Opinion
111,390.
02-27-2015
STATE of Kansas, Appellee, v. Gregory Paul CHAMBERS, Appellant.
Bobby J. Hiebert, Jr., of Law Offices of Bobby J. Hiebert, Jr., of Salina, for appellant. James W. Garrison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Bobby J. Hiebert, Jr., of Law Offices of Bobby J. Hiebert, Jr., of Salina, for appellant.
James W. Garrison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
BRUNS, J.
Gregory Chambers appeals his convictions for possession and cultivation of marijuana. On appeal, Chambers contends that the district court erred in partially denying his motion to suppress evidence. In support of this contention, Chambers argues that the affidavit used to obtain the search warrant that led to the seizure of cultivation evidence was not reliable in that it contained stale information. Next, Chambers contends that the district court erred in refusing to allow his attorney to argue jury ification during his closing argument. Because we find neither of these contentions to be meritorious, we affirm Chambers' convictions.
Facts
On February 5, 2013, two Riley County police officers, Michael Dunn and Trevor Wilkey, were patrolling on their bikes in Manhattan, Kansas. Around 8:30 p.m., the officers smelled a “very strong” marijuana odor coming from a house at 502 Freemont Street. According to Officer Dunn, he believed the odor came from a combination of fresh, raw, and burnt marijuana.
The officers investigated the smell by walking up to the front porch of the house. As they did so, they could see through the window blinds that the house lights were on and that people were moving around in the front room. Before the officers could knock on the front door, a woman and a child left the house. The woman did not shut the door behind her, and it remained open as she walked away with the child. According to the officers, the odor of marijuana grew stronger with the front door open.
Looking into the house through the open doorway, the officers could see Adam Hudson sitting on a couch. The officers observed a glass smoking device and a clear baggy containing what they thought was marijuana sitting on a table in front of the couch. When Hudson saw the officers looking through the doorway, he tried to close the front door. But Officer Dunn stuck his foot in between the door and the frame to prevent it from closing.
Officer Dunn asked Hudson to come outside, but he refused to do so. The officer then opened the door the rest of the way and entered the residence. Hudson told the officers they could not come in the house without a warrant. However, Officer Dunn told Hudson he did not need a warrant to enter because he could see a bag of marijuana sitting in plain view on the table. At that point, Officer Dunn arrested Hudson and placed him in handcuffs.
While he was being arrested, Hudson called out to his roommate, Chambers, the defendant in this case. Hudson told Officer Dunn that Chambers was upstairs. Officer Wilkey then took control of Hudson while Officer Dunn searched the residence, announcing that police were present. In response to Officer Dunn's announcement, Chambers came downstairs.
Officer Dunn asked Chambers if anyone else was in the house, and he said no. Chambers held no weapons and did not appear to pose a threat to the officers. Officer Dunn then went upstairs to ensure that no one else was inside the house. In Chambers' room, Dunn saw at least 10 potted marijuana plants.
Officer Dunn took Chambers outside of the house, and Office Wilkey handcuffed him. After he was advised of his Miranda rights, Officer Dunn asked Chambers if he had any other illegal drugs in the house. According to Officer Dunn, Chambers said that he did not know of any other drugs in the house but indicated that the officers could search the house. Chambers and Hudson were then transported to the Riley County Police Department for interrogation.
Officer Dunn called the Special Investigations Unit for assistance. Detective Bobby Dierks responded, and he discussed with Officer Dunn the possibility of obtaining a search warrant for the residence. Unbeknownst to Officer Dunn and Officer Wilkey, the Special Investigations Unit had information from August and September 2012 that Hudson and Chambers may have been selling drugs and growing marijuana at 502 Freemont Street. In fact, Detective Dierks had a running search warrant affidavit going on the residence, which included an observation that Hudson's vehicle had been involved in a suspected drug transaction in August 2012, information that trash from the home had tested positive for marijuana in September 2012, and tips from concerned citizens about special lights, tarps, and plants in the basement that the citizen thought were part of a marijuana-growing operation.
Officer Wilkey remained at the house until the officers secured a warrant from a district judge at 11:15 p.m. When law enforcement officers executed the search warrant, they discovered marijuana that had been harvested and prepared for smoking as well as an extensive marijuana-growing operation—with more than 100 plants—on the second floor and in the basement.
The State initially charged Chambers with one count of cultivating a controlled substance and one count of possessing a controlled substance with the intent to distribute. The State later amended the complaint to include a charge of possession of a controlled substance with the intent to distribute it within 1000 feet of a school.
Before trial, Chambers moved to suppress all of the evidence obtained on February 5, 2013. Specifically, Chambers argued that the evidence was seized as a result of an unlawful arrest and an unlawful search. According to Chambers, the officers engaged in unlawful conduct at various points throughout the evening of February 5, 2013:(1) when the officers peered through the open front door; (2) when Officer Dunn entered the house without a warrant and without consent to arrest Hudson; (3) when Officer Dunn arrested both Chambers and Hudson; (4) when Officer Dunn conducted a “security sweep” of Chambers' room; (5) when the officers sought to obtain a search warrant using information that was tainted; and (6) when the officers included stale information in the affidavit they used to obtain a search warrant for Chambers' residence.
Following a suppression hearing, the district court granted in part and denied in part Chambers' motion. First, the district court held that Officers Dunn and Wilkey lawfully looked through the door of the house that was left open. In particular, the district court noted that the officers saw marijuana and paraphernalia in plain view on a table simply by looking through the open front room. Second, the district court held that the officers were not permitted to enter the house without a warrant because—while they had probable cause to believe a crime was being committed (possession of marijuana)—there were not exigent circumstances present. Thus, the district court concluded that the entry into the house without a warrant was unlawful.
Nevertheless, the district court found that even if the information in the affidavit obtained unlawfully were excluded, the affidavit used to obtain a search warrant was still sufficient based on the information previously collected by the Special Investigations Unit and the information legally gleaned by Officers Dunn and Wilkey when they looked through the open front door. Accordingly, the district court found that there was sufficient probable cause for the issuance of the search warrant and, therefore, that the State could present the evidence seized during the execution of the search warrant at trial.
At trial, Chambers' attorney admitted in his opening statement that his client had been growing marijuana at his home. But the attorney stated that Chambers had not been growing marijuana for distribution, as the State contended, but was actually growing it for his personal use. Specifically, Chambers' attorney claimed that his client was growing the marijuana for medical purposes to self-treat knee, hip, and shoulder injuries—some of which were sustained during Chambers' service in the United States Navy. According to Chambers' attorney, his client grew so many marijuana plants because it takes large quantities to make only a small of amount of the hashish he needed for medicinal purposes.
Chambers, testifying in his own defense, discussed his background in the military and how he injured two ligaments in his left leg 25 years ago. In addition, he testified that he was subsequently attacked and that the altercation resulted in a tear to his rotator cuff as well as to two popliteal ligaments in his legs. According to Chambers, he continues to suffer from arthritis in his hips. Moreover, Chambers testified that pharmaceutical pain medications did not work for him because they prevented him from functioning normally. Not only did the marijuana work better than prescription drugs, Chambers suggested that it was more affordable in light of the fact that he had no health insurance.
At the close of evidence and outside the presence of the jury, the district court considered a request by Chambers' attorney to argue jury ification during his closing argument. In response, the State contended that it would be inappropriate to allow Chambers to argue to the jury that it had a right to disregard instructions of law. After researching the issue, the district court cited to State v. Naputi, 293 Kan. 55, 66, 260 P.3d 86 (2011), in finding that it would be “inalterably inconsistent” to instruct the jury on the law and then to allow an attorney to argue that the jurors could disregard the instructions. The district court acknowledged, however, that a jury can always decide to disregard the instructions given by the court once it was behind closed doors.
After deliberation, the jury convicted Chambers of both possession and cultivation of marijuana. Chambers immediately moved for a new trial, once again arguing that his attorney should have been allowed to argue jury ification during his closing argument. Chambers also moved the district court for either a durational or dispositional departure sentence. Ultimately, the district court denied Chambers' motion for a new trial. It did, however, grant him a downward-durational-departure sentence of 96 months in prison for cultivating marijuana—instead of the standard 146 months. Likewise, the district court imposed a concurrent 12–month sentence for possession of marijuana.
Analysis
Motion to Suppress
Chambers first contends that the district court erred by partially denying his motion to suppress. In particular, Chambers seeks to suppress any evidence associated with the cultivation of marijuana seized from his residence. Specifically, Chambers argues that the information contained in the search warrant affidavit from August and September 2012 was stale and that had the information obtained in August and September 2012 also been excluded from the affidavit, the search warrant would not have permitted the police to search for evidence of marijuana cultivation. In response, although the State concedes that the district court appropriately suppressed the evidence seized as a result of the initial warrantless entry into Chambers house, it contends that the district court appropriately determined that the evidence subsequently seized as a result of the execution of the search warrant should not be suppressed.
Because the material facts are not in dispute, we engage in an unlimited review of the district court's partial denial of Chambers' motion to suppress. See State v. Julian, 300 Kan. 690, 692, 333 P.3d 172 (2014). When—as here—an affidavit in support of a search warrant is challenged, the task of the reviewing court is to ensure that the district court had a substantial basis for concluding that the judge issuing the warrant had probable cause to do so. State v. Malone, 50 Kan.App.2d 167, Syl. ¶ 2, 323 P.3d 188 (2014), rev. denied 300 Kan. –––– (August 28, 2014). In doing so, we need not find that probable cause existed as a matter of law. Rather, we must examine the search warrant affidavit to determine whether it provided a substantial basis for determining that it was fairly probable that a search of the location would result in the discovery of evidence of the suspected crime. 50 Kan.App.2d 167, Syl. ¶ 2.
We must first decide whether the district court erred by failing to delete the evidence collected in August and September 2012 from the search warrant affidavit for Chambers' residence. Chambers argues that the district court erred by not deleting this information obtained 5 to 6 months prior to the search because it is critical to the staleness inquiry. Generally, when information is stale, it no longer indicates a fair probability that evidence of a crime will be found at a particular place. State v. Hensley, 298 Kan. 422, Syl. ¶ 1, 313 P.3d 814 (2013).
Whether information is stale, however, is determined by taking into account the facts and circumstances of each case. 298 Kan. 422, Syl. ¶ 2. The unique facts of each case are important when determining whether information is stale because the timeliness and relevance of information contained in an affidavit for a search warrant cannot be judged solely on the passage of time. See State v. Bottom, 40 Kan.App.2d 155, 163–64, 190 P.3d 283 (2008), rev. denied 287 Kan. 766 (2009). For instance, when the circumstances suggest ongoing criminal activity, the passage of time becomes less important. 40 Kan.App.2d at 163–64. Further, information that might be stale standing alone may be revived if there is a connection with more recent information to demonstrate that the criminal activity is still ongoing. Hensley, 298 Kan. at 429–30, 33.
In Hensley, the Kansas Supreme Court concluded that an individual's report that the defendant had been his drug dealer 3 years before and information that the defendant's fingerprints had been found on a bag of marijuana nearly 2 years before could be used to support an affidavit for a search warrant. 298 Kan. at 429–30. The court deemed the information viable—despite its age—because it was connected to evidence that the defendant was still selling drugs. 298 Kan. at 430. Further, the court noted that the new evidence that led the police to request the warrant—a large amount of marijuana lawfully found in the defendant's freezer—pointed to the same type of criminal activity that the older evidence did, which revived the probative value of the older evidence when all the evidence was considered together. 298 Kan. at 424, 430, 433.
Here, Chambers argues that by the time the police sought a warrant to search his residence on February 5, 2013, most of the information in the affidavit used to obtain the search warrant was stale. Specifically, he contends that the following information should have been excised from the affidavit before the district court determined if it provided probable cause for a warrant:
• An observation by police that on August 9, 2012, Chambers appeared to engage in a drug transaction with Tyrice Johnson, who the police had recently arrested in possession of 1/2 pound of marijuana and 52 ecstasy pills, and had then returned to his house on Freemont.
• An August 30, 2012, report by a concerned citizen and former roommate that he or she saw black-out curtains on the windows, heat lamps, and an unknown number of plants in the basement of Chambers' house on Freemont in what appeared to be a grow operation.
• Information from a concerned citizen on September 4, 2012, about Chambers and his involvement in illegal-drug activities.
• Information from a concerned citizen on September 5, 2012, that there were at least four potted plants that seemed suspicious in the basement of Chambers' house.
• Test results from trash removed from the Freemont house on September 17, 2012, that contained marijuana residue and also cigarillo wrappers, which the affiant knew people used to smoke marijuana.
Chambers contends that because this information was between 5– and 6–months old by the time the law enforcement officers obtained the search warrant, it lacked value and should not have been used to determine if probable cause existed. But the information Chambers complains about cannot be considered in isolation. Rather, it must be considered in conjunction with the evidence that Chambers admits was viable—the evidence the Officers Dunn and Wilkey lawfully obtained from at his residence on the day the warrant was issued, which included the smell of raw and burnt marijuana, the glass smoking device, and the baggie of what appeared to be marijuana. This evidence—combined with the evidence from 5–6 months earlier—points to ongoing criminal activity, specifically, marijuana cultivation and distribution. Taken together, the older evidence that was not excluded by the district court from the search warrant affidavit and the observations of the officers on the day of Chambers' arrest was sufficient to establish that there was a fair probability that Chambers grew marijuana at his residence on Freemont.
While Chambers is correct that the smoking device and the baggie of marijuana the officers spotted in the house on February 5, 2013, do not tend—in and of themselves—to establish that he was cultivating marijuana, this was not the only evidence the district court could consider. First, the reason the officers walked onto his porch was because they smelled the “very strong” odor of raw marijuana—that is, the odor of unsmoked marijuana. A strong odor of unsmoked marijuana suggested that Chambers had continued to cultivate marijuana because a large amount of the fresh plant would need to have been present inside the house for the officers to have smelled it outside of the house.
When the district court considered the smell the officers detected on February 5, 2013, in conjunction with the tips from the concerned citizen about Chambers' grow operation, the district court had a substantial basis for concluding that probable cause existed to issue a warrant to search Chambers' residence for evidence of possession and cultivation of marijuana. Thus, even without the information Dunn obtained when he unlawfully entered Chambers' house, we conclude that the district court did not err when it determined that there was probable cause to support the search warrant.
Chambers' final argument regarding the suppression of evidence is that even if the district court properly excised all of the appropriate information from the affidavit and still determined that probable cause existed to issue a search warrant, it still should have suppressed all evidence of marijuana cultivation because it was tainted by the officers' unlawful entry into his home. In support of this argument, Chambers cites State v. Reno, 260 Kan. 117, 918 P.2d 1235 (1996). But the facts in Reno are distinguishable from the facts in the present case.
In Reno, the police unlawfully entered the defendant's locked house and then—using only information they had observed while in the house—obtained a search warrant. Unlike the present case, in which much of the information supporting the search warrant was lawfully obtained, all of the information supporting the search warrant in Reno had been obtained as a result of the initial unlawful entry. 260 Kan. at 131 (“It is undisputed that the officers were ‘prompted to seek the search warrant’ by their observation of marijuana in the initial entry, and that observation was presented to the magistrate and was the sole basis of requesting the search warrant.”). Accordingly, the Kansas Supreme Court concluded in Reno that “[t]he district court did not err in suppressing the evidence seized from the defendant's residence.” 260 Kan. at 132–33.
Here, there was substantial lawfully obtained information contained in the search warrant affidavit even after the tainted information was deleted by the district court. Accordingly, we find that the law enforcement officers who executed the search warrant had the authority to seize the items identified in the warrant as well as other items that were in plain view at the time of the search. Therefore, the district court did not err in denying Chambers' motion to suppress all of the evidence obtained as a result of the execution of the search warrant.
Jury Nullification
Chambers also contends that the district court erred by denying his motion for a new trial. In particular, Chambers asserts that he was entitled to a new trial because the district court erred by preventing his attorney from arguing jury ification to the jury during closing. In response, the State contends that the district court appropriately refused to allow Chambers' attorney from arguing jury ification during closing argument and, as such, also properly denied Chambers' motion for a new trial.
It is within a district court's discretion whether to grant a defendant's motion for a new trial. State v. Fulton, 292 Kan. 642, 648, 256 P.3d 838 (2011) (quoting State v. Stevens, 285 Kan. 307, 319, 172 P.3d 570 [2007] ). A judicial action constitutes an abuse of discretion if the action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. See State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). Under an abuse-of-discretion standard, we also review the accuracy of a district court's legal conclusions. Fulton, 292 Kan. at 648, see State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005).
Jury ification occurs when a jury knowingly renders a verdict contrary to the evidence or the law. In other words, as recognized in Silvers v. State, 38 Kan.App.2d 886, 888, 173 P.3d 1167, rev. denied 286 Kan. 1180 (2008), jury ification is:
“A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness.”
Certainly, “jury ification is always a possibility.' “ 38 Kan.App.2d at 890. If a defendant can present evidence in compliance with the rules that plays on the jurors' sympathies or notions of right and wrong, there is nothing to stop a jury from acquitting the defendant regardless of the law or the evidence. 38 Kan.App.2d at 890–91. Nevertheless, the Kansas Supreme Court has expressly disapproved of the use of a jury ification instruction. See State v. McClanahan, 212 Kan. 208, Syl. ¶ 3, 510 P.2d 153 (1973) (“[I]t is the proper function and duty of a jury to accept the rules of law given to it in the instructions by the court, apply those rules of law in determining what facts are proven and render a verdict based thereon.”).
In Naputi, 293 Kan. at 66, the Kansas Supreme Court explained that “[i]t is not the role of the jury to rewrite clearly intended legislation, nor is it the role of the courts to instruct the jury that it may ignore the rule of law, no matter how draconian it might be.” At the same time, while “a criminal jury should not be instructed on its inherent power of ification, a jury instruction telling the jury it ‘must’ or ‘will’ enter a verdict is too close to directing a verdict for the State.” State v. Smith–Parker, 301 Kan. ––––, Syl. ¶ 6, 340 P.3d 485 (2014). Accordingly, a balance must be struck between encouraging jury ification and forbidding a jury from exercising its power of ification.
In the present case, the district court did not prohibit the jury from exercising its inherent power of ification. Instead, the district judge simply refused to permit argument that encouraged jury ification, finding:
“So it seems to me that there is an inherent, insurmountable obstacle in saying that, as the court wrote in Naputi, that you could [not] have an instruction on ification because it violates the proper function and duty of a jury to accept the rules of law given to it in the instructions and ... then turn right around and say that it's okay to argue that the[ jury] should not follow the instruction given by the Court and don't apply those laws in determining the facts that are given. That is inalterably inconsistent.”
We agree with the district court's well-reasoned analysis. Indeed, it would be inconsistent for a district court to instruct a jury that it must follow the law and then to allow an attorney to argue that the jury should not follow the law.
Although we can find no published opinions in Kansas expressly addressing this issue, we note that numerous courts—including the United States Court of Appeals for the Tenth Circuit and the United States District Court for the District of Kansas—have concluded that it is inappropriate for an attorney to argue jury ification during closing arguments. See Crease v. McKune, 189 F.3d 1188, 1194 (10th Cir.1999) (noting that judges should neither encourage nor permit jury ification if it is within their ability to prevent it); United States v. Sealander, No. 95–602, 1996 WL 408368, at *23 (10th Cir.1996) (unpublished opinion) (holding that an argument made by defense counsel to the jury that it had “ ‘the power as jurors to ify any law’ “ was improper); United States v. Lucero, 895 F.Supp. 1421, 1426 (D.Kan.1995) (“defense is not entitled to argue jury ification in closing argument.”); see also United States v. Trujillo, 714 F.2d 102, 106 (11th Cir.1983) (“defense counsel may not argue jury ification during closing argument”); United States v. Brown, 548 F.2d 204, 210 (7th Cir.1977) (finding that defendant could not suggest jury ification to the jury because it would have been inviting jury to disregard the instructions); United States v. Moylan, 417 F.2d 1002, 1007 (4th Cir.1969) (affirming district court's refusal to permit defense counsel to argue jury ification because a jury should not be told that it may disregard the law as declared by a judge); Harding v. State, 736 So.2d 1230, 1231 (Fla.Dist.App.1999) (defense counsel may not argue jury ification during closing argument); People v. Smith, 296 Ill.App.3d 435, 440, 694 N.E.2d 681 (1998) (“the defendant has no right to argue or instruct on jury ification”); State v. Bjerkaas, 163 Wis.2d 949, 960–63, 472 N.W.2d 615 (Wis.App.1991) (finding that it was within district court's discretion to limit defendant's argument on jury ification because it urged jurors to take the law into their own hands); Smith v. State, No. 01–12–00423–CR, 2014 WL 2933220, at *7 (Tex.App.2014) (unpublished opinion) (finding that trial judge did not err by refusing to permit defendant's argument on jury ification), rev. denied November 19, 2014.
Here, the district court properly instructed the jury: “[I]t is your duty to consider and follow all of the instructions. You must decide the case by applying these instructions to the facts as you find them.” See PIK Crim. 4th 50.040. As such, it would be inconsistent—as well as confusing—to allow an attorney to tell jurors that they can simply disregard the law or the facts if they wish to do so. See McClanahan, 212 Kan. at 216–17. Accordingly, we find that to permit an argument by counsel on jury ification would essentially invite jurors to disregard their legal duty and to take the law into their own hands.
Undoubtedly, a jury retains the power to return a verdict in a criminal prosecution that is contrary to the law and the facts if it desires to do so. But it is not the role of the courts or counsel to encourage the jury to do so. As the Illinois Court of Appeals explained, the power bestowed on jurors to disregard the law or the facts in a given case is not diminished simply because a defendant is prohibited from urging them to do so:
“Juries have the power to return verdicts which deny the facts and the law. [Citation omitted.] While a defendant does not have the right to argue jury ification [citation omitted], nor the right to a jury ification instruction [citation omitted], nothing stops him from entertaining a desperate hope that a jury will acquit a defendant on the basis of extraneous factors. [Citation omitted.]” People v. Montanez, 281 Ill.App.3d 558, 564–65, 667 N.E.2d 548 (1996).
Accordingly, we conclude that counsel may not argue jury ification during closing argument.
Finally, we note that the district court allowed Chambers to present evidence that he grew marijuana for medical purposes, and he argued during closing that the jury should not find him guilty. Moreover, Chambers failed to proffer any argument that he desired to make during closing that would have been legally appropriate. We, therefore, conclude that the district court appropriately exercised its discretion in denying Chambers' motion for a new trial.
Affirmed.