court did not consider the "legitimate expectation of privacy issue." It appears the issue has considerable merit, but we need not decide it for we believe the affidavit to be sufficient in view of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 75 L.Ed.2d ---- (1983), in which the "two-pronged test" under Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) has been abandoned. In its place, the United States Supreme Court has adopted the traditional probable-cause determination of the "totality of the circumstances"; i.e., whether based on all the circumstances set forth in the affidavit there is a fair probability that contraband or evidence of a crime will be found in a particular place.

In Gates, a police department received an anonymous handwritten letter which read as follows:

"This letter is to inform you that you have a couple in your town who strictly make their living on selling drugs. They are Sue and Lance Gates, they live on Greenway, off Bloomingdale Rd. in the condominiums. Most of their buys are done in Florida. Sue his wife drives their car to Florida, where she leaves it to be loaded up with drugs, then Lance flys down and drives it back. Sue flys back after she drops the car off in Florida. May 3 she is driving down there again and Lance will be flying down in a few days to drive it back. At the time Lance drives the car back he has the trunk loaded with over $100,000.00 in drugs. Presently they have over $100,000.00 worth of drugs in their basement.

"They brag about the fact they never have to work, and make their entire living on pushers.

"I guarentee [sic ] if you watch them carefully you will make a big catch. They are friends with some big drugs dealers, who visit their house often.

"Lance & Susan Gates

Greenway

in Condominiums"

The police were able to verify that Mr. Gates had reservations to West Palm Beach, Florida, on May 5. Surveillance disclosed that when Mr. Gates arrived in West Palm Beach, he spent the night in a motel room registered to Susan Gates. The following morning, he left the motel with an unidentified woman. They were in a Mercury automobile bearing license plates registered to a Hornet station wagon owned by Gates and proceeded north on an interstate frequently used by travelers going to the Chicago area. A search warrant was issued for the Gates' residence and their automobile. The search disclosed 350 pounds of marijuana in the trunk of the car and marijuana, weapons and other contraband in the Gates home. The trial court ordered suppression of the items and the decision was affirmed by the Illinois appellate courts.

In adopting the totality of the circumstances approach to ascertain whether the evidence presented to obtain a search warrant presents probable cause to believe contraband or evidence is located in a particular place, the United States Supreme Court stated:

"This totality of the circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific 'tests' be satisfied by every informant's tip. Perhaps the central teaching of our decisions bearing on the probable cause standard is that it is a 'practical, nontechnical conception.' Brinegar v. United States, 338 U.S. 160, 176 [69 S.Ct. 1302, 1311, 93 L.Ed. 1879] (1949). 'In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Id. at 175 . Our observation in United States v. Cortez, 449 U.S. 411, 418 [101 S.Ct. 690, 695, 66 L.Ed.2d 621] (1981), regarding 'particularized suspicion,' is also applicable to the probable cause standard:

" 'The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.'

....

".... Finely-tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision. While an effort to fix some general, numerically precise degree of certainty corresponding to 'probable cause' may not be helpful, it is clear that 'only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.' [Citations omitted.]

....

".... The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the...