Review of the judgment of the Court of Appeals in an unpublished opinion filed August 6, 2010.
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Appeal from Saline District Court; DANIEL L. HEBERT, judge.
BY THE COURT
1. Stale information is information that no longer informs whether there is a fair probability that evidence of a crime will be found at a particular place because sufficient time has elapsed between when the informant acquired the information or when an event occurred and when officers act on the information.
2. The amount of time that must lapse before information regarding a crime becomes stale is a particularized inquiry that takes into account the facts and circumstances of each case.
3. Courts analyze informant tips by using the totality of the circumstances test articulated in Illinois v. Gates, 462 U.S. 213, 230-33, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Under that test, the informant's veracity and basis of knowledge are relevant, but a deficiency in one may be compensated for by a strong showing as to the other, or by some other indicia of reliability.
4. The Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights prohibit a criminal defendant from being " twice put in jeopardy."
5. The Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights prohibit a court from imposing multiple punishments under different statutes for the same conduct in the same proceeding when the legislature did not intend multiple punishments.
6. In considering a double jeopardy challenge under the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights, this court applies a two-step analysis. First, the court determines whether the convictions arose from the same conduct. Second, the court considers whether by statutory definition there are two crimes or only one. Under United States Supreme Court precedent, this question is answered by using the same-elements test. Under that test, if each statute contains an element not found in the other statute, the legislature presumably intended punishment for both crimes.
7. K.S.A. 21-3107(2)(b) is essentially the inverse of the same-elements test as it prohibits a defendant from being convicted of both a greater and lesser crime, and defines a lesser crime as " a crime where all elements of the lesser crime are identical to some of the elements of the crime charged."
8. K.S.A. 21-3107(2)(b) supplants the same-elements test because either test in a double jeopardy challenge results in the same outcome for the defendant and the statutory test removes the need to turn to legislative history to divine legislative intent.
9. Under K.S.A. 21-3107(2)(b), possession of marijuana is a lesser included crime of possession of marijuana with no tax stamp.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Alice L. Walker, legal intern, was with him on the brief for appellant.
Amy E. Norton, assistant county attorney, argued the cause, and Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Steve Six, attorney general, were on the brief for appellee.
[298 Kan. 423] MORITZ, J.
We granted Michael Rae Hensley's petition for review seeking reversal of a Court of Appeals decision affirming his convictions of possession of marijuana, possession of marijuana with no tax stamp affixed, and possession of drug paraphernalia. Hensley argues the panel erred in affirming the district court's conclusion that probable cause supported the issuance of a warrant to search his home and in rejecting his challenge to the district court's failure to compel the appearance of a witness. Additionally, he asserts the panel erred in rejecting his claim that his convictions of possession of marijuana and possession of marijuana with no tax stamp were multiplicitous.
[298 Kan. 424] We reject Hensley's assertions that the probable cause affidavit was insufficient and conclude Hensley's compulsory process claim of error fails because the district court never refused to issue process. However, we agree with Hensley that his convictions for possession of marijuana and possession of marijuana with no tax stamp are multiplicitous and reverse his conviction for possession of marijuana.
Factual and Procedural Background
Hensley's ex-girlfriend, Crystal Post, telephoned the Saline County Sheriff's Office in April 2007 and reported having seen a large amount of marijuana in Hensley's freezer the previous day and said she believed Hensley had a handgun. Post advised that she feared Hensley because they had previously had physical confrontations and Hensley had threatened her. A few days before Post contacted the sheriff's office, an unidentified woman advised an officer that there was a lot of traffic coming and going from a house where " Mike" lived and she was concerned someone in the house was dealing narcotics.
After receiving these tips, officers checked their in-house information on Hensley and learned the following: in December 2004, Hensley visited a local inmate arrested for marijuana possession; in January 2005, officers executed a search warrant on an apartment across the hall from Hensley's apartment and found his fingerprint on a baggie of marijuana; and in July 2005, an identified informant told police Hensley was his marijuana dealer in 2004. Officers also discovered that Hensley had a 1997 drug-related juvenile adjudication and that from 2003 to 2007 Hensley had several arrests related to domestic violence and one domestic violence conviction.
Armed with the tips, in-house information, and Hensley's criminal history, an investigator applied for and received a search warrant for Hensley's residence, person, and vehicle. As officers conducted pre-raid surveillance on Hensley's home, they saw two men drive up in a van, park, enter, and quickly leave Hensley's home. The officers followed the van and stopped it after the van's driver [298 Kan. 425] committed a traffic violation. A search of the van revealed eight baggies of marijuana.
As officers searched the van, other officers executed the search warrant on Hensley's residence. During the search, officers discovered 200 grams of marijuana in Hensley's freezer, a folding lock blade knife, a baggie of marijuana, a pipe, rolling papers, and a marijuana roach with blunts.
Based on the contraband discovered during the search of the van and Hensley's home, the State charged Hensley with sale, delivery, or distribution of marijuana; possession of marijuana with intent to sell, deliver, or distribute; possession of marijuana with no tax stamp ...