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State v. Howard

Court of Appeals of Kansas

December 5, 2014

STATE OF KANSAS, Appellee,
v.
CAMERON HOWARD, Appellant

Page 810

[Copyrighted Material Omitted]

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Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge.

Affirmed.

SYLLABUS

BY THE COURT

1. When a person is determined by a Missouri court to be guilty of an offense and placed on probation, that offense counts as a conviction under Kansas law for purposes of the Kansas statute forbidding possession of a firearm by a felon, K.S.A. 2013 Supp. 21-6304, even though the Missouri court suspended imposition of its sentence, the defendant successfully completed the Missouri probation, and under Missouri law the person would not be considered to have been convicted of a felony.

2. A search without a warrant is allowed when probable cause is combined with exigent circumstances. When an officer observes a plastic baggie in a car with a corner ripped off, the officer's training and experience indicates that such an item is commonly used to transport illegal drugs, and no evidence points to a common, lawful use for baggies with the corner cut off, the officer has probable cause to search the car for evidence of illegal drug activity.

3. The crime of criminal possession of a firearm, K.S.A. 2013 Supp. 21-6304, is a general-intent crime, requiring that the defendant knowingly possess a firearm but not additionally requiring that the defendant know that his or her legal status makes the possession of a firearm illegal.

Craig M. Divine, of Divine Law Office, LLC, of Kansas City, Missouri, for appellant.

Jacob M. Gontesky and Steve J. Obermeier, assistant district attorneys, Stephen M .Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.

OPINION

Page 812

Leben, J.

Officer Chad Loughman noticed a plastic baggie with a corner missing in a cupholder during a traffic stop. The driver, Cameron Howard, and his passenger were arrested for outstanding warrants. Officer Loughman had the passenger, who was noticeably pregnant, sit on the curb about 6 to 8 feet from the car, and Howard was placed in the back of a police car. Officer Loughman then searched the car for illegal drugs based on the fact that plastic-baggie corners are often used to transport drugs. He found an AK-47 firearm, and the State later charged Howard with criminal possession of a firearm, believing he was prohibited from possessing a firearm because he had pled guilty to first-degree burglary in Missouri in 2006. See K.S.A. 2013 Supp. 21-6304(a)(2). The district court convicted Howard of criminal possession of a firearm after a bench trial on stipulated facts.

On appeal, Howard makes three arguments--that he was not prohibited from possessing a firearm because he received and completed probation for a suspended imposition of sentence in Missouri (which is not considered a conviction there), that the police discovered the gun during an unlawful search of his vehicle, and that the district court erred in excluding evidence that he lawfully purchased the AK-47 in Missouri after reporting his criminal background for a federal background check.

First, we hold Howard was prohibited from possessing a firearm in Kansas because the Missouri court found him guilty of first-degree burglary and in Kansas a person is " convicted" when a sentencing court makes an adjudication of guilt. See K.S.A. 2013 Supp. 21-5111(d). Second, the State lawfully searched Howard's vehicle. The police are not required to obtain a warrant to conduct a search if there are exigent circumstances and probable cause to search. Here the mobility of Howard's vehicle created exigent circumstances, and the torn plastic baggie and the officer's training and experience regarding such baggies created probable cause to search. Third, we affirm the district court's decision to exclude evidence that Howard lawfully purchased the AK-47 in Missouri. The evidence was irrelevant because criminal possession of a firearm is a general-intent crime and the State had to prove only that Howard possessed the firearm, not that he knew he was considered a convicted felon in Kansas.

We therefore affirm the district court's judgment.

Factual and Procedural Background

In September 2011, Loughman, a Prairie Village police officer with almost 20 years of experience, stopped Howard after he saw him drive through a parking lot to avoid an intersection, a traffic infraction in Prairie Village. When Officer Loughman approached Howard's car, he noticed that the passenger had reclined her seat since he had first observed her. The officer discovered that Howard had an outstanding warrant, so

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he called for backup. Sergeant James Carney arrived as backup, and he handcuffed Howard and placed him in the back of a patrol car. Officer Loughman then scanned the inside of Howard's car but did not move anything. In the cupholder in the center armrest, he saw a plastic baggie with " a corner ripped out."

Officer Loughman then discovered that the passenger in the vehicle also had an outstanding warrant. He planned to arrest her and had her step out of the car too. Because she was noticeably pregnant, he had her sit, without handcuffs, on a curb about 6 to 8 feet from the passenger door of the vehicle.

Officer Loughman then searched the car for illegal drugs based on his belief that the baggie was drug paraphernalia. He moved the passenger seat forward and into a more upright position and found a loaded AK-47 firearm that had been concealed by the driver's-side-rear and front-passenger floor mats. He then asked Howard about the baggie, and Howard told him that the baggie had once contained marijuana.

The State charged Howard with one count of criminal possession of a firearm by a convicted felon, a severity-level-8 nonperson felony, based on his guilty plea to first-degree burglary in Missouri in October 2006. The Missouri court suspended the imposition of its sentence and granted probation, but the written journal entry stated that Howard had been found guilty of first-degree burglary:

" Beyond a reasonable doubt, defendant is guilty of the crime. The plea of guilty is accepted and the Court finds that defendant is guilty of the crime.
" IT IS ADJUDGED that defendant, having been found guilty upon a plea of guilty entered on October 19, 2006, is guilty of the offense of: Count I--Burglary First Degree, Class B Felony."

The Missouri sentence was suspended on the condition that Howard serve a presentence probation and comply with its requirements. Howard complied with his probation conditions, so the Missouri court discharged him from its jurisdiction and ordered that his file be a closed record.

In the current case, the State filed a motion in limine asking to exclude evidence that Howard legally purchased the AK-47 in Missouri. Howard also filed a motion to suppress the evidence that he possessed a firearm, arguing that such evidence was illegally obtained through a warrantless search of his vehicle. The district court granted the State's motion and denied Howard's. The district court found that the twisted or cut-off corner of the baggie was probable cause for the police to search the car, noting that " [t]o many people looking at [the baggie] it may signal nothing, but to a law enforcement officer trained in narcotics interdiction and so forth, it may be quite significant." The judge concluded that there " was enough of a suggestion here that there was narcotics possibly connected with this vehicle."

After the district court denied the motion to suppress, Howard's case was submitted to the court for a bench trial on the following stipulated facts:

" 1. On September 15, 2011, Prairie Village Police Officer Chad Loughman conducted a traffic stop on a car near 7720 State Line Road in Prairie Village, Johnson County, Kansas.
" 2. Once the car was stopped, the driver was identified as Cameron Howard. Howard was found to have a warrant for his arrest from Leawood Municipal Court. The passenger of the vehicle had a warrant from Prairie Village Municipal Court.
" 3. Once both persons were removed from the vehicle, officers found a loaded firearm beneath one of the seats. Howard admitted the firearm belonged to him. Howard told the officers he had purchased the firearm from a store in Raytown, Missouri.
" 4. On October 19, 2006, Cameron Howard entered a 'Guilty Plea' to one count of 'Burglary First Degree, Class B Felony' in the Circuit Court of Jackson County, Missouri in Case No. 0616-CR03677-01. . . .
" 5. Following the plea, the Circuit Court ordered 'that imposition of sentence be suspended and defendant is placed on probation for a period of three (3) years under the supervision of the Missouri State Board of Probation and Parole.'"

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The district court found Howard guilty of criminal possession of a firearm and sentenced him to 18 months of probation with an underlying 7-month prison term. Howard appeals to this court, arguing that his Missouri offense was not a prior conviction, that the police unlawfully searched his vehicle, and that the ...


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