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State v. Ton

Supreme Court of Kansas

July 27, 2018

State of Kansas, Appellee,
v.
Hai That Ton, Appellant.

         SYLLABUS

         When a defendant affirmatively narrows the scope of a Fourth Amendment claim to an argument that reasonable suspicion did not support a seizure, an appellate court will not consider additional arguments on appeal.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed November 18, 2016.

          Appeal from Johnson District Court; Sara Welch, judge.

          Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Candice Alcaraz, legal intern, was with him on the briefs for appellant.

          Jacob M. Gontesky, assistant district attorney, argued the cause, and Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

          OPINION

          ROSEN, J.

         Hai That Ton petitioned for this court's review of the Court of Appeals decision affirming his convictions for possession of marijuana with intent to sell and failure to pay the Kansas drug tax stamp. Because Ton has chosen to narrow the issue in his case only to whether there was reasonable suspicion to support a seizure, we examine that issue alone, see no error below, and affirm.

         Factual and Procedural Background

         In July 2010, Detective Nick Stein was investigating Kyle Graf for marijuana distribution. A confidential informant told Stein that the marijuana Graf was selling was being shipped from California to the Kansas City metropolitan area by United Parcel Service (UPS) and that Graf had an associate in his distribution enterprise who was an Asian male. Stein had the confidential informant purchase some marijuana from Graf and placed a global positioning system (GPS) tracker on Graf's vehicle. The GPS showed Graf's vehicle parked at 18462 W. 157th Terrace in Olathe (the Olathe house) for 11 minutes on July 9 and again for 10 minutes on July 12. Stein testified that he was suspicious of these stops because, "based on [his] training and experience, short-term traffic . . . can commonly be associated with illegal drug activity, specifically people selling or buying illegal drugs."

         Stein searched the water billing records for the Olathe house and discovered that the water account was registered to someone named Amy. Stein also searched the criminal record database for the address and found it listed as the address of an Asian male named John Ton. Ton had a criminal history for assault with a firearm on a person, burglary, grand theft auto, assault with a weapon that was not a firearm, receiving stolen property, and possession of an assault weapon, and he had a sentence enhancement for violating California's gang statute.

         Based on the gathered information, Stein suspected that John Ton was the Asian male who was in business with Graf, or possibly Graf's source of supply. Stein contacted UPS inspector Scott Karr and asked him to place a parcel watch on any packages going to the Olathe house. Stein also told Karr that he was specifically looking for packages coming from California.

         On July 20, Karr called Stein sometime between 8 and 10 a.m. to inform him that he had a package addressed to Hanna Woodland at the Olathe house. The package was classified "Next Day Air" which meant it was scheduled to be delivered by 10:30 a.m. on July 20. Karr testified that there was nothing unusual about the package and described it as "common-folk standard." Stein then made contact with Officer Andy Falcon, who partnered with a police dog in the execution of his duties. Stein went to the UPS facility where Karr had four or five packages lying on the floor in the hallway. Falcon testified that he arrived with his canine partner around 10:30 a.m. The dog conducted a drug sniff and alerted to the package addressed to the Olathe house. Stein took the package to the police station.

         At 3:07 p.m. on the same day, Stein obtained a search warrant to open the package and an anticipatory warrant to search the Olathe house. The anticipatory warrant was conditioned on the package being taken into the house. When the officers opened the package they discovered it contained marijuana. After finding the marijuana, they resealed the ...


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