State v. Schoonover

• Decision Date: 28 April 2006
• Docket Number: No. 90,360.,90,360.
• Citation: 133 P.3d 48
• Parties: STATE of Kansas, Appellee, v. Scott E. SCHOONOVER, Appellant.
• Court: Kansas Supreme Court

133 P.3d 48

STATE of Kansas, Appellee, v. Scott E. SCHOONOVER, Appellant.

No. 90,360.

Supreme Court of Kansas.

April 28, 2006.

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Patrick H. Dunn, assistant appellate defender, argued the cause and was on the briefs for appellant.

Ty Kaufman, county attorney, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

The opinion was delivered by LUCKERT, J.:

Scott E. Schoonover petitions for review of the Court of Appeals' decision to affirm his convictions on seven counts arising from the manufacture and possession of methamphetamine. Several of the issues which Schoonover raises relate to multiplicity, lesser included offenses, and double jeopardy. These arguments require us to examine our jurisprudence regarding multiplicity and determine whether the single act of violence/merger doctrine is the test to be applied to determine whether a defendant has been twice placed in jeopardy in violation of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Schoonover also raises issues of multiple acts, search and seizure, and an issue of first impression for this court of whether a defendant can be guilty of possession of a controlled substance without the appropriate drug tax stamp if the defendant did not have actual possession for a sufficient period of time to allow an opportunity to obtain and affix the stamps.

FACTS

Schoonover does not contest the facts as stated by the Court of Appeals.

"On May 11, 2001, at 8:30 p.m., Schoonover was found passed out in the driver's seat of a 1982 Ford Escort. The vehicle was setting in the roadway just past an intersection in rural McPherson County. The farmer who found Schoonover walked up near the driver's side door and tried to get his attention by yelling at him. The farmer was 5 feet from the vehicle when he tried to get Schoonover's attention; he never got any closer. When Schoonover did not respond, the farmer called EMS from his cell phone.

"Vicki Johnson, a volunteer with the Inman, Kansas, fire department responded to the scene. She observed Schoonover leaning back in the seat with his eyes closed. The engine was still running. When Johnson tried to wake Schoonover, she noticed that he had an open beer bottle between his legs. Johnson turned the engine off but was still unable to wake Schoonover.

"Next to arrive at the scene was Inman police officer Richard Langdon. Langdon testified that he arrived at the scene at approximately 8:35 p.m. Langdon testified that he observed a cooler on the front floorboard, coffee filters in the front seat, and a Bud Ice long-neck beer bottle sitting between Schoonover's legs.

"Langdon removed the beer bottle and shouted at Schoonover, who awoke when he saw a police officer standing outside his vehicle. Schoonover was asked to exit the vehicle after attempting to reach under the seat. When Langdon opened the door of the vehicle he `smelled a mild odor of ammonia.' At this time, Schoonover was placed under arrest for transporting an open container.

"After exiting the vehicle, Schoonover stated that he was cold and asked for his shirt which was located on the passenger seat of the vehicle. Langdon reached in through the open passenger window to retrieve the shirt and again smelled what he `believed to be anhydrous ammonia' coming from the floorboard where the cooler was located.

"Langdon was very familiar with the smell of anhydrous ammonia because he `deal[s] with it daily at the anhydrous Co-op station.' Langdon again smelled the anhydrous ammonia when he opened the passenger door to look for Schoonover's identification. This time the smell took his breath away and burned his eyes.

"Captain Hoffman of the McPherson Sheriff's Department arrived to take command of the scene. Hoffman was a 25-year veteran with specific training and experience with respect to drugs and the manufacture of methamphetamine. Hoffman testified that as he approached the driver's side of the vehicle he could smell anhydrous ammonia. When he walked around to the passenger side of the vehicle, he detected a `very strong odor' of anhydrous ammonia. Inside the vehicle in plain view of Hoffman were coffee filters and Coleman fuel. Believing that the vehicle might be a `meth lab,' Hoffman contacted Detective Frazier of the McPherson Sheriff's Department.

"When Frazier arrived at the scene, he noted the anhydrous ammonia smell coming from the vehicle. He also saw the coffee filters and Coleman fuel inside the car. Based upon these observations and his discussions with the officers at the scene, Frazier applied for and obtained a search warrant.

"The search of the vehicle resulted in the following discovery. The cooler contained a bag of ice, a canning jar with a light blue liquid and a white substance 1 inch deep in the bottom of the jar, a 3-quart insulated cooler with anhydrous ammonia located inside, and three bottles of Bud Ice beer. The brand of beer was identical to the opened beer found between Schoonover's legs.

"Next, a backpack was found in the back seat which contained a bag of rock salt, a 1-quart bottle of muriatic acid, a quart canning jar with coffee filters inside, three empty canning jars and lids, and an assortment of plastic spatulas and spoons. A continuing search of the car uncovered a pair of brown boots; each boot contained a pint bottle of gas line antifreeze. Two cans of Coleman fuel were found in the rear cargo area of the vehicle.

"Inside a duffle bag located on the back seat the following items were found: six lithium batteries, a twin beam scale, a glass Pyrex square bowl, a metal kitchen strainer, folding knives, a Zip-Loc bag with vegetation and seeds inside, two mixing spoons, two pairs of pliers, a pair of forceps, Zip-Loc bags, single-edge razor blades, a razor blade scraper, a box of coffee filters, a coffee mill with a white powder inside, a drinking cup containing plastic bags and two white tablets, and a plastic bag containing red powder and a `rocky substance.'

"Also found inside the vehicle were rolling papers, a plastic bag containing a `green leafy substance,' a lithium battery, a box of coffee filters, and a brown pill bottle containing a white powder.

"Later testing revealed the following results: the brown pill bottle contained 27 grams of ephedrine or pseudoephedrine, the `green leafy substance' was found to be marijuana, and the canning jar with the blue liquid and white substance was found to contain methamphetamine. The net weight of the methamphetamine was approximately 26 grams.

"Schoonover was charged in district court with numerous offenses, and his motion to suppress evidence was denied. Following a jury trial, Schoonover was found guilty of possession of ephedrine as a precursor drug, possession of anhydrous ammonia in an unapproved container, possession of drug paraphernalia with intent to manufacture, possession of marijuana, possession of methamphetamine, manufacture of methamphetamine, and possession of methamphetamine without the appropriate tax stamps. Schoonover received a controlling sentence of 158 months' imprisonment." State v. Schoonover, No. 90,360, ___ Kan.App. ___, 99 P.3d 1152, 2004 WL 2496765 unpublished opinion filed November 5, 2004.

ISSUES PRESENTED

Schoonover petitioned for review and we granted his petition. We have reframed the issues he raises as: (1) Did the multiple convictions arising from the same course of conduct in obtaining the materials for and engaging in the various steps of manufacturing methamphetamine violate Schoonover's right to be protected from double jeopardy? (2) Are charges of possession of drug paraphernalia with intent to manufacture and possession of methamphetamine lesser included offenses of manufacture of methamphetamine? (3) Under the facts of the case, where there were multiple items of drug paraphernalia which could have supported the defendant's convictions but the jury was not given a multiple acts instruction, was the defendant's right to a unanimous verdict violated? (4) Did the evidence establish sufficient opportunity to affix a drug tax stamp? (5) Should the court have instructed the jury that the defendant must have had an opportunity to affix the drug tax stamp? (6) Were there material omissions in the affidavit for the search warrant which rendered the search unreasonable? (7) Was the search warrant issued by a neutral and detached magistrate and was it valid? (8) Did the officers exceed the scope of the search warrant by seizing items not specifically listed in the warrant and opening a duffle bag? and (9) Was there cumulative error?

Schoonover did not seek review of the Court of Appeals' decision to vacate his sentence on the count of manufacturing methamphetamine, finding that State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004), applied. The Court of Appeals remanded for resentencing to a drug severity level 3 felony. That portion of the decision is not subject to our review.

ANALYSIS

I. Double Jeopardy/Multiplicity

The defendant's first argument is that many of his drug convictions are multiplicitous and therefore in violation of his right not to be held in double jeopardy for an offense. The Court of Appeals panel relied on State v. Groves, 278 Kan. 302, 305-08, 95 P.3d 95 (2004) (single act of violence paradigm concerning multiplicity unaffected by 1998 amendments to K.S.A. 21-3107), in holding that multiplicity claims must be analyzed under both the common-law elements test and the "single act/merger" test. Schoonover, ___ Kan.App. ___, 99 P.3d 1152, 2004 WL 2496765 at * * ___-___. The panel then found that none of the defendant's convictions were multiplicitous because the elements of the offenses were not the same and...