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State v. Malm

April 6, 2007

STATE OF KANSAS, APPELLEE,
v.
KEVIN DEAN MALM, APPELLANT.



Appeal from Dickinson District Court, BENJAMIN J. SEXTON, judge.

SYLLABUS BY THE COURT

1. In reviewing a district court's decision regarding suppression, an appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.

2. A seizure occurs when there is an application of physical force or a show of authority which, in view of all the circumstances surrounding the incident, would communicate to a reasonable person that he or she is not free to leave and the person submits to the show of authority.

3. Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed, or is about to commit a crime and may demand the name and address of such suspect and an explanation of such suspect's actions.

4. Reasonable suspicion has been defined as a particularized and objective basis for suspecting the person stopped of criminal activity. Something more than an unparticularized suspicion or hunch must be articulated. Reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Both reasonable suspicion and probable cause are dependent upon the content of the information possessed by the detaining authority and the information's degree of reliability. Quantity and quality are considered in the totality of the circumstances and the whole picture that must be taken into account when evaluating whether there is reasonable suspicion.

5. In determining whether probable cause exists to support a search warrant, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of any person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

6. Kansas courts prefer searches conducted under the authority of search warrants to those conducted without the benefit of a warrant. Therefore, warrants and their supporting affidavits are to be interpreted in a common-sense, rather than a hypertechnical, fashion.

7. In order to obtain a warrant to search a suspect's residence, the affidavit must contain more than a description of the suspect's illegal activity. There must be some nexus between the illegal or suspicious activity described in the affidavit and the suspect's residence sufficient to establish a fair probability that contraband or evidence of a crime will be found in the residence.

8. The Fourth Amendment exclusionary rule should not be applied to bar evidence obtained by officers acting in good faith in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though the warrant is ultimately found to be invalid. However, the exclusionary rule still applies in cases where (1) the judge or magistrate issuing the warrant was deliberately misled by false information; (2) the judge or magistrate wholly abandoned his or her detached and neutral role; (3) the warrant was so lacking in specificity that the officers could not determine the place to be searched or the things to be seized; or (4) there was so little indicia of probable cause contained in the affidavit that it was entirely unreasonable for an officer to believe the warrant was valid.

9. The Fourth Amendment exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Thus, suppressing evidence seized by law enforcement officers acting in good faith in reasonable reliance on a search warrant signed by a detached and neutral magistrate does not further the purpose of the exclusionary rule.

10. Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing or eliciting the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.

11. It is constitutionally impermissible for the State to elicit evidence at trial of an accused's post-Miranda silence.

12. The following test is applied to determine multiplicity issues. First, a court must consider whether the convictions are based upon the same conduct. If not, the multiplicity analysis ends. If based on the same conduct, the court must then consider whether the convictions are based upon a single statute or multiple statutes. If the convictions are based upon different statutes, the convictions are multiplicitous only when the statutes upon which the convictions are based contain an identity of elements. The same-elements test is the only test to determine multiplicity arising from convictions of separate statutes.

13. A conviction of conspiracy to manufacture methamphetamine is properly classified as a drug severity level 1 offense rather than as a drug severity level 4 offense.

14. The defendant's constitutional rights are not violated when the defendant's sentence is based upon a criminal history classification not proven to a jury beyond a reasonable doubt.

The opinion of the court was delivered by: Malone, J.

Affirmed.

Before RULON, C.J., MALONE and HILL, JJ.

Kevin Dean Malm appeals his convictions and sentences for conspiracy to manufacture methamphetamine and several related drug charges. Malm raises the following issues: (1) The district court erred by denying Malm's motion to suppress evidence seized as a result of an illegal traffic stop; (2) the district court erred by denying Malm's motion to suppress evidence seized from his residence pursuant to a search warrant; (3) Malm was denied a fair trial based upon prosecutorial misconduct; (4) Malm's convictions of unlawful acts relating to the manufacture of methamphetamine under K.S.A. 65-7006(a) and possession of drug manufacturing paraphernalia under K.S.A. 65-4152(a)(3) were multiplicitous; (5) the district court erred by classifying conspiracy to manufacture methamphetamine as a drug severity level 1 offense as opposed to a drug severity level 4 offense; and (6) Malm's constitutional rights were violated when his sentence was based upon a criminal history classification not proven to a jury beyond a reasonable doubt.

On January 5, 2004, Diane Dowell, an asset protection manager at the Salina Target store, observed Malm purchase two packages of cold tablets containing pseudoephedrine. Target's policy at the time permitted a customer to purchase two packages of cold medicine from the shelf. Dowell continued to observe Malm on closed circuit surveillance as he approached a van in the Target parking lot. After a few minutes, Dowell observed a woman let Malm into the van.

After approximately 7 minutes, Dowell observed the woman exit the van and walk toward the Target store. On her way into the store, the woman deposited a white bag into a trash can. Dowell later examined the white bag and discovered that it contained four empty packages of cold tablets, two Target brand and two Sudafed brand. Dowell continued her surveillance of the woman inside the store, where she observed the woman pick up two packages of cold tablets and walk back and forth between the service desk and the checkout lanes. The woman ultimately went to the service desk and attempted to exchange a music compact disc for the two packages of cold tablets. The employee at the service desk would not allow the exchange because the woman did not have a receipt for the CD, and the woman left the store without making any purchases. Dowell observed the woman return to the van.

Dowell summoned the police, and Officers Lane Mangels, James Feldman, and Janelle Zimmerman, of the I-35/I-70 Drug Task Force, responded to the call. Feldman and Zimmerman, dressed in plain clothes and driving an unmarked vehicle, arrived at the store in time to follow the van as it left Target. Malm was driving the van, and the woman was in the passenger's seat. The officers ran a check on the van's license plate and discovered that it was registered to Connie S. Malm of Carlton, Kansas. The weather was snowy and icy that day, making the road conditions hazardous.

The officers followed the van and observed it stop at a gas station where both Malm and the woman entered and purchased cigarettes. The officers continued to follow the van to Carlton, Kansas, approximately 20 miles from the Target store in Salina. At one point, Malm stopped the van, got out, and looked around as if to check to see if he was being followed. Just beyond Carlton, the van turned onto a dirt road. As the officers did not feel comfortable following the van down the dirt road due to weather-related driving conditions, the officers stopped in Carlton and waited.

A few minutes later, the van returned to Carlton and pulled up alongside the officers' vehicle on the driver's side so that the two vehicles were less than 12 inches apart. Malm rolled his window down and inquired whether the officers needed help. Zimmerman, who was driving, asked Malm to pull slightly forward so that she could exit the vehicle without dinging the van. As Malm was moving the van forward, Feldman exited the vehicle, drew his weapon down to his side, and identified himself as a police officer. Feldman was unsure whether the occupants of the van could see his weapon. Feldman asked Malm to stop the van, but the van continued to go forward slowly. Feldman told Malm to stop two more times before he finally did.

Once the van stopped, Feldman asked Malm to step out of the van and produce his driver's license, and Malm complied. Feldman asked Malm where he was currently living, and Malm replied that he was homeless and that the van belonged to his wife. Feldman asked Malm where his wife lived, and Malm replied that he did not know where she lived. Feldman observed a knife in between the driver's seat and the passenger's seat. When Feldman asked for consent to search the van, Malm refused.

Meanwhile, Zimmerman approached the passenger who identified herself as Connie Malm, Malm's wife and the registered owner of the van. Malm yelled to his wife not to talk to Zimmerman because they had a lawyer. Zimmerman asked Connie for permission to search the van, but she refused.

A few minutes later, Mangels, who had been tailing the officers and the van at some distance, also arrived on the scene. Mangels ran a warrant check on Malm and discovered an active arrest warrant for a probation violation based on a conviction of possession of methamphetamine. Based on the probation violation, Feldman arrested Malm. The officers then searched the van, which they characterized as a search incident to the arrest. The officers found blister packs of tablets containing pseudoephedrine, an open box of coffee filters, a syringe, and several small baggies with white powder residue believed to be methamphetamine.

Based on this evidence, Mangels applied for a search warrant for the van and for the Malms' residence. The subsequent and more thorough search of the van uncovered additional items associated with the manufacture and use of methamphetamine. The search warrant affidavit for the Malms' residence recited the above information and also contained the following statement:

"[B]ased on the Malms' purchase and attempted second purchase of cold tablets containing pseudoephedrine hydrochloride at Target, the nervousness and paranoia of Kevin and Connie Malm in the city of Carlton, the discovery of blister packs containing tablets with pseudoephedrine, coffee filters and drug paraphernalia in the vehicle, the affiant believes that Kevin and Connie Malm were in possession of paraphernalia related to the manufacture of methamphetamine and were transporting those items from Salina to their residence in Carlton for the purpose of manufacturing methamphetamine. The affiant believes that Kevin and Connie Malm would have used the items found in the vehicle for the purpose of manufacturing methamphetamine at their residence if not for the swift intervention of law enforcement."

A magistrate authorized the search warrant, and upon its execution at the residence, the police found methamphetamine and a number of other objects associated with the manufacture and use of methamphetamine. Based on the evidence located in the Malms' van and residence, the State charged Malm with attempted manufacture of methamphetamine, conspiracy to manufacture methamphetamine, unlawful acts relating to the manufacture of methamphetamine, possession of methamphetamine, possession of drugs without a tax stamp, possession of drug manufacturing paraphernalia, and possession of drug use paraphernalia.

Malm filed a motion to suppress the evidence seized from the van, but after an evidentiary hearing the district court denied Malm's motion. Malm filed a subsequent motion to suppress the evidence seized from his residence. He argued the search warrant was not based on probable cause because the search warrant affidavit failed to allege a sufficient factual nexus between Malm's suspected criminal activity and his residence. The district court denied this motion as well. Malm renewed his objections to the evidence at his jury trial, and the district court granted a continuing objection for the course of the trial.

Malm was found not guilty of attempted manufacture of methamphetamine, but he was found guilty of the remaining charges. Based on Malm's criminal history classification, the district court imposed a controlling ...


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