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State v. Pritchard

May 30, 2008

STATE OF KANSAS, APPELLEE,
v.
MARK L. PRITCHARD, APPELLANT.



Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge.

SYLLABUS BY THE COURT

1. If a motion to suppress evidence seized during the execution of a search warrant challenges the affidavit submitted to obtain the warrant, the standard of review is inherently deferential to the magistrate who issues the warrant. This deference is owed by all reviewing courts, district and appellate.

2. Because of this deferential standard, the reviewing court needs only to see enough to be persuaded that there was a substantial basis for the magistrate's conclusion that probable cause existed.

3. In this case, information from various law enforcement officers corroborated information obtained from a confidential informant. All was used to support a finding of probable cause that was sufficient to justify the issuance of a search warrant.

4. Whether convictions are multiplicitous is a question of law subject to unlimited review.

5. When deciding a double jeopardy issue of multiplicity, two questions must be answered: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?

6. To determine if the acts arise from the same conduct, the court can look at four factors: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts; and (4) whether there is a fresh impulse motivating some of the conduct.

7. To determine if there are two offenses or one, a court must use a unit of prosecution test. Under this test, the statutory definitions of the crime determine what the legislature intended as the allowable unit of prosecution. There can be only one conviction for each allowable unit of prosecution.

8. Under the facts of this case, the defendant's convictions for possession of drug paraphernalia with intent to manufacture a controlled substance and possession of drug paraphernalia with intent to use to package a controlled substance for sale are multiplicitous because they arose from the same conduct and one unit of prosecution and the defendant could only be convicted on one of those counts.

9. The application of the identical offense rule does not change the severity level of possession of a ephedrine or pseudoephedrine conviction from a severity level 1 to a severity level 4 drug crime but requires the sentence to be reduced to the lesser of the two identical offenses.

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

Affirmed in part and reversed in part.

Before HILL, P.J., GREEN and STANDRIDGE, JJ.

Mark L. Pritchard appeals his drug convictions. Mainly, he claims the search of his campsite was illegal and the trial court should have suppressed any evidence discovered by the search. When reviewing a magistrate's decision to issue a search warrant, our courts (district and appellate) have adopted a deferential standard of review. The reviewing court must decide whether any affidavit (or testimony) seeking the warrant provides a substantial basis for the magistrate's determination there is a fair likelihood that contraband or evidence of a crime will be where the officers want to search. Here, the affidavit revealed ample evidence of possible compounding of drugs. Pritchard's campsite had at least 5 gallons of camp fuel, five propane tanks, a gas can with a clear plastic tube attached, and no camp stoves or lanterns were in the camp. Also, a trip alarm had been set at the camp's perimeter. Because of this evidence, we hold there was a legal basis for the magistrate to issue the warrant, and the district court did not err when it denied Pritchard's motion to suppress.

A secondary issue arises in this case. Pritchard was convicted of possession of drug paraphernalia with intent to manufacture a controlled substance and possession of drug paraphernalia with intent to use to package a controlled substance for sale. The parties have agreed to the facts. They show these charges arose from the same conduct. Because these counts fall within one unit of prosecution and the court made no fact findings to distinguish the two counts, Pritchard's convictions are multiplicitous. We reverse his conviction on count VI.

The parties agreed to the facts and the case was tried to the court.

We summarize the facts for our opinion. Reno County Deputy Sheriff Cory Griffith submitted an affidavit for a search warrant on May 11, 2005. He alleged that probable cause existed to search a campsite located near Cheney Lake. The search warrant was issued and executed on the same day.

The deputy received his information from several sources. From this information he believed that methamphetamine was being manufactured at the campsite. His sources can be classified into three categories: (1) The confidential informant's statement that the manufacture of methamphetamine was occurring at Pritchard's campsite; (2) observations of items associated with the manufacture of methamphetamine at Pritchard's campsite; and (3) Pritchard's history of manufacturing methamphetamine.

1. The Confidential Informant's Statement

On May 7, 2005, a "reliable C.I." reported to a KBI special agent that "there was a meth cook occurring at Cheney State Lake." The confidential informant did not identify the persons involved but specifically described the location of the campsite. The confidential informant also noted that the subjects had two campers at the campsite and "some type of alarm set up" to warn them when vehicles approached the campsite. From the description, the KBI special agent was able to identify the exact location of the campsite.

2. Items at Pritchard's Campsite

Cheney State park rangers' personal observations. On the evening of May 7, 2005, three Cheney State park rangers made contact with the persons at the identified campsite: Pritchard's wife, Jeff Reese, and four minor children. Pritchard was not present, but his wife stated that he would return. While at the campsite, the park rangers observed four large coolers, seven 1-gallon cans of camp fuel, six propane tanks, and a shotgun. The park rangers did not observe any ...


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