State v. Ulrey

• Decision Date: 29 May 2009
• Docket Number: No. 98,411.,98,411.
• Citation: 208 P.3d 317
• Parties: STATE of Kansas, Appellee, v. Daniel S. ULREY, Appellant.
• Court: Kansas Court of Appeals

208 P.3d 317

STATE of Kansas, Appellee, v. Daniel S. ULREY, Appellant.

No. 98,411.

Court of Appeals of Kansas.

May 29, 2009.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for the appellant.

Benjamin J. Fisher, senior assistant district attorney, Keith E. Schroeder, district attorney, and Stephen N. Six, attorney general, for the appellee.

Before GREENE, P.J., PIERRON and STANDRIDGE, JJ.

PIERRON, J.

Daniel S. Ulrey appeals from his convictions of possession of anhydrous ammonia with the intent to manufacture a controlled substance and possession of drug paraphernalia with the intent to manufacture a controlled substance. Ulrey contends the evidence used against him was seized by an unlawful search of the vehicle in which he was riding. Ulrey also contends the trial court improperly admitted hearsay laboratory test results at trial. We affirm.

On September 22, 2004, Deputy Matt Tatro of the Reno County Sheriff's Department was on routine patrol. At approximately 9 a.m., he saw a vehicle pass him driven by Barbara Jordan. He knew Jordan from two recent arrests for driving on a revoked license. Deputy Tatro confirmed with the dispatcher that Jordan's driver's license was still revoked. He activated his emergency lights, but Jordan continued driving for approximately one half mile and pulled into the driveway of her home.

Jordan exited her car immediately and made contact with Deputy Tatro in front of the patrol car. Immediately thereafter, two male passengers exited Jordan's vehicle as well. Deputy Tatro asked the men, who were walking towards him, to stand at the front of Jordan's vehicle. Jordan admitted right away that she knew she was not supposed to be driving. Because he was outnumbered, Deputy Tatro placed Jordan in the backseat of the patrol car and then contacted the two men. The men were identified as Jason Wright and Daniel Ulrey. Wright had been sitting in the front passenger seat and Ulrey had been in the backseat on the driver's side. Neither man had any outstanding warrants. Because both men also had suspended driver's licenses, Deputy Tatro, after consulting with Jordan, advised the men they could stay at Jordan's house or use her home phone to call for a ride.

After releasing the two men, Deputy Tatro went to Jordan's vehicle to retrieve her purse so it could be taken to the detention center per police department policy. Deputy Tatro testified that he previously told Jordan he would retrieve her purse from the car and she agreed that he could do that. Later, Deputy Tatro testified he did not remember whether he asked Jordan for consent to retrieve her purse, or whether he simply told her he was going to get it from the car.

Looking in the driver's window, Deputy Tatro saw the purse on the floorboard on the passenger side of the car. He walked around the car to the passenger side to get it. Before opening the door, he noticed an odor of anhydrous ammonia, which he had dealt with in the past, coming from the car. Without opening the car door, Deputy Tatro also saw a jug on the floor in the back seat, and the top of a box of salt and a kitchen strainer in a crate in the back seat. He opened the passenger door, at which time the odor of anhydrous ammonia became overwhelming. Deputy Tatro and his back-up officer immediately put Wright and Ulrey in handcuffs. They were apparently still at the vehicle. The officer found a baggie of a white powdery substance on Wright after a pat-down search.

Deputy Tatro returned to Jordan's vehicle and removed a red and white one-gallon water jug. Inside the jug was a substance that smelled like anhydrous ammonia. He found a red milk crate in the back passenger seat containing various items, including a box of Morton salt, a baggie with peeled lithium batteries, and an ice cream tub with coffee filters containing residue. Inside another bag, he found a glass jar which contained a dark liquid. The crate also contained a wooden mixing spoon with residue. A search of the vehicle's trunk resulted in the discovery of an 18-quart cooler with camping fuel, two Mason jars with a purple and bluish liquids, and another mixing spoon. All of these items are commonly used in the manufacture of methamphetamine.

Deputy Tatro Mirandized Ulrey, who agreed to cooperate. Ulrey indicated he did not know what items were in the vehicle other than his guitar, and he had caught a ride to go fishing and drink beer. The was no beer or fishing equipment in the vehicle. At the jail, other baggies were found on Wright's person, which field-tested positive for methamphetamine. Nothing was found on Ulrey's person when he was searched at the jail.

In October 2004, Ulrey was charged with one count of manufacture of methamphetamine, in violation of K.S.A. 65-4159 or, in the alternative, one count of attempted manufacture of methamphetamine, in violation of K.S.A. 65-4159 and K.S.A. 21-3301; one count of possession of ephedrine with the intent to manufacture a controlled substance, in violation of K.S.A. 65-7006; one count of possession of lithium with the intent to manufacture a controlled substance, in violation of K.S.A. 65-7006; one count of possession of anhydrous ammonia with the intent to manufacture a controlled substance in violation of K.S.A. 65-7006; felony possession of drug paraphernalia with the intent to manufacture a controlled substance, in violation of K.S.A. 65-4152(a)(3); and one count of possession of methamphetamine, in violation of K.S.A.2004 Supp. 65-4160.

At the preliminary hearing, Deputy Tatro testified as set forth above. He testified that based on his training and experience, the items he found in the vehicle were consistent with the manufacture of methamphetamine. He also testified that the residue on the coffee filters in the backseat contained a finished product of methamphetamine and lithium. The only objection made during this testimony was an objection based on foundation.

Ulrey was bound over for trial on all charges. He filed a motion to suppress the physical evidence found in Jordan's vehicle and any statements he made to officers. Ulrey asserted he was unlawfully detained as a passenger of the car for a prolonged period for what was originally a traffic infraction. Ulrey also claimed that Deputy Tatro unlawfully entered Jordan's vehicle without consent or a search warrant. Finally, Ulrey claims he was not properly Mirandized and, therefore, any statements he made were inadmissible as he did not voluntarily waive his Miranda rights.

Deputy Tatro testified again at a June 2006 suppression hearing. His testimony largely mirrored that which he gave at the preliminary hearing. He testified that he briefly detained Ulrey and Wright after arresting Jordan. Once he had confirmed they had no outstanding warrants, he told them they were released and could go into Jordan's house. Deputy Tatro did not recall how long this took.

Deputy Tatro testified he walked to the car to retrieve Jordan's purse, saw it on the passenger side floorboard, and walked around to the passenger side of the vehicle. The windows of the vehicle were down and he smelled what he recognized to be anhydrous ammonia. From outside the car, he saw a red milk crate in the backseat with a kitchen strainer and a box of Morton salt and a water jug. At this point Deputy Tatro and another officer handcuffed Ulrey and Wright based on the officers' belief that Ulrey and Wright were involved in the manufacture of methamphetamine. Ulrey was read his Miranda rights. Deputy Tatro then searched the car based on probable cause and the additional items were found.

After hearing the evidence, the district court denied the motion to suppress, finding the initial stop was lawful and Deputy Tatro had done nothing improper.

The case proceeded to a jury trial on August 23 and 24, 2006. The arresting and crime scene officers testified regarding the traffic stop and ultimate search of the vehicle. In addition, Chris Riddle, a forensic chemist for the Kansas Bureau of Investigation (KBI), testified for the State. Riddle, without objection, presented a PowerPoint presentation about the process of manufacturing methamphetamine. Riddle also testified that each report prepared by a KBI chemist is reviewed by another scientist in the KBI laboratory. The items in this case were tested by KBI scientist Krista Rankin, and Riddle reviewed her findings and reports. Riddle testified that the notes and reports were kept in the ordinary course of business at the KBI.

As Riddle began testifying about Rankin's report, Ulrey objected on grounds of hearsay and foundation. The objection was denied. Ulrey also lodged a continuing objection to Riddle's testimony about the actual items tested "pursuant to [the] pretrial motion." This continuing objection also related to the subsequent testimony of the law enforcement officers. Riddle identified various items collected, including salt; lithium; methamphetamine, pseudoephedrine, and lithium in a condition consistent with completion of a partial state of the manufacturing process; sulfuric acid; bottles of solvents typically used in the manufacturing process; and various exhibits containing methamphetamine, pseudoephedrine, and other manufacturing components consistent with the gassing stage of manufacture of methamphetamine.

The jury ultimately acquitted Ulrey of all charges except possession of anhydrous ammonia and possession of drug paraphernalia, both with the intent to manufacture methamphetamine. His subsequent motions for judgment of acquittal and for new trial were denied. Based upon Ulrey's criminal history score of I, he was sentenced to 12 months' probation with an underlying prison term of 11 months on each count, to run concurrently.

Within 5 months of his original sentencing, the State filed a motion to revoke Ulrey's probation on the grounds he had tested positive for methamphetamine use several times during his probation. Ulrey's probation...