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State v. Hubbard

Court of Appeals of Kansas.
Apr 22, 2016
369 P.3d 341 (Kan. Ct. App. 2016)

Summary

comparing State v. MacDonald , 253 Kan. 320, 856 P.2d 116, with Ibarra , 282 Kan. 530, 147 P.3d 842, and State v. Riley , No. 93127, 2006 WL 90089 [Kan. App. 2006] [unpublished opinion]

Summary of this case from State v. Hubbard

Opinion

No. 113,888.

04-22-2016

STATE of Kansas, Appellee, v. Lawrence C. HUBBARD, Appellant.

James E. Rumsey, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.


James E. Rumsey, of Lawrence, for appellant.

Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

MEMORANDUM OPINION

PER CURIAM.

Lawrence C. Hubbard appeals his convictions of possession of marijuana and possession of drug paraphernalia. Hubbard claims the district court erred by denying his motion to suppress the evidence because the law enforcement officers' initial warrantless entry into his apartment violated his constitutional rights. He also claims that the omission of material facts in the officer's affidavit for a search warrant rendered the affidavit invalid. Finally, Hubbard claims that the officer's testimony that she smelled raw marijuana coming from the apartment constituted inadmissible expert testimony. Finding no error, we affirm the district court's judgment.

Factual and Procedural Background

On the evening of November 16, 2013, Lawrence police officer Kimberly Nicholson was out on patrol. She was conducting surveillance at a convenience store she believed was a place she would likely find drunk drivers, expired vehicle tags, or other crime. Nicholson parked approximately 200 to 300 feet from the cars that came into the convenience store; she used small binoculars to observe the people and obtain license plate information so she could run the plates of cars that entered the parking lot. At approximately 10:09 p.m., a brown Buick pulled into the convenience store parking lot and Nicholson ran its license plates.

Nicholson learned that the Buick was registered to Jessica Fiebig and that Irone Revely had been driving the vehicle when it was stopped the prior month. When Nicholson checked for active warrants on Irone, she found none. However, she learned of a warrant for Irone's brother, Chayln Revely, who was described as a black male, approximately 5' 7? tall, weighing about 140 pounds. Nicholson saw a man she believed matched Chayln's description get out of the Buick and walk into the convenience store. The Buick's driver, who Nicholson identified as Irone, also went into the store, then both men returned to the Buick and drove out of the parking lot.

Nicholson followed them, hoping to stop the Buick for a traffic violation, but she did not observe any violations. She followed the Buick to an apartment complex and parked approximately 50 to 100 feet away from where the Buick parked. The passenger got out of the Buick and ran into an apartment. Nicholson walked toward the apartment and asked Irone whether the person who just went into the apartment was his brother. Irone did not answer, and he and Nicholson continued walking toward the apartment.

When Nicholson was about 2 feet from the door to the apartment, Hubbard came outside. As it turned out, Hubbard was the passenger in the Buick instead of Irone's brother. Nicholson later testified that when Hubbard came through the door, she “smelled a strong odor of raw marijuana emanating from the apartment.” When Nicholson saw Hubbard face-to-face, she realized he was not Chayln Revely. Hubbard admitted that he lived in the apartment and said that he had not run inside; he was simply trying to get inside because he was having a party.

At that point, Nicholson told Hubbard and Irone that she smelled a strong odor of raw marijuana coming from the apartment and she called for backup. Hubbard denied the odor, stating that his lawyer had told him that humans cannot smell marijuana. The blinds on a front window were partially raised and Nicholson saw 5 to 7 people in the living room. Nicholson later testified that when Hubbard saw her look through the window, he went inside the apartment and shut the blinds. As Hubbard passed through the door, Nicholson again smelled the odor of raw marijuana in the apartment.

When Nicholson's backup arrived, the officers decided to have the people in the apartment leave and apply for a search warrant. Nicholson later explained that they had the people leave the apartment so that they could not destroy evidence or pose a threat to officer safety. After the people left the apartment, Officer Ronald Ivener, Nicholson, and another officer “did a security sweep of the residence to make sure no one was hiding” inside the apartment. During the search, Nicholson saw bongs and pipes on a window sill, a black handgun under a bed, and another bong and a safe in a closet, all in a room later discovered to be Hubbard's bedroom.

Nicholson left the apartment and applied for a search warrant. The search warrant affidavit is not included in the record on appeal. Nicholson later returned to the apartment and executed the search warrant. During the search pursuant to the warrant, Nicholson found raw marijuana in a Tupperware container in the safe in Hubbard's closet. The bongs had no raw marijuana in them. Officers also found a small bit of raw marijuana on a partially burned cigarillo in the living room.

On December 20, 2013, the State charged Hubbard with one count of possession of marijuana and one count of possession of drug paraphernalia, both class A nonperson misdemeanors. The district court appointed counsel, who filed a motion to suppress the evidence. In the motion, Hubbard argued that the initial warrantless entry into the apartment was illegal and therefore tainted the later-obtained search warrant and the search pursuant to that warrant.

Hubbard later filed a motion asking the district court to admit into evidence an article on marijuana odor perception which had been published in 2004 by the University of Virginia School of Law. The article reported the results of experiments based on circumstances in which law enforcement officers had reported smelling marijuana. The authors concluded that the results “thr[e]w into question, in two specific instances, the validity of observations made by law enforcement officers using the sense of smell to discern the presence of marijuana.”

Hubbard filed an amended motion to suppress expanding his argument that the search warrant had been obtained based on Nicholson's false claim that she could smell the odor of raw marijuana coming from the apartment. In a memorandum in support of his motion to suppress, Hubbard contended: (1) Nicholson's opinion that she smelled raw marijuana coming from inside the apartment was insufficient to provide probable cause that the apartment contained the fruits or instruments of a crime; (2) Nicholson's statement that she smelled raw marijuana was either false or made with reckless disregard for the truth, since the only raw marijuana subsequently found in the apartment was in a closed plastic container in a locked safe in a closet in a bedroom approximately 30–40 feet from Nicholson; and (3) there was no factual basis for the initial entry into the apartment, purportedly a protective sweep for officer safety.

On September 5, 2014, the district court held a hearing on the motion to suppress. Ivener testified that when he arrived at Hubbard's apartment on the night in question, he “could smell the potent smell of raw marijuana emitting from inside of the apartment” when the door of the apartment opened and closed. Ivener also testified that he looked through a window and saw 10 to 15 people in the apartment. After everyone came out of the apartment, Ivener searched the apartment to ensure no one was left inside who could either destroy evidence or present a safety concern for officers. He looked only in places a person could hide. Ivener testified that during the initial sweep, he noticed “the continuous smell” of both raw and burnt marijuana, which he described during cross-examination as “overwhelming.” Ivener estimated that during his approximately 13 years in law enforcement, he had smelled marijuana approximately 100 times, in addition to smelling both burning and raw marijuana as part of his training.

Nicholson also testified about the events on the night in question. She explained that as part of her law enforcement training, she had smelled both raw and burned marijuana. Over her 7 years as a police officer, Nicholson estimated that she had smelled raw marijuana 200 to 500 times and burned or burning marijuana 100 to 300 times.

Hubbard testified on his own behalf. He clarified that he had not run into his apartment; he had “power-walked” inside to tell the people at the party to quiet down because there was a police officer in the parking lot. Hubbard further denied any odor of raw marijuana in his apartment and testified that no one was smoking cigarillos that evening; they were smoking cigarettes and burning incense. Hubbard contested Nicholson's estimation that she was 2 feet from the door when she said she smelled the raw marijuana; Hubbard asserted that Nicholson had been 6 or 7 feet from the door. Hubbard testified that after he established with Nicholson that he was not Chayln Revely, he became angry and told Nicholson that he felt like a victim of racial profiling. At that point, according to Hubbard, Nicholson said, “Well, now that I'm here, I detect the smell of marijuana.” When Hubbard refused Nicholson's request to enter the apartment, Nicholson said she was calling her supervisor and they would apply for a search warrant.

On February 4, 2015, the district court filed a memorandum decision denying the motion to suppress evidence. The district court stated that because of the differences between the studies examined in the journal article and the instant case, the court gave no weight to the journal article. The district court found that the odor of raw marijuana from Hubbard's apartment “was sufficient probable cause to seek and obtain a search warrant.” The district court also found there was no evidence of “any deception or false statements made in the manner in which the officers went about securing the search warrant.” Finally, the district court found that the initial warrantless entry into Hubbard's apartment was lawful “to check the apartment to ensure no one had stayed behind that may have been attempting to get rid of illegal substances or would place the officers in danger.”

Hubbard filed a motion to reconsider the motion to suppress evidence. The district court took up the motion to reconsider at the bench trial, which occurred on May 8, 2015. Hubbard argued that Nicholson improperly testified as an expert witness when she testified that she could smell raw marijuana coming from Hubbard's apartment. In response, the State argued that Nicholson was not testifying as an expert witness; rather, she was testifying as a lay witness with training and experience in detecting the odor of marijuana. The district court agreed with the State and denied the motion to reconsider.

As for the bench trial, the parties stipulated to the facts, agreed to the exhibits the district court could consider, and the defense presented no evidence. The district court took the matter under advisement and, on May 12, 2015, the district court found Hubbard guilty of possession of marijuana and possession of drug paraphernalia. The district court sentenced Hubbard to 12 months in jail and placed him on probation for 12 months. Hubbard timely appealed his convictions.

Motion to Suppress

Hubbard first claims the district court erred in denying his motion to suppress because the warrantless entry into his apartment, ostensibly for officer safety and to prevent the destruction of evidence, violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution and § 18 of the Kansas Constitution Bill of Rights. Hubbard mentions § 18 only once and does not apply its relevance further. Therefore, we will not address this constitutional provision as a basis for error. See State v. Bolze–Sann, 302 Kan. 198, 219, 352 P.3d 511 (2015) (“[P]ressing a point without pertinent authority is akin to failing to brief an issue, which results in a party waiving or abandoning the argument. [Citation omitted.]”). We note that § 15, not § 18, of the Kansas Constitution Bill of Rights prohibits unreasonable searches and seizures. See State v. Johnson, 253 Kan. 356, 362, 856 P.2d 134 (1993).

The State argues that the initial warrantless entry into Hubbard's apartment was justified for officer safety and to prevent the destruction of evidence. The State also argues that Nicholson's detection of the odor of raw marijuana outside the apartment provided probable cause for the issuance of the subsequent search warrant. Finally, the State argues that even if there was not probable cause to obtain the search warrant, the evidence seized from Hubbard's apartment is admissible under the good-faith exception to the exclusionary rule.

The standard of review of a district court's decision on a motion to suppress applies a bifurcated standard. The appellate court reviews the district court's factual findings to determine whether they are supported by substantial competent evidence. The ultimate legal conclusion is reviewed using a de novo standard. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014).

In the district court, the State characterized the initial, warrantless entry into Hubbard's apartment as a lawful “protective sweep” for officer safety and a lawful search to ensure the preservation of evidence. The district court agreed on both counts.

Protective Sweep

The State and the district court both characterized the initial warrantless entry into Hubbard's apartment as a “protective sweep.” However, neither the State nor the district court provided any citation to legal authority that defines such a sweep or allows a warrantless entry into a private residence to conduct a “protective sweep.”

The United States Supreme Court has defined a “protective sweep” as “a quick and limited search of [the] premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding.” (Emphasis added.) Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); see Johnson, 253 Kan. at 370. Such a search is permissible without a warrant where “the searching officer ‘possesse[d] a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]” the officer in believing’ [citation omitted] that the area swept harbored an individual posing a danger to the officer or others.” Buie, 494 U.S. at 327.

Although Nicholson and Ivener testified that one of the reasons for the initial search was officer safety, the protective sweep exception does not apply here for the simple reason that this search was not incident to an arrest. Also, Nicholson and Ivener failed to articulate specific facts that reasonably warranted the belief that anyone in Hubbard's apartment posed a danger to the officers or others. Thus, the district court's ruling that the initial search was justified as a “protective sweep” was erroneous.

Preservation of Evidence

The district court also ruled that the initial warrantless entry into Hubbard's apartment was permissible to ensure the preservation of evidence. Specifically, the district court found that the police “were within their authority to check the apartment to ensure no one had stayed behind that may have been attempting to get rid of illegal substances.” Justification for this sort of warrantless search—“where the police reasonably determine, from the surrounding circumstances, that the evidence will be destroyed or concealed before a search warrant can be obtained”—stems from the probable cause plus exigent circumstances exception to the warrant requirement. See State v. Hardyway, 264 Kan. 451, 464–65, 958 P .2d 618 (1998) (Lockett, J., dissenting).

Thus, the first question in determining whether the initial warrantless entry into Hubbard's apartment was lawful is whether there was probable cause for the search. See State v. Ibarra, 282 Kan. 530, 544, 147 P.3d 842 (2006) (“Where probable cause is absent, the existence of exigent circumstances is irrelevant.”). Probable cause to justify a search “requires the presence of information which would lead a reasonably prudent person to believe that a crime has been or is being committed and that evidence of the crime may be found on a particular person, in a specific place, or within a specific means of conveyance. [Citation omitted.]” See State v. Mell, 39 Kan.App.2d 471, 482, 182 P.3d 1, rev. denied 286 Kan. 1183 (2008).

The Kansas Supreme Court has not yet directly decided whether the odor of marijuana alone is sufficient to provide the probable cause required to support a warrantless search of a home. But Kansas appellate courts have held that the odor alone is sufficient to provide probable cause to support a warrantless search of a vehicle. See State v. MacDonald, 253 Kan. 320, 325, 856 P.2d 116 (1993) (“The marijuana odor provided the basis for the suspicion that a crime had been committed and that evidence in connection with the crime was located within the automobile.”); State v. Goff, 44 Kan.App.2d 536, 539, 239 P.3d 467 (2010) (“The smell of raw marijuana alone is sufficient to give an officer both reasonable suspicion and probable cause [to search a vehicle].”), rev. denied 292 Kan. 967 (2011); see also State v. Stevenson, 299 Kan. 53, 58–59, 321 P.3d 754 (2014) (recognizing “bright-line rule” established in MacDonald ).

In at least one case, this court has applied the rationale in MacDonald to searches of homes. In State v. Riley, No. 93,127, 2006 WL 90089, at *3 (Kan.App.2006) (unpublished opinion), this court held that detection of the odor of marijuana by two trained police officers standing outside the defendant's doorway—facts almost identical to the case herein—constituted sufficient probable cause for the officers to obtain a warrant to search the defendant's house. In upholding the search warrant, the Riley court specifically rejected the defendant's attempt to distinguish MacDonald from her situation because police searched her home and not a vehicle. 2006 WL 90089, at *3–4.

In Ibarra, our Supreme Court held that the odor of ether, standing alone, did not constitute sufficient probable cause to justify the warrantless search of a vehicle. See 282 Kan. at 543. The court focused on the fact that ether is a legal substance and “[t]he strong odor of ether emanating from a house or a vehicle is as consistent with lawful activity as it is with criminal activity.” 282 Kan. at 543. As the State points out, however, marijuana is not a substance that may be legally possessed in the state of Kansas. See K.S.A.2015 Supp. 21–5706(b)(3) (criminalizing the possession of marijuana). Therefore, the odor of marijuana is not consistent with lawful activity.

Here, Nicholson testified that when Hubbard came through the door, she “smelled a strong odor of raw marijuana emanating from the apartment.” When Hubbard returned through the door, Nicholson again smelled raw marijuana in the apartment. Ivener testified that when he arrived at Hubbard's apartment, he “could smell the potent smell of raw marijuana emitting from inside the apartment.” Ivener later described the odor as “overwhelming.” The officers conducted a cursory sweep of the apartment to make sure that no one was inside who could destroy evidence. They looked only in places where a person could be hiding. After the cursory sweep, Nicholson applied for a search warrant.

In light of the holdings in MacDonald and Riley and based on the testimony of Nicholson and Ivener, we conclude that the strong odor of marijuana emanating from the apartment constituted probable cause for the officers to make a warrantless entry into the apartment-at least for the limited purpose of preventing the destruction of evidence until a search warrant could be obtained. The information available to Nicholson and Ivener was sufficient to lead a reasonably prudent person to believe that the crime of possession of marijuana had been committed and that evidence of that crime might be found in Hubbard's apartment. See Mell, 39 Kan.App.2d at 482 (defining probable cause).

We stop short of finding that the odor of marijuana would have provided probable cause for the officers to conduct a detailed search of Hubbard's apartment for illicit drugs, including drawers and containers within the apartment. The officers conducted such a search only after obtaining a warrant. The search warrant affidavit is not included in the record on appeal. We do not know what allegations Nicholson made in the search warrant affidavit to establish probable cause to search the apartment and, in fact, we cannot be certain from the record whether Nicholson's observations during her initial entry into the apartment were included in the affidavit. Whether the search warrant affidavit established probable cause to search Hubbard's apartment for drugs is not an issue in this appeal.

The justification of a warrantless search to prevent destruction of evidence, however, requires not just probable cause—there must also be exigent circumstances.

“ ‘Exigent circumstances exist where the police officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband. In each case, the particular facts must be considered. [Citation omitted.]’ [Citations omitted.] [Our Supreme Court] has emphasized that the exigent circumstances exception to the warrant requirement ‘do[es] not include situations where only a mere possibility exists that evidence could be destroyed or concealed. [Citation omitted.]’ [Citation omitted.]” State v. Fewell, 286 Kan. 370, 384–85, 184 P.3d 903 (2008).

In both district court and on appeal, Hubbard relies on State v.. Huff, 278 Kan. 214, 92 P.3d 604 (2004), to support his contention that there were insufficient exigent circumstances for the officers to enter his apartment to prevent the destruction of evidence. In Huff, Salina police officers received an anonymous tip regarding loud music and the smell of marijuana coming from an apartment. When two officers arrived at the apartment, they did not hear loud music and could not smell marijuana. They also could not see inside the apartment. The officers knocked on the door and a resident came out of the apartment and shut the door behind her. As she exited the door, the officers detected the odor of burnt marijuana. The officers did not ask the resident if there were other people inside the apartment; the resident made no gestures and the officers heard no noise to indicate that there were other occupants. The officers asked the defendant for consent to search her apartment and she refused.

At that point, the officers arrested the resident for obstruction and entered the apartment. One of the officers later testified that he believed it was necessary to secure the residence to prevent destruction of evidence, despite the lack of any objective evidence that the apartment was inhabited by anyone other than the resident who had answered the door. The officers found two men, the defendants, inside the apartment and detained them. The officers then obtained a search warrant and returned to conduct a thorough search of the apartment. They found methamphetamine and other evidence of drugs. The defendants ultimately were charged with possession of methamphetamine.

The district court granted the defendants' motions to suppress, finding that the officers' entry into the apartment was unsupported by an articulable suspicion that there was anyone inside. On appeal, the State defended the officers' entry into the apartment by asserting that “they merely conducted a protective sweep to maintain the status quo and prevent the destruction of evidence.” 278 Kan. at 219. The Kansas Supreme Court disagreed with the State, finding there were insufficient exigent circumstances to support the officers' initial entry into the apartment. 278 Kan. at 220–21. The Supreme Court specifically stated that the absence of evidence that someone remained inside the apartment “meant the officers had no reason to worry about evidence destruction.” 278 Kan. at 221. The Supreme Court held that the factual underpinnings of the district court's decision were amply supported by substantial competent evidence and the district court's legal reasoning was sound. 278 Kan. at 221.

Although the facts in Huff are similar to the facts herein, there are important differences between the two cases. Here, when Nicholson and Ivener detected the odor of marijuana outside the door of Hubbard's apartment, the officers were absolutely certain that other people were inside the apartment. Nicholson looked through the blinds on the front window and saw 5 to 7 people in the living room. Ivener later testified that he looked through the window and saw 10 to 15 people in the apartment. The officers ordered the people to leave the apartment, but they could not be sure that everyone had left. These facts provided justification for Nicholson and Ivener to be concerned about the destruction of evidence that did not exist under the facts in Huff.

In Huff, our Supreme Court identified several factors useful in determining whether the officers in that case were justified to initially enter the apartment without a warrant. See 278 Kan. at 220; State v. Weas, 26 Kan.App.2d 598, 600–02, 992 P.2d 221 (1999), rev. denied 268 Kan. 855 (2000). But both the Kansas Supreme Court case Weas relied upon—State v. Platten, 225 Kan. 764, 769–70, 594 P.2d 201 (1979)—and the federal case that originally articulated the factors—United States v. Reed, 572 F .2d 412, 424 (2d Cir.), cert. denied 439 U.S. 913 (1978)—determined whether there were exigent circumstances to justify a search or entry into a private residence to effectuate a warrantless arrest. The factors identified in Huff were as follows:

“ “ ‘(1) [T]he gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause [to believe that the suspect committed the crime]; (4) strong reasons to believe that the suspect is in the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended and (6) the peaceful circumstances of the entry....’ “ Weas, 26 Kan.App.2d at 601.” 278 Kan. at 220.

However, the Huff factors are not helpful in determining whether the required exigent circumstances were present in the instant case where the State asserted that the warrantless search was justified by law enforcement officers' desire to prevent the destruction of evidence. Instead, caselaw directs that exigent circumstances involving the threat of destruction of evidence exist “ ‘where the police officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband. In each case, the particular facts must be considered.’ “ See Fewell, 286 Kan. at 384–85. Kansas courts have considered the following factors when determining whether there were exigent circumstances involving the destruction of evidence:

“(1) the time needed to secure a search warrant; (2) the reasonableness of the officers' belief the evidence may be immediately lost; (3) potential danger to the officers guarding the site while awaiting a warrant; (4) whether those persons with possession of the evidence are aware of the officers' presence; and (5) the ease with which the evidence might be destroyed or hidden. [Citations omitted.]” State v. Dugan, 47 Kan.App.2d 582, 605, 276 P.3d 819 (2012).

Our court's decision in Duggan is particularly instructive. In that case, the defendant was involved in a non-injury accident and fled the scene without exchanging insurance information. Witnesses reported the defendant's tag number to the police and an officer arrived at the defendant's residence at the same time as the defendant. The defendant activated the automatic garage door opener and drove his SUV into the garage, but the officer stuck her foot underneath the door to prevent it from closing. After an investigation, the defendant was charged and subsequently convicted of driving under the influence of alcohol (DUI) and leaving the scene of a non-injury accident.

On appeal, one of the issues was whether the officer's warrantless entry into the defendant's garage was justified to prevent the potential loss of evidence. This court held that it was not. 47 Kan.App.2d at 604–06. This court noted that the officer never testified that she entered the garage to prevent the loss of evidence. 47 Kan.App.2d at 605. Moreover, the officer was unaware that the defendant had been drinking when she breached the garage, so preserving evidence of the DUI was not a factor. 47 Kan.App.2d at 606. The damage to the defendant's SUV was evidence of the crime, but this court noted that repairing vehicle damage was time consuming work and did not create an exigency to circumvent a warrant. 47 Kan.App. at 605. Interestingly, this court noted that the situation would have been different had the officer been dealing with a “drug trafficker flushing contraband down the toilet.” 47 Kan.App.2d at 605.

Hubbard's case is clearly distinguishable from the facts in Duggan. Here, Ivener testified that the purpose of the warrantless entry was “[t]o make sure there was nobody inside. Any persons inside that would have been destroying any evidence or safety concerns for officer safety.” When asked whether anything specific indicated that there was someone still in the apartment, Ivener said that he did not know how many people had been in the apartment originally and whether they had all left. Nicholson similarly testified that law enforcement asked everyone to leave the apartment so that “evidence could not be destroyed.” She explained, “[I]f you allow people to stay inside a residence, it's easy for them to grab marijuana or other illicit narcotics and flush it down the toilet. They can flake items in their pockets.... Evidence can be hidden or destroyed.”

The testimony of Ivener and Nicholson established several of the factors set forth in Dugan to determine whether there were exigent circumstances involving the destruction of evidence. Both law enforcement officers smelled marijuana outside the apartment and reasonably believed the evidence may be immediately lost or destroyed. The officers did not know how many people originally were in the apartment, so they could not be sure that everybody had left the apartment at the officers' request. Nicholson explained how easy it is to destroy marijuana by flushing it down the toilet. Also, there was evidence that the people inside the apartment were aware of the officers' presence.

Here, the officers conducted a cursory sweep of the apartment to make sure that no one was hiding inside who could easily destroy evidence of the suspected crime. The officers looked only in places where a person could be hiding. Under the circumstances, the officers reasonably believed there was a threat of imminent loss, destruction, removal, or concealment of evidence or contraband. See Fewell, 286 Kan. at 384–85. This fact established sufficient exigent circumstances to justify the officers' limited entry into the apartment to ensure the preservation of evidence. Thus, we conclude that the officers' initial warrantless entry into Hubbard's apartment was lawful and the district court did not err in denying Hubbard's motion to suppress evidence on this ground.

Omission of Material Facts in Search Warrant Affidavit

Next, Hubbard claims that the omission of material facts in Nicholson's affidavit for a search warrant rendered the affidavit invalid. Specifically, Hubbard argues that “Nicholson did not state accurately where she was when [Hubbard's] apartment door opened and ... she supposedly smelled ‘raw’ marijuana.” Hubbard also claims that Nicholson failed to state in the affidavit that she did not see any raw marijuana during the cursory sweep of the apartment, even though she had smelled it from outside. The State argues that Nicholson's affidavit contained no omissions, false statements, or statements made in reckless disregard of the truth, so as to render the search warrant invalid.

As previously noted in this opinion, the affidavit in question is not included in the record on appeal. It is Hubbard's burden, as the appellant, to designate a record which affirmatively supports his claims of error; if he does not do so, this court presumes that the district court's decision was proper. See State v. Kettler, 299 Kan. 448, 465, 325 P.3d 1075 (2014); State v. Navarro, 272 Kan. 573, 588, 35 P.3d 802 (2001).

Here, the district court explicitly stated: “[T]his court finds no evidence to support the defendant's allegation of a material omission of information in the affidavit seeking the search warrant.” Because Hubbard failed to include the affidavit in the record on appeal, this court cannot review the propriety of the district court's finding. Thus, Hubbard's argument on this issue fails.

Nicholson's Testimony That She Smelled Raw Marijuana

In his final issue, Hubbard claims that Nicholson's testimony that she smelled raw marijuana coming from the apartment constituted inadmissible expert testimony. The State responds that the district court correctly found that Nicholson testified as a lay witness with appropriate training and experience on detecting the odor of marijuana.

“ ‘Whether a witness, expert or layman, is qualified to testify as to his or her opinion is to be determined by the trial court in the exercise of its discretion. That discretion is not subject to review except for abuse.’ [Citation omitted.] Discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. [Citation omitted.]” Pullen v. West, 278 Kan. 183, 210–11, 92 P.3d 584 (2004).

Prior to the bench trial, the district court addressed Hubbard's claim that Nicholson had improperly testified as an expert witness at the suppression hearing and stated:

“[T]his court finds that the officer was testifying as a lay person. She's not an expert in the field of odors. She's not an expert in marijuana, but she does have training. And there are numerous cases that allow for officers to testify based on their individual personal observations and their training just to become a police officer, and she's testified to that, and this court is aware of that training. I find her training was sufficient. It goes more to the weight that her testimony gives and not the admissibility of it. And for that reason the motion to suppress is denied.”

On appeal, both Hubbard and the State characterize Nicholson's testimony as opinion testimony subject to K.S.A.2015 Supp. 60–456. However, we disagree with that characterization. Nicholson simply testified that she smelled the odor of raw marijuana. This was not opinion testimony; Nicholson was a fact witness. Nicholson did not testify as to any conclusions, opinions, or inferences she made due to the odor of raw marijuana.

Nicholson's testimony was governed by K.S.A. 60–419. Under that statute, a witness may testify on a relevant or material matter as long as there is evidence that he or she “has personal knowledge thereof, or experience, training or education if such be required. Such evidence may be by the testimony of the witness himself or herself.” Nicholson's testimony that she smelled raw marijuana was based on her personal knowledge of the odor of raw marijuana, and she testified at the suppression hearing about the training and experience that allowed her to recognize the odor of raw marijuana. Thus, the district court did not err in admitting the testimony.

Finally, Hubbard continues to press his belief that the journal article he submitted to the district court disproves the idea that human beings can detect the odor of marijuana. According to Hubbard, Nicholson should have been required to testify as an expert witness and only after establishing that her sense of smell was a reliable method by which to detect marijuana. There are two problems with Hubbard's argument.

First, as the State notes, Hubbard's understanding of the article, which is included in the record on appeal, ignores certain statements in the article. The article detailed experiments conducted to better understand whether humans can discern the odor of marijuana. The authors conceded: “[T]hese experiments are potentially limited to the rather specific conditions under which they were performed, and by the relatively small number of participants tested. Thus, their findings need not necessarily generalize to other, even seemingly similar, situations.” Contrary to Hubbard's general assertions, the article did not conclude that human beings cannot discern the odor of marijuana.

Second, to the extent that the article is relevant, it goes to the weight or credibility and not the admissibility of Nicholson's testimony. The district court clearly found Nicholson's testimony that she smelled the odor of raw marijuana credible despite Hubbard's characterization of the article's findings. The district court indicated that it considered the studies in the article, but in the end gave no weight to the evidence. “An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses.” State v. Keel, 302 Kan. 560, 566, 357 P.3d 251 (2015).

Affirmed.


Summaries of

State v. Hubbard

Court of Appeals of Kansas.
Apr 22, 2016
369 P.3d 341 (Kan. Ct. App. 2016)

comparing State v. MacDonald , 253 Kan. 320, 856 P.2d 116, with Ibarra , 282 Kan. 530, 147 P.3d 842, and State v. Riley , No. 93127, 2006 WL 90089 [Kan. App. 2006] [unpublished opinion]

Summary of this case from State v. Hubbard
Case details for

State v. Hubbard

Case Details

Full title:STATE of Kansas, Appellee, v. Lawrence C. HUBBARD, Appellant.

Court:Court of Appeals of Kansas.

Date published: Apr 22, 2016

Citations

369 P.3d 341 (Kan. Ct. App. 2016)
2016 WL 1614177

Citing Cases

State v. Hubbard

A Court of Appeals panel affirmed. State v. Hubbard , No. 113888, 2016 WL 1614177 (Kan. App. 2016)…