Review of the judgment of the Court of Appeals in an
unpublished opinion filed December 14, 2012.
[Copyrighted Material Omitted]
Appeal from Cherokee District Court; OLIVER KENT
BY THE COURT
1. The State has the burden of proving that a search and seizure was lawful.
2. A warrantless search by a police officer is per se unreasonable under the Fourth Amendment to the United States Constitution, unless the State can fit the search within one of the recognized exceptions to the warrant requirement. One of those exceptions is probable cause plus exigent circumstances, a subclass of which is known as the automobile exception.
3. Under the automobile exception, the mobility of the vehicle establishes the requisite exigency, thereby permitting a vehicle search based on probable cause alone. Probable cause to search the vehicle can be established if the totality of the circumstances indicates there is a fair probability that the vehicle contains contraband or evidence.
4. Multiplicity occurs when a single offense is charged in more than one count of the charging document and such double charging is proscribed because it creates the potential for multiple punishments for a single crime in contravention of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights.
5. In considering a double jeopardy issue, the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?
6. If the double jeopardy issue arises from multiple convictions of different statutes, in other words if it is a multiple-description issue, the same elements test is applied. The same elements test asks whether each offense contains an element not contained in the other.
7. When there is a clear expression of legislative intent to provide multiple punishments for the same conduct, double jeopardy is not violated even if overlapping provisions have identical elements. The legislature intended separate punishments for violations of K.S.A. 2007 Supp. 65-7006(a) and K.S.A. 2007 Supp. 65-4152(a)(3).
8. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not require a jury to find the fact of a prior conviction beyond a reasonable doubt.
John Grube, of Kansas Appellate Defender Office, argued the cause, and Matthew J. Edge, of the same office, was on the brief for appellant.
Natalie A. Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.
JOHNSON, J. BILES, J., concurring. NUSS, C.J., joins in the foregoing concurrence.
[301 Kan. 705] Johnson, J.:
A jury convicted Larry G. Overman of six drug offenses, and he appealed those convictions and corresponding sentences to the Court of Appeals, which affirmed in part and reversed in part. State v. Overman, 290 P.3d 685, 2012 WL 6634362 (Kan. App. 2012) (unpublished opinion). Overman seeks our review of that portion of the Court of Appeals' decision that was adverse to him, including the affirmance of the district court's denial of his suppression motion; the affirmance of his convictions for the separate offenses of possessing red phosphorous and iodine and possessing drug paraphernalia with intent to manufacture; and sanctioning the use of his prior convictions to enhance his sentence. The State did not seek review of the portion of the Court of Appeals' opinion in favor of Overman. Finding no error on the issues presented in Overman's petition for review, we affirm.
Factual and Procedural Overview
The charges against Overman arose out of a traffic stop on October 4, 2007, in Baxter Springs. Two days earlier, Baxter Springs [301 Kan. 706] Police Officer David Groves had seen Overman and Sharlotte Carey traveling in a Chevy Citation, which was registered in both of their names. The officer knew both persons, and, because he believed that Overman had previously been involved in illegal narcotic activity, the officer conducted a criminal background check and driver's license scan on both Overman and Carey. That inquiry revealed that both had prior drug charges and arrests and that Overman currently had a suspended driver's license. That information prompted Officer Groves to enlist the aid of Sergeant Joseph Sparks and Officer Jon Hunt to effect the traffic stop on October 4.
After the stop was effected in a parking lot, the two exited the vehicle. Sergeant Sparks had Overman sit on the ground by the front of his patrol car, while the sergeant conferred with Officer Groves. Then, the sergeant advised Overman of the reason for the stop and that he was going to be arrested. In connection with a patdown search for weapons, the sergeant discovered that Overman was carrying coffee filters, which the sergeant knew from training and experience could be used in the manufacturing of methamphetamine. The sergeant then escorted the handcuffed Overman to the backseat of his patrol car.
Meanwhile, Officer Groves found a small black pouch on the ground near where Overman had just been sitting. The pouch contained what appeared to be a marijuana cigarette, $330, a baggy containing white powder, and three small pieces of plastic with a white powdery substance on them. From their training and experience, the officers thought the white powder was methamphetamine.
Sergeant Sparks read Overman his Miranda rights and asked about the pouch. Overman claimed ownership and surmised that it ...