State v. Roudybush

• Decision Date: 13 July 1984
• Docket Number: No. 55832,55832
• Citation: 235 Kan. 834,686 P.2d 100
• Parties: STATE of Kansas, Appellee, v. Howard ROUDYBUSH, Appellant.
• Court: Kansas Supreme Court

Page 100

686 P.2d 100

235 Kan. 834

STATE of Kansas, Appellee, v. Howard ROUDYBUSH, Appellant.

No. 55832.

Supreme Court of Kansas.

July 13, 1984.

Syllabus by the Court

1. The proscription set forth in K.S.A. 21-4001(1)(a) is clearly aimed at preventing an unknown and uninvited presence in a private place, either personally or by electronic or photographic devices, to secretly listen to private conversations between other persons, or to furtively observe the personal conduct of such person or persons therein.

2. Neither a police informer who wears a concealed bodypack transmitter while conversing with a suspect in the suspect's home, nor the police officers listening and recording the conversation outside the home with the cooperation of the informer, are in violation of K.S.A. 21-4001(1)(a); under such circumstances the transmission gave the officers no more than the informer could have personally related to the officers without the bodypack, except a more accurate and reliable version of the conversation.

3. Under the provisions of K.S.A. 21-4001(1)(b) all parties to any private conversation must desire to be clothed with the protection of the statute before there can be a violation thereof; any party to a private conversation may waive the right of privacy and the non-consenting party has no Fourth Amendment or statutory right to challenge that waiver.

4. A face-to-face private conversation between a police informer and a suspect is not an "oral communication" as defined by K.S.A. 22-2514 and, thus, it is not necessary to obtain an ex parte court order to intercept such conversation if the informer knowingly consents to the interception.

5. The adequacy of controls used in law enforcement drug buys, including the thoroughness of the search of an informant, affects only the credibility and weight to be given the testimony on the issue rather than the admissibility of same.

6. A person attacking an affidavit for a search warrant on the ground of alleged omissions or misstatements by the officers seeking the warrant, must show that the omissions or misstatements were deliberate and material.

7. The general principles for determining whether charges are multiplicitous are discussed.

8. In a prosecution for possession of marijuana with intent to sell and sale of marijuana, the record is examined and it is held: The district court did not err in (1) denying defendant's motion to suppress evidence of an alleged illegally intercepted conversation and evidence seized in the execution of the search warrant; (2) holding there was no deliberate or material misstatements or omissions by the police officers in obtaining the search warrant; and (3) holding the charges were not multiplicitous.

John C. Humpage of Humpage, Berger & Hoffman, Topeka, argued the cause and was on the brief for appellant.

John D. Watt, County Atty., argued the cause and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

COOK, District Judge Assigned:

This appeal follows defendant's convictions for sale of marijuana and possession of marijuana with intent to sell, both in violation of K.S.A. 1983 Supp. 65-4127b(b)(3) and K.S.A. 1983 Supp. 65-4105(d). Defendant's pretrial motion to suppress evidence was overruled, as were his later objections after trial to alleged Fourth Amendment violations. These same issues are raised on appeal, along with his claim of multiplicity in the two charges.

Howard Roudybush was convicted of possession of marijuana in the District Court of Pottawatomie County in 1980. Two years later his activities again attracted law enforcement attention. During the week of September 17, 1982, while officers from the Pottawatomie County Sheriff's office were conducting visual surveillance of defendant's property, they observed a number of visitors enter the house, stay a short while and leave with packages. One of the vehicles seen at the Roudybush property was identified as belonging to one Steven Brazzle.

On October 1, 1982, Steven Brazzle reported to the Wamego Police Department for a scheduled meeting with his probation officer. He waited for thirty minutes but after his probation officer failed to arrive, Brazzle started to leave. As he was leaving Brazzle was approached by Gerald Schmidt, an investigator for the sheriff's office, who was previously working on the Roudybush surveillance. Schmidt confronted Brazzle with the allegation Brazzle had "heavy drug traffic" through his apartment. Brazzle denied this and, upon request, consented to a search of his apartment. That search revealed marijuana.

After Brazzle was placed under arrest and read his Miranda rights, Schmidt began questioning him about his acquaintance with Howard Roudybush. Only after Schmidt threatened to book Brazzle on the possession charge did Brazzle agree to cooperate. Schmidt explained they needed help to arrest Roudybush for possession of marijuana because they "knew he was dealing, but they couldn't prove it." Brazzle told the officers he knew Roudybush and had been dealing with him since 1979. Brazzle mentioned he had bought marijuana from defendant in the past, knew him to be a large quantity dealer, and had personally seen several pounds of marijuana in Roudybush's house.

At the officers' direction, and after being searched, Brazzle made his first trip to defendant's house to attempt a marijuana buy. Roudybush was not there. Brazzle left a message he would phone at the time Roudybush was expected to return. He joined the officers and returned to the Wamego Police Department. Later, in the presence of the officers, Brazzle phoned Roudybush and asked if he had any "eggs," a code name for marijuana. Brazzle explained over the phone he was having a party the following evening, and made arrangements to return to Roudybush's house for a purchase.

Officers then followed Brazzle to a secluded area in Wamego where they searched him and his vehicle. They found no controlled substances. Brazzle was fitted with a bodypack transmitter to transmit his conversations with Roudybush, which would be recorded by the officers receiving the transmission. He was also given two $20.00 bills, the serial numbers of which were noted by the police. Brazzle returned to his own apartment for his dog, and was again searched by the officers. The entourage proceeded to defendant's house where the officers concealed themselves from view of the house but where they could receive Brazzle's transmissions and observe vehicle traffic to the property.

Brazzle's meeting with defendant began around 11:15 p.m. and lasted approximately fifteen minutes. The officers waiting outside were acquainted with Roudybush from his prior arrest, and were able to recognize his voice in the electronic transmission as that of the person conversing with Brazzle. Officer Schmidt later summarized the substance of the transmission:

"There was a large amount of conversation about dogs [Brazzle had previously purchased his Doberman pinscher pup from defendant] ... and then at a point there was a conversation where I heard the voice I believed to be Howard Roudybush, talking about dealing in drugs, particularly marijuana, and talking of harvest, and that he had recently harvested his own crop, and that he was going to be selling out of state. That he's now considered one of the bigger dealers in the area. Numerous dealers had been cut out in Manhattan. That although he would be getting some stuff from him that's not marijuana, I believe he said marijuana, or pot, that he wished that Brazzle not tell anyone that he got it from him. That he was keeping it quiet. That this weekend, his homegrown crop was going to be going out of state, that he was going to be getting rid of it. And then he proceeded to show him something, which I heard Brazzle making statements, ooh's and ah's, and then there was talk of how much you want for a fourth. And Roudybush I believe said, $40.00 for an ounce, or something to that effect, and there was more conversation. And there was more conversation about dogs, and shortly thereafter, Brazzle left the residence."

The police officers followed Brazzle to a location two miles west of defendant's residence, and there searched him. They did not find the two $20.00 bills Brazzle had earlier been given, but did find a bag of dried green vegetation which they believed to be marijuana. Brazzle told the officers back at the police station that he had given the $20.00 bills to Roudybush in exchange for the bag of marijuana. Brazzle described the location of marijuana in and around defendant's house.

At approximately 2:00 a.m. on October 2, 1982, Officer Schmidt appeared before District Magistrate O.F. Maskil and requested a search warrant for defendant's home. The transmitted conversation had not yet been transcribed, and the tape recording itself was not played to the magistrate. Schmidt summarized the foregoing events based on his memory. He requested authority to seize marijuana, other controlled substances, drug paraphernalia and equipment, the two marked $20.00 bills, and any other fruits and instrumentalities of the crime. The magistrate found probable cause and issued the search warrant.

The police officers executed the search warrant at 3:30 a.m. After they knocked on defendant's front door and identified themselves, Roudybush attempted to burn a quantity of marijuana in a large woodburning stove. The fire was extinguished and the subsequent search revealed a large quantity of marijuana both in the house and growing on the grounds outside. One of the marked $20.00 bills was found in defendant's billfold.

Defendant was charged with the sale of marijuana occurring on October 1, and with possession of marijuana with intent to sell, occurring on October 2. A preliminary hearing was held on November 15, 1982. Before trial, defendant moved to suppress his intercepted oral communications with Brazzle, the search warrant and all evidence seized...