John R. Daly, defendant, appeals his bench conviction for
possession of cocaine. K.S.A. 1989 Supp. 65-4127a.
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.
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
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
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]); possession of drug
paraphernalia (K.S.A. 65-4152[a]); 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 ...