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April 13, 1990.

JOHN R. DALY, Appellant.

John R. Daly, defendant, appeals his bench conviction for possession of cocaine. K.S.A. 1989 Supp. 65-4127a.

Factual History

On September 7, 1988, Robert VanHoesen, a Douglas County Sheriffs detective, received a telephone call from Detective Jim Gillespie of the Los Angeles, California, Police Department. Detective Gillespie informed Detective VanHoesen that he used a narcotics "sniffer" dog as part of a routine investigative procedure to examine packages being shipped from the Los Angeles airport by Federal Express. Detective Gillespie told Detective VanHoesen that the dog had identified a package being shipped to a Lawrence, Kansas, address. Detective Gillespie believed this package was suspicious because the seams of the box were covered with duct tape. He then directed the dog to the package, and the dog indicated that it contained narcotics.

  On September 8, 1988, Detective VanHoesen telephoned the Federal Express office in Lenexa, Kansas and arranged for a controlled delivery of the package. At 8:30 a.m., Sergeant Crossfield picked up the package at the Lawrence office of Federal Express and was provided with a Federal Express truck, uniform, and clipboard. Sergeant Crossfield took the package, which was addressed to John Daly, 837 Michigan, Building 9, Apartment 3, Lawrence, Kansas, to the Judicial and Law Enforcement Center in Lawrence.

  Detective VanHoesen submitted an affidavit in support of a search warrant of the package, and a district judge issued the warrant at 9:37 a.m. Detective VanHoesen and Sergeant Crossfield opened the box and found it contained newspapers and a clear plastic bag containing a white, powdery substance. Sergeant Crossfield removed a small sample of the powder, and conducted a cocaine field test. The results of the test indicated that the substance was cocaine. The bag and package were then resealed.

[14 Kan. App. 2d 312]


  Detective Mack Pryor, of the Lawrence Police Department, dressed in a Federal Express uniform and driving a Federal Express truck, proceeded with the package to the address to which the package was sent. He arrived at 837 Michigan at 10:30 a.m. and went to Building 9. The package was addressed to Apartment 3 in Building 9, but since the apartments were designated with the letters A through D instead of numbers, Detective Pryor went to Apartment C and rang the doorbell. After waiting five to ten minutes at Apartment C without any response, a man came out of Apartment A and asked Pryor if he was looking for Apartment A. Detective Pryor explained he was looking for Apartment 3 but had found the apartments to be designated by letters rather than numbers. The man in Apartment A then asked Pryor who he was looking for and Pryor responded "John Daly." The man identified himself as John Daly, accepted the package from Detective Pryor, and signed the Federal Express receipt form. Detective Pryor asked Daly if he was expecting a package from California, and Daly answered "yes."

  After he delivered the package, Detective Pryor returned to the Federal Express truck and radioed Detective VanHoesen at the Judicial and Law Enforcement Center and informed him the package had been delivered and the correct address was Apartment A not 3. At that time, Detective VanHoesen was waiting for information from Pryor to complete an affidavit for a search warrant to search for the delivered package in Apartment A. The warrant was issued at 10:45 a.m. and received by VanHoesen at 10:48 a.m. Detective VanHoesen then radioed Sergeant Crossfield, who was waiting in a car near the apartment, and informed him that the warrant had been signed. VanHoesen then proceeded to the apartment building with the search warrant.

  Within a few minutes, but before Detective VanHoesen arrived with the warrant, Crossfield, Pryor, and two other officers proceeded to Apartment A, and Pryor knocked on the door. When Daly answered, Pryor identified himself as a police officer and handcuffed Daly. The officers entered the apartment and, after being informed another person was upstairs, that person was brought down to the front room by Crossfield. The officers then remained in the front room until Detective VanHoesen arrived with the search warrant, which Crossfield testified was at about

[14 Kan. App. 2d 313]

      10:50 or 10:55 a.m. Pryor testified that approximately 10 to 15 minutes elapsed from the time of entry and VanHoesen's arrival.

  While in the front room, the officers observed drug paraphernalia and marijuana residue sitting in plain view. Officer Pryor testified that the package he had delivered was sitting between the coffee table and couch and some of the newspapers had been taken out. The officers did not look in the box until Detective VanHoesen arrived.

  When Detective VanHoesen arrived with the search warrant, he discovered the plastic bag was not in the box and asked Daly for consent to search the apartment, which Daly denied. VanHoesen returned to the Judicial and Law Enforcement Center to request a third search warrant while the other officers remained at the apartment. VanHoesen's affidavit for the third warrant stated that the plastic bag had been removed from the box and "moved to an unknown location in the apartment." The affidavit further stated that the officers had observed, in plain view, pipes believed to be used for smoking hashish and marijuana, green vegetation believed to be marijuana, and a set of scales. The search warrant was issued at 1:39 p.m. and authorized a search for cocaine, marijuana, narcotics, paraphernalia, the plastic bag containing cocaine, items establishing identity of the person(s) in control of the apartment, and records of narcotics purchases and sales.

  The third search warrant was executed shortly after its issuance, and the plastic bag containing cocaine was located under a blanket on a divan in the front room. The officers also seized various drug paraphernalia.

  Daly was initially charged with possession of cocaine with intent to sell (K.S.A. 1989 Supp. 65-4127a); possession of marijuana (K.S.A. 1989 Supp. 65-4127b[a][3]); possession of drug paraphernalia (K.S.A. 65-4152[a][2]); and failure to pay tax imposed upon marijuana and controlled substances (K.S.A. 79-5201 et seq.). Following the preliminary hearing, Count I of the complaint was amended to charge only possession of cocaine, and the charge for failure to pay the controlled substance tax was dismissed by the trial court.

  Daly filed two motions to suppress; one alleged the package was illegally seized in Los Angeles, the ...

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