Opinion
No. 110,228.
2014-12-5
STATE of Kansas, Appellee, v. Jared HARRIS, Appellant.
Appeal from Jackson District Court; Michael A. Ireland, Judge.Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.Tim Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Jackson District Court; Michael A. Ireland, Judge.
Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant. Tim Liesmann, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STEGALL, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State charged Jared M. Harris with one count of possession of methamphetamine and one count of possession of drug paraphernalia. The district court denied Harris' motion to suppress the drug evidence. Following a bench trial, the district court found Harris guilty and sentenced him to concurrent terms of 40 months in prison for possession of methamphetamine and 12 months in prison for possession of paraphernalia. Harris raises two issues on appeal: (1) The district court erred in conducting a bench trial because Harris never properly waived his right to a jury trial; and (2) the district court erred in denying his motion to suppress. Finding that Harris never properly waived his right to a jury trial and that the district court's ruling on Harris' motion to suppress should be affirmed in part and reversed in part, we reverse Harris' conviction and remand back to the district court for further proceedings consistent with this opinion.
Factual Background
On November 20, 2012, Detective Al Dunn and other law enforcement officers executed a search warrant on Harris' residence. The search warrant authorized Dunn to look for items that were stolen during a burglary including a collection of old keys, a .22 derringer firearm, a computer memory card, and other small objects. During the initial sweep of the home to determine if anyone was present, the officers entered the living room and saw a “pinkish” glass pipe with a white powdery residue sitting in plain view on the coffee table. Dunn recognized this as a type of pipe commonly used to smoke methamphetamine.
Dunn then searched underneath a nearby couch for the stolen items. Instead, he found a syringe and a black case he believed to contain a digital scale commonly associated with illegal drugs. Dunn believed these items were drug paraphernalia. Dunn opened the case and found the scales and a baggie containing a white crystal-like substance that tested positive for methamphetamine. Harris filed a motion to suppress all of the drug evidence on the grounds that the search warrant did not authorize a search for such items. The State argued that all the items were in plain view and the district court agreed, denying Harris' motion.
After Harris' preliminary hearing, the district court informed him:
“[Y]ou have a right to plead guilty, not guilty, or no contest. If you plead not guilty you are entitled to a trial.... You're entitled to confront the witnesses against you, and you're entitled for the State to prove your guilt beyond any reasonable doubt. If you were convicted, either by trial or plea, or, no, I'm sorry, if you were convicted at trial you would have a right [to] an appeal. If you could not afford an attorney to perfect your appeal one would be appointed for you. Do you understand those rights, sir?”
Prior to the start of Harris' bench trial, the district court had the following exchange with Harris and his counsel:
“The Court: The matter was set for a jury trial today. Yesterday the Court was advised that Mr. Harris has wished to withdraw his request for a jury trial and try the matter to the bench; is that correct, Mr. Shepherd?
“Mr. Shepherd: Yes, your honor.
“The Court: Mr. Harris, is that still your desire to withdraw your jury trial request and try it to the Court?
“Harris: Yes.
“The Court: All right. We'll proceed.”
The case proceeded to a bench trial and Harris was convicted.
Analysis
1. Jury Trial Waiver
On appeal, Harris concedes he did not challenge the jury trial waiver in the district court and acknowledges that generally, issues not raised below are not preserved for appeal. Harris argues that because this matter involves the fundamental right to a jury trial, and the issue is necessary to prevent the denial of a fundamental right, the issue may be asserted for the first time on appeal. Our Supreme Court has noted in other jury waiver cases that the general preservation requirement is “prudential rather than jurisdictional.” State v. Beaman, 295 Kan. 853, 857, 286 P.3d 876 (2012). The waiver of the right to a jury trial “should be one of the last to be denied the opportunity for exceptional treatment. If the district court fails to properly advise a defendant of the nature and extent of his or her constitutional right to a jury trial, how does that defendant know to object to the court's failure to inform, i.e., how does the defendant know what the defendant does not know?” State v. Frye, 294 Kan. 364, 370–71, 277 P.3d 1091 (2012). Therefore, the consideration of the denial of a right to a jury trial is appropriate to prevent the denial of a fundamental right. State v. Bowers, 42 Kan.App.2d 739, 740, 216 P.3d 715 (2009).
“Whether a defendant waived the right to a jury trial is a factual question, subject to analysis under a substantial competent evidence standard of review.” Beaman, 295 Kan. at 858. When the facts are undisputed, as they are here, the question of whether the defendant voluntarily and knowingly waived his right to a jury trial is a legal inquiry subject to unlimited appellate review. Beaman, 295 Kan. at 858.
The right to a jury trial is guaranteed by both the United States and Kansas Constitutions. U.S. Const. Amend. VI; Kan. Const. Bill of Rights, § 5. Even so, a defendant may waive that right and have his or her case tried to the court rather than a jury. See K.S.A. 22–3403. The waiver of the right to a jury trial should be “strictly construed to afford a defendant every possible opportunity to receive a fair and impartial trial by jury.” State v. Irving, 216 Kan. 588, 589, 53 P.2d 1225 (1975). “The test for determining the waiver's validity is whether it was voluntarily made by a defendant who knew and understood what he or she was doing.” Beaman, 295 Kan. at 858. Whether the waiver was voluntarily and knowingly made depends on the facts and circumstances of each particular case. Beaman, 295 Kan. at 858. “A court will not accept a jury trial waiver unless the defendant, after being advised by the court of his or her right to a jury trial, personally waives that right, either in writing or in open court.” State v. Raikes, 49 Kan.App.2d 681, 685, 313 P.3d 94 (2013) (citing Irving, 216 Kan. at 589–90.).
After a careful review of the record in this case, it is clear that while the district court informed Harris of his right to a “trial” and that Harris withdrew his “request for a jury trial,” nowhere on the record does the district court inform Harris that he has a right to a jury trial as opposed to a bench trial.
The discussions between Harris and the district court are akin to the colloquy this court reviewed in State v. Cervantes–Cano:
“THE COURT: All right. And we are here for the purpose of waiver of trial by jury; is that correct?
“[Counsel]: That's correct, Your Honor. I have spoken to [Defendant] and he is requesting to waive his right to a jury trial and ask for a trial to the Court.
“[Prosecution]: He also agreed, my understanding is to waive his right to a speedy trial as well.
“[Counsel]: We are asking for a continuance from this Tuesday since obviously we will have to reset it for a bench trial, and so that's fine.
“THE COURT: All right. [Defendant], your attorney has advised me that you wish to waive your right to a trial by jury; is that right?
“THE INTERPRETER: Yes.
“THE COURT: You are saying that you do not want a trial by jury?
“THE INTERPRETER: Yes.
“THE COURT: You want to try the case to the Court and you are waiving your right to a speedy trial; is that correct? Is that correct?
“THE INTERPRETER: Yes.
“THE COURT: All right. [Defendant], also I want to make sure that no one is forcing you to waive your right to trial by jury or threaten you with anything.
“THE INTERPRETER: No one is threatening him.
“THE COURT: Okay. And that is your own free will.
“THE INTERPRETER: Yes.
“THE COURT: All right. I will set it down for—I will take it off of the jury trial docket and then place it on the trial to the Court. Okay.” No. 107,179, 2013 WL 1943060 at *3–4, (Kan.App.2013) (unpublished opinion).
The panel in Cervantes–Cano noted that:
“The problem with this colloquy is that—although the district court asked whether he wanted ‘to waive [his] right to trial by jury’ and ‘try the case to the Court’—the district court failed to advise Cervantes–Cano that he had a right to trial by jury, failed to verify that Cervantes–Caro understood that trying the case ‘to the court’ meant that a judge would determine his guilt, and failed to explain the nature and extent of the right to a jury trial.” 2013 WL 1943060 at *4.
This court then reversed the bench trial and remanded the matter for new trial by jury due to the failure to obtain a knowing and voluntary waiver. Cervantes–Cano, 2013 WL 1943060, at *4. Here, the colloquy at issue was even more limited. In fact, the district court framed the question as a withdrawal of Harris' request for a jury trial rather than as a waiver of his rights. Furthermore, as in Cervantes–Cano, the district court did not advise Harris of his right to a trial by jury and failed to explain to Harris (and verify that Harris understood) the difference between a jury trial and a bench trial.
The State points to State v. Clemons, 273 Kan. 328, 340, 45 P .3d 384 (2002), and State v. Beaman as examples of valid jury trial waivers that contained less than clear explanations from the lower court. However, in both demons and Beaman the district court confirmed that the defendants had made a knowing decision after full consultation with counsel concerning the meaning and impact of that decision. 273 Kan. at 340; 295 Kan. at 860–61. As noted by the Beaman court:
“Full consideration of the facts and circumstances surrounding a defendant's waiver of his or her jury trial right is necessary in deciding whether a knowing and voluntary waiver occurred in any given case. In other words, the form of the process is not a substitute for the court's careful scrutiny of the facts and circumstances, which give important context to the process.” 295 Kan. at 861.
Here, however, we are convinced that neither the process used by the district court in obtaining Harris' alleged waiver nor the specific facts and circumstances of that waiver support a finding that Harris knowingly gave up his right to a trial by jury. As such, we have no choice but to reverse Harris' conviction and remand the matter back to the district court for a new trial—either a jury trial or a trial to the court after a knowing and voluntary jury trial waiver from Harris. 2. Suppression of the Drug Evidence
Next, Harris appeals the district court's denial of his motion to suppress the drug evidence discovered underneath the sofa. The district court held that those items fell within the plain view exception to the warrant requirement. When reviewing a motion to suppress evidence, an appellate court “reviews the factual underpinnings of a district court's decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review.” State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007). “The State bears the burden to demonstrate that a challenged search or seizure was lawful.” 283 Kan. at 349.
The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights guarantee that each person shall be free from unreasonable searches and seizures. “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Plain view is one exception to the search warrant requirement of the Fourth Amendment. State v. Canaan, 265 Kan. 835, 843, 964 P.2d 681 (1998).
A law enforcement official can seize evidence of a crime without a warrant if “ ‘(1) the initial intrusion which afforded authorities the plain view is lawful; (2) the discovery of the evidence is inadvertent; and (3) the incriminating character of the article is immediately apparent to searching authorities.’ “ State v. Graham, 273 Kan. 844, 847, 46 P.3d 1177 (2002) (quoting State v. Parker, 236 Kan. 353, Syl. ¶ 2, 690 P.2d 1353 [1984] ). Inadvertency is no longer required. See State ex rel. Love v. One 1967 Chevrolet El Camino Bearing VIN No. 136807Z141367, 247 Kan. 469, 476, 799 P.2d 1043 (1990) (recognizing the elimination of the requirement in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 [1990] ).
Here, Officer Dunn was searching for evidence of a burglary pursuant to a valid warrant. While within Harris' residence, Dunn saw a pipe commonly used for smoking methamphetamine on a table and he immediately recognized it as contraband. Dunn described what happened next:
“Q. Okay. Now is [the pipe] the only drug related item you found in the house?
“A. No, sir, it is not.
“Q. What other item did you find?
“A. Underneath the couch, it was located by the, uh, coffee table, when I lifted the skirt of the couch up I noticed a syringe [next to] a black case I believed to be digital scales.
“Q. So, uh, when you first laid eyes on that item, you believed it to be digital scales?
“A. Yes, sir.
“Q. And how so, or why?
“A. That particular type of case, um, are common in—in drug cases, Digital scales are small, they're compact. They're usually in a folding type manner. Uh, there was a syringe next to it. It was less than two, two and-a-half feet from the pipe. It's been my experience a case of this nature that close to drug paraphernalia is commonly scales.
“Q. And, uh—And you saw a syringe next to it, you said?
“A. Yes, sir.
“Q. And did you believe that to be drug paraphernalia as well?
“A. Yes, sir, I did.
“Q. And, uh—When, uh—When you were—So at some point you were looking for something under the couch; is that fair to say?
“A. That is correct.
“Q. And what were you looking for under the couch?
“A. Uh, we had multiple items listed on our search warrant. There were arrows, there were, uh, a quiver. Um, a collection of old keys. Um, I believe there was a uh, 22 Derringer pistol, um, along with several other items.
“Q. Were these items small enough that they could of fit under that couch?
“A. Absolutely.
“A. When I opened the case I found a baggie containing a white crystal-like substance. Um, I did a field test on those—on those on that substance. It tested positive for methamphetamine.
“Q. And, uh, did you seize the items upon finding them?
“A. Yes, I did.
“Q. Okay. And you immediately recognized them all as being contraband on first sight?
“A. Yes, sir.”
CROSS–EXAMINATION BY MR. SHEPHERD:
“Q. Sir, you said that, um, when you saw the, um--the pipe that was on -- that was in plain view on the, uh -- on the coffee table, how far away was the couch from that?
“A. Well, I was normal distance from coffee table to couch may be eighteen twenty inches.
“Q. Okay. And you indicated that, um—that scales is are commonly found, you know, in close proximity to other—other items of paraphernalia?
“A. Yes, sir.
“Q. Yeah, and you—And to get to the baggie of methamphetamine you had to actually open up the digital scales?
“A. That is correct.
“Q. Okay, And you haven't—And the digital scales wasn't on the warrant; was it?
“A. No, sir, it was not.
“THE COURT: Wait a minute. But you didn't see the syringe until you lifted the couch?
“THE WITNESS: That's where the scales were.
“THE COURT: I understand that. But you said something about, that the scales were sometimes or something found closer to drug paraphernalia, what was it—How is it that you said that?
“THE WITNESS: That's what I was explaining, Your Honor.
“THE COURT: So it's basically scales are sometimes found close to drug paraphernalia?
“THE WITNESS: That is correct.
“THE COURT: And from where you were standing you could not see the scales? You could not see the syringe?
“THE WITNESS: No, sir. I had to kneel down and lift the skirt of the couch up.
“THE COURT: And during your search of the premises, did you look under any other furniture?
“THE WITNESS: Yes, sir, I did.
“THE COURT: And what did you find under any other furniture?
“THE WITNESS: I don't recall that we found anything pertaining to the case, or any other drug paraphernalia, Um, other than that, I couldn't tell you what was underneath them.
“THE COURT: When—When you looked underneath the couch, was your thought process there may be drug paraphernalia close to this, or I'm looking for the items on the search warrant?
“THE WITNESS: I was looking for the items specifically on the search warrant, Your Honor.
“THE COURT: All right.”
On appeal, Harris concedes that Dunn's search under the sofa was lawful pursuant to the warrant. Harris argues, however, that Dunn did not have probable cause to believe the syringe and the digital scales container were drug paraphernalia. See State v. Lee, 283 Kan. 771, 779, 156 P.3d 1284 (2007) (holding that the plain view exception requirement that the incriminating character of the object be immediately apparent means that “the officer must have probable cause to believe that the object is evidence of a crime.”). We disagree. There was sufficient evidence presented to the district court to support the finding that Dunn had probable cause to believe the syringe and the unopened digital scales were evidence of a crime, and that finding was not erroneous as a matter of law. Dunn saw a case he recognized as containing a scale commonly used for drugs near a syringe and a methamphetamine pipe. Both syringes and scales are identified as drug paraphernalia in Kansas law. See K.S.A.2013 Supp. 21–5701(f)(5) & (l 1). Under these circumstances, the district court did not err in finding that Dunn had probable cause to believe the objects were drug paraphernalia. As such, the district court's conclusion that the seizure of this evidence was within the plain view exception to the Fourth Amendment warrant requirement was not erroneous.
Finally, Harris argues that even if the syringe and the scales were properly seized, Dunn's subsequent search of the container holding the digital scales was a violation of the Fourth Amendment. Harris contends that the baggie of methamphetamine found during that subsequent search should have been suppressed. The district court simply included the baggie within its plain view holding and did not conduct a separate analysis of Dunn's search of the digital scales container.
In rebuttal, the State relies primarily on a harmless error analysis contending that even if the baggie should have been suppressed, the error was harmless because the pipe residue contained methamphetamine and Harris was convicted for possession of methamphetamine by the trial court “not only for the baggie but [also] for the pipe.” Because we have already concluded that Harris is entitled to a new trial due to an inadequate waiver of his right to a jury trial, a harmless error analysis is no longer appropriate.
The State makes two additional arguments as to why the baggie should not be suppressed, both offered without any citation to authority and both made in only the most cursory of fashions. First, the State claims that the search of a container is lawful if the officer has probable cause to believe the container houses evidence of a crime. Second, the State argues that Dunn was authorized to search the digital scales container because it was big enough to have contained items listed in the warrant.
It is true that when “a lawful search is conducted pursuant to a warrant, officers may open a container such as a duffle bag if the object of their search could be found inside.” State v. Schoonover, 281 Kan. 453, 518, 133 P.3d 48 (2006). In this case, however, the record is entirely devoid of any evidence that one of the objects of Dunn's lawful search could have been housed within the digital scales container. While common knowledge concerning the ordinary size of objects such as keys and computer memory cards might tend to support the State's argument, the State simply failed to present any actual evidence to this end. Indeed, we have scoured the record in vain for any evidence at all of this fact. Because the State bears the burden to demonstrate that any search was valid, we cannot just assume or take judicial notice that the digital scales container could have housed one of the stolen items listed on the warrant.
Finally, the State cites to no authority for its claim that Dunn's search was lawful because it was supported by probable cause. Indeed, we can find no such authority. Rather, federal case law reaches the opposite conclusion:
“In United States v. Donnes, 947 F.2d 1430, 1436 (10th Cir.1991), we held that the warrantless search of a closed, opaque camera case could not be justified as a plain view search. There, we assumed without deciding that the warrantless seizure of the container was valid under the plain view doctrine but held that the police subsequently violated the Fourth Amendment by opening the container and examining its contents without a search warrant. We reasoned that although ‘[p]robable cause to believe that contraband is stored in a container will justify a warrantless seizure’ of the object, the closed, opaque container did not subject its contents to plain view, and the police consequently could not search the container absent a warrant. [947 at F 2d 1436–39.] In cases involving closed containers, therefore, the plain view doctrine may support the warrantless seizure of a container believed to contain contraband but any subsequent search of the concealed contents of the container must be accompanied by a warrant or justified by one of the exceptions to the warrant requirement. See Brown, 460 U.S. at 749–51, 103 S.Ct. at 1547–48 (Stevens, J., concurring) (plain view doctrine supports the warrantless seizure of a closed container but not the warrantless search of its contents, which were not visible to the police). See also Horton, 110 S.Ct. at 2310 n.11 (the seizure of a container in plain view ‘does not compromise the interest in preserving the privacy of its contents because it may only be opened pursuant to a search warrant or one of the well delineated exceptions to the warrant requirement.’).” United States. v. Corral, 970 F.2d 719, 725 (10th Cir.1992).
The State does not argue that any of the exceptions to the warrant requirement justified Dunn's search of the digital scales container, and we decline to assume such an exception in the absence of any evidence or argument to support that conclusion. Therefore, the district court's denial of Harris' motion to suppress the baggie of methamphetamine was error. We thus remand to the district court with directions to enter an order suppressing the evidence obtained from the illegal search of the digital scales container.
Affirmed in part, reversed in part, and remanded with directions.