State v. JenningsState v. Jennings
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Kondwani Jennings appeals his convictions of possession of cocaine with intent to sell in violation of
In addition, Jennings contends that his conviction for the tax stamp violation should be reversed because the State failed to prove that he possessed more than 1 gram of cocaine. We disagree and find that the evidence set forth by the State sufficiently showed that Jennings possessed more than 1 gram of cocaine to which he failed to affix a drug tax stamp. Accordingly, we affirm the trial court’s decision.
On December 20, 2001, three police officers, including Officers Doug Garman and Bruce Voight, executed a search warrant at a residence located at 1310 Southwest Lane in Topeka. The warrant gave tire officers authority to search for drugs and for a resident named Curtis Jones, also known as Curtis Mayfield. The officers arrived at the residence around 6 p.m. but spent some time outside detaining individuals. During the search of the residence, the officers found four handguns and marijuana.
The officers each spoke with one of the men. Garman spoke with Jennings and advised him that the officers were searching tire residence. Garman asked Jennings if he had any weapons or anything illegal on him. Jennings responded that he did not. Garman then asked Jennings for permission to search him, and Jennings consented. Garman testified that if Jennings had not given his consent to search, Garman would have allowed him to walk away from the residence. After Jennings consented to the search, Garman asked him to turn around away from Garman and keep his hands where they could be seen.
While Garman was speaking with Jennings, Officer Voight was talking to one of the other men whose last name was Dudley. Voight indicated that he would not have allowed Dudley to walk away without doing a patdown of him. Voight stated that the men were wearing heavy coats, the officers had found four guns inside the residence, and he was not going to give Dudley the opportunity to walk away and then pull out a gun. Nevertheless, Voight testified that if he had asked consent to search Dudley s pockets and Dudley had refused, he would not have searched him.
During the search of Jennings, Garman discovered a plastic bag that contained several individually wrapped rocks that appeared to be cocaine. No drug tax stamp was affixed to the substance taken from Jennings. The plastic bag actually contained 10 individually wrapped rocks which weighed a total of 3.28 grams. Later testing of one of the rocks was positive for cocaine.
After Garman discovered the plastic bag on Jennings, Jennings was then interviewed by Voight in the southeast bedroom of the residence. Voight read Jennings his
Miranda
warnings. When Voight asked Jennings if he used cocaine, Jennings responded that he did not. Nevertheless, when Voight asked Jennings if he in
In October 2002, Jennings was charged with possession of cocaine with intent to sell in violation of
On the same day of the suppression hearing, the trial court conducted a short bench trial where, by agreement of the parties, it incorporated the testimony from the suppression hearing and heard additional testimony from Voight. The trial court found Jennings guilty of the charged offenses and sentenced him accordingly. The trial court suspended Jennings’ sentence and imposed an 18-month period of probation supervised through Community Corrections.
Suppression of Evidence
First, Jennings argues that die trial court erred in denying the motion to suppress. When reviewing a motion to suppress evidence, the appellate court determines whether the factual underpinnings of the trial court’s decision are supported by a substantial competent evidence standard. However, the ultimate legal conclusion drawn from those facts is a legal question requiring the appellate court to apply a de novo standard of review. The appellate court does not reweigh the evidence. State v. Vandervort, 276 Kan. 164, 169, 72 P.3d 925 (2003).
The Fourth Amendment to the United States Constitution protects an individual against “unreasonable searches and seizures.” State v. Morris, 276 Kan. 11, 17, 72 P.3d 570 (2003). “The Fourth Amendment Applies to all seizures of tire person, including seizures that involve only a brief detention short of traditional arrest.’ [Citation omitted.] This requires an officer to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. [Citations omitted.]” State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985).
Nevertheless, a voluntary encounter between a police officer and a citizen does not constitute a seizure and does not implicate the Fourth Amendment. State v. Crowder, 20 Kan. App. 2d 117, Syl. ¶ 2, 887 P.2d 698 (1994). Noting that an officer’s request for consent to search can constitute part of a voluntary encounter, tire United States Supreme Court in Florida v. Bostick, 501 U.S. 429, 434-35, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991), stated:
“[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, [citations omitted]; ask to examine the individuals identification, [citations omitted]; and request consent to search his or her luggage, [citation omitted] — as long as the police do not convey a message that compliance with their requests is required.”
Moreover, “ ‘[s]o long as a reasonable person would feel free “to disregard the police and go about his business,” [citation omitted], the encounter is consensual and no reasonable suspicion is required.’ ” State v. Reason, 263 Kan. 405, 410-11, 951 P.2d 538 (1997) (quoting Florida v. Bostick, 501 U.S. at 434).
An officer has seized a person when there is an application of physical force or a show of authority which, under the totality of
To support his position that he was seized by the police officers, Jennings cites State v. Wilson, 30 Kan. App. 2d 100, 39 P.3d 668, rev. denied 273 Kan. 1040 (2002). There, the police executed a search warrant at a home where Wilson was visiting a friend. The warrant did not authorize a search of all individuals present at the residence. Upon arriving at the residence, the officers ordered the occupants to get down on the floor. Wilson complied with the order and was handcuffed. Wilson was not given any Miranda warnings. After the house was secured, an officer asked Wilson if he had any drugs on him, and Wilson replied that he did not. The officer testified that Wilson eventually consented to a search of his person whereupon crack cocaine was found in his pocket.
Before trial, Wilson moved to suppress the crack cocaine, arguing that he had been illegally detained and that his consent to search was not voluntary. The trial court denied the motion, finding that Wilson’s consent was voluntary. On appeal, this court reversed the trial court’s decision on the motion. Finding that Wilson had been illegally seized, this court noted that the officer had testified that Wilson did not pose a reasonable threat, that he did not observe drugs or contraband near Wilson, and that he did not reasonably suspect Wilson was involved in criminal activity. Therefore, the officer had not been justified in continuing to detain Wilson after the house was secure. 30 Kan. App. 2d at 106. This court further found that “even if Wilson consented to the search, no sufficient intervening events, including Wilson’s consent or the officer’s notification, purged the taint of the illegal detention.” 30 Kan. App. 2d at 108.
The instant case is clearly distinguishable from
Wilson.
Here, Jennings was not inside the house when the search warrant was executed. Instead, he voluntarily approached the residence while, unknown to him, the police were inside executing a search warrant.
In United States v. Barnes, 496 A.2d 1040 (D.C. App. 1985), an officer approached the defendant, whom he had observed loitering outside a store in a high-crime area. The officer asked the defendant to remove his hands from his pockets and then proceeded to ask him two questions. Noticing a bulge in the individual’s stomach area, tire officer subsequently recovered a revolver from the defendant’s pocket. The District of Columbia Court of Appeals stated that the officer’s request for the defendant to remove his hands from his pockets, followed by the two questions and the defendant’s voluntary answers, met the Supreme Court test for a preseizure, consensual encounter. 496 A.2d 1041-45; see also People v. Hardrick, 60 P.3d 264, 269 (Colo. 2002) (“[A]ny time an officer is engaged in a valid search or arrest and a third party inserts himself into the situation, the officer may ask the interloper to show his hands.”); State v. Nettles, 70 Wash. App. 706, 710-12, 855 P.2d 699 (1993) (officer’s request for suspect to remove hands from pockets during course of consensual encounter did not turn encounter into seizure).
We agree with the above cases and find that the request for the men to remove their hands from their pockets did not turn this voluntary encounter into a seizure. We further find that the officers’ behavior up to and including the time that Officer Carman asked Jennings’ consent to search his person would not communicate to a reasonable person that he or she was not free to leave the premises. Thus, there had been no seizure of Jennings at the time Garman asked his consent to search. As a result, we agree
Drug Tax Stamp Violation
Finally, Jennings contends that his conviction for a drug tax stamp violation should be reversed because the State failed to prove that he possessed more than one gram of cocaine.
“When a defendant challenges the sufficiency of evidence, this court’s standard of review is whether, after review of all of the evidence viewed in the light most favorable to the State, the appellate court is convinced that a rational jury could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Mays, 277 Kan. 359, 377, 85 P.3d 1208 (2004).
Here, the officers seized from Jennings a plastic bag containing 10 individually wrapped rocks that appeared to be cocaine. The total weight of the rocks was 3.28 grams. Lab testing was done on one of the rocks, which revealed that it was cocaine. After Jennings was arrested and given Miranda warnings, he told Officer Voight that die cocaine in his possession was given to him to sell. Voight testified that diere was no drug tax stamp affixed to the unlawful substance.
The journal entry of sentencing in this case indicates that Jennings was convicted of failure to pay the Kansas drug tax by a drug dealer in violation of
“Any dealer violating this act is subject to a penalty of 100% of the tax in addition to the tax imposed byK.S.A. 79-5202 and amendments thereto. In addition to die tax penalty imposed, a dealer distributing or possessing marijuana or controlled substances without affixing the appropriate stamps, labels or odier indicia is guilty of a severity level 10 felony.”
Under
“[A]ny person who, in violation of Kansas law, manufactures, produces, ships, transports or imports into Kansas or in any manner acquires or possesses more than 28 grams of marijuana, or more tíian one gram of any controlled substance, or 10 or more dosage units of any controlled substance which is not sold by weight.”
Essentially, Jennings contends that because only 1 out of the 10 seized cocaine rocks was tested and because the evidence failed to
To support his position, Jennings cites State v. Beal, 26 Kan. App. 2d 837, 994 P.2d 669 (2000). There, the State had presented two pieces of evidence labeled Exhibits 10 and 11. Exhibit 10 weighed 0.4 grams, and test results indicated that it contained methamphetamine. Exhibit 11 consisted of two packages that together weighed 1.4 grams. The packets were not separately weighed. Samples were taken from each package, combined, and then tested. The combined sample tested positive for methamphetamine. On appeal, this court determined that the method of testing Exhibit 11 was suspect:
“The methodology employed in the testing of the purported controlled substances in this case is suspect. The individual packets that comprised Exhibit 11 were never weighed separately. We do know that their combined weight was 1.4 grams. While samples were taken from both packets in Exhibit 11, they were not tested separately but combined into one sample, which tested positive for methamphetamine. One of the packets could have contained methamphetamine and one could have contained a substance that was not controlled. Both packets could have contained methamphetamine, but no test was performed that would prove this. Even if one of the packets in Exhibit 11 contained methamphetamine, we do not know its separate weight in order to determine whether when combined with Exhibit 10 (0.4 grams), there was more than 1 gram of methamphetamine that would require the purchase of a drug tax stamp. Laboratory tests of this land must show drat there is a controlled substance as well as its quantity.” 26 Kan. App. 2d at 844.
This court concluded that there was insufficient evidence to convict Beal of the drug tax stamp violation. 26 Kan. App. 2d at 843-44.
Beal is distinguishable from the present case. Here, when Jennings was questioned by Officer Voight after he had been read the Miranda warnings, he admitted that he was going to sell the cocaine in his possession. In addition, a sample of one of the rocks tested positive for cocaine. Although only one of the individually wrapped rocks within the package was tested, the rocks were all contained within the same bag. Based on Jennings’ admission and the drug testing performed on the rock, there was a clear inference that the rocks all contained cocaine.
Affirmed.