State v. Walter, 54273
Decision Date | 21 October 1983 |
Docket Number | No. 54273,54273 |
Citation | 670 P.2d 1354,234 Kan. 78 |
Parties | STATE of Kansas, Appellee, v. John WALTER, Appellant. |
Court | Kansas Supreme Court |
Syllabus by the Court
In a prosecution for possession of marijuana with intent to sell and possession of marijuana, the record is examined and it is held: The district court did not err in (1) denying defendant's motion to suppress the evidence seized in the execution of the search warrant; (2) refusing to issue a protective order limiting the State's cross-examination of the defendant; and (3) refusing to grant defendant a new trial.
Lawrence P. Ireland of Ireland, Enright & Baird, Topeka, argued the cause, and B.L. Pringle, Topeka, and Lynn E. Martin, Paola, were on the briefs for appellant.
Herman A. Loepp, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the briefs for appellee.
John Walter was convicted of possession of marijuana with intent to sell (K.S.A.1982 Supp. 65-4127b[b ] and possession of drug paraphernalia (K.S.A.1982 Supp. 65-4152). On appeal the Court of Appeals reversed the convictions and remanded the case for a new trial. State v. Walter, 8 Kan.App.2d 461, 660 P.2d 574 (1983). The matter is before us on petition for review.
The Court of Appeals held the district court erred in denying defendant's motion to suppress all evidence seized in the execution of a search warrant. By virtue of this determination, other issues raised on appeal were not reached by the Court of Appeals.
We shall first discuss defendant's challenges to the affidavit on which the search warrant was issued. The search warrant was issued July 23, 1981 on the affidavit of Don Hermreck, then Anderson County Sheriff. The affidavit states:
The search warrant was executed the same day. A large quantity of growing marijuana (when cut by deputy sheriffs the marijuana filled a county dump truck) as well as a plastic planting flat with fitted individual seedling containers and a trowel were seized. The marijuana plants were, for the most part, six feet or greater in height, were planted in rows and occupied approximately three-fourths of an acre. The planting and cultivation equipment was located in the marijuana plot.
Subsequent testimony of the sheriff (presented at preliminary hearing and at the suppression hearing) differed from the affidavit in a number of respects--primarily in the areas of quantity and size of marijuana plants viewed prior to preparation of the affidavit and the number of informant contacts involved.
After having heard the evidence and with full opportunity to observe the witnesses' demeanor, the trial court concluded:
Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), concerns the issue of the type of preliminary showing a criminal defendant must make in order to be entitled to an evidentiary hearing on his challenge to the legal sufficiency of the affidavit supporting a search warrant. In Franks, the United States Supreme Court held:
438 U.S. at 171-72, 98 S.Ct. at 2684-85.
Franks was followed by this court in State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978). In the case before us, of course, defendant was afforded a full evidentiary hearing.
The Court of Appeals, relying on Franks and Jacques, stated:
"We may accept the trial court's finding that the misstatements were not deliberate, but their abundance, detail, and the breadth of their departure from fact, all lead us to conclude that they reflect at least a reckless disregard for the truth." 8 Kan.App.2d at 463, 660 P.2d 574.
There was considerable confusion in the questions propounded to the sheriff relative to what he viewed and from which public road the view was made as well as the number of informant contacts. The trial court's finding "the affiant's sworn statements were not made in deliberate or reckless disregard of the truth" is supported by substantial evidence and may not be disturbed on appellate review.
The Court of Appeals held the affidavit stripped of erroneous statements did not constitute probable cause to support the issuance of the search warrant. We...
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