Opinion
109,953.
10-10-2014
STATE of Kansas, Appellee, v. Laveina S. WHITE, Appellant.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., LEBEN and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM:
Police officers found a vial, a syringe, and a baggie containing methamphetamine in Laveina White's car during a traffic stop. White was convicted of possession of methamphetamine, possession of drug paraphernalia, and a traffic offense.
On appeal, she claims that the district court wrongly told the jury that drug paraphernalia “shall include” syringes, giving it no choice but to convict her. But the court went on to give the jury a series of factors to use in deciding whether any object is drug paraphernalia, so the instruction as a whole fairly told the jury what it had to decide. White also claims that the evidence was insufficient to show that she intended to possess the methamphetamine and the syringe, but we find sufficient circumstantial evidence tying her to these items.
White also raises two other issues that we cannot review. She challenges the admission of certain evidence, but she failed to object when the evidence was presented at trial and thus has not preserved her objection for appeal. She also challenges her sentence, but she recognizes that Kansas Supreme Court precedent provides that we have no jurisdiction to consider the specific sentencing claim she is making. We have found no reversible error, and we affirm the district court's judgment.
Factual and Procedural Background
On appeal, White challenges the sufficiency of the evidence to convict her for possession of methamphetamine and the syringe found in her car. Accordingly, we must review the evidence presented at trial in some detail. Sufficiency of the evidence is judged by taking the evidence in the light most favorable to the State (since the jury found the facts in its favor). State v. McBroom, 299 Kan. 731, Syl. ¶ 5, 325 P.3d 1174 (2014). Unless otherwise noted, we set forth the trial evidence with that standard in mind.
After receiving reports of drug sales, prostitution, and gambling at a service station on the corner of Meridian and McCormick Streets in Wichita, Police Officers Kevin Dykstra and Matthew Balthazor, who specialize in investigating narcotics, conducted surveillance there in February 2011. Late one evening, they watched a green Chevy Blazer pull up to the east side of the station, followed by a white Saturn, which parked next to the driver's-side door. Officer Dykstra testified that a man had gotten out of the front passenger seat of the Blazer, circled around the front of it, and knelt down next to the passenger's side of the Saturn to speak to the people inside. A female wearing a turquoise shirt then exited the driver's seat of the Blazer and stood next to the service station in between the two vehicles, actively looking around the business and at the street. After about 10 minutes, the Saturn drove away, the man and woman returned to the Blazer, and the woman drove the Blazer through the service station's parking lot toward an exit until she stopped for “[m]aybe 10 seconds” facing Dykstra and Balthazor's marked police car. She then backed up and pulled into a parking stall.
The male and the female in turquoise exited the car and lifted the hood. A third woman—Laveina White—also got out of the car. The three began testing the lights on the vehicle, and the woman in turquoise walked along the front of the service station, stopping to look directly at the police officers several times. Then a green Saturn SUV arrived, and a man got out and looked at the Blazer. The man and the woman in turquoise from the Blazer left on foot. The man from the green Saturn drove his SUV away, and White followed in the Blazer. The police followed White. After making several turns, the Saturn abruptly pulled into a private drive, and White had to make an evasive maneuver to avoid hitting it.
White then failed to signal 100 feet before a turn (as Kansas traffic law requires), and the officers pulled her over. Dykstra said that when he approached the Blazer, White “seemed to be nervous, she was looking around frantically, she was placing ... her head in her hands and was shaking her head” no from side to side. Balthazor, who conducted the traffic stop, noted that White's voice was shaky, that she was having a hard time concentrating, and that she was making quick, jerky movements—which can be an indicator of drug use. The address on White's driver's license did not match the area where White said she was living, and she told Balthazor that she had been living with a friend from church named Carl, but that she did not know Carl's last name. She also said that she had gone to the service station to drop her friends off and that they had initially stopped when exiting the parking lot because they had seen the marked patrol car and one of the Blazer's lights wasn't working. She also indicated that it smelled like something was burning in the Blazer.
White initially could not find proof of insurance for Balthazor, but her registration information indicated that she owned the Blazer. Balthazor returned to his patrol car to write her traffic citations for failing to signal and for driving on a restricted driver's license. But White began waving some documents at Balthazor, which turned out to be an expired proof of insurance, so he placed the citation on the hood of his car and approached her. He asked White to get out of the Blazer and later indicated that, at that point, she was not free to leave. Balthazor told White that she had looked like she had been trying to avoid detection by police when she was at the gas station; he said that he knew a lot of narcotic activity occurred there. He then asked if there was anything illegal in her vehicle, and she said there was not. She then gave him permission to search the vehicle.
Dykstra and a supervisor searched the Blazer and found a vial and syringe on the floorboard behind the driver's seat. They also found a baggie containing what proved to be methamphetamine in the socket for the vehicle's cigarette lighter in the center console, a checkbook that didn't belong to White, and a knotted baggie with a torn end that contained a residue from an unknown substance. Balthazor read White her Miranda rights, and she denied any knowledge of the methamphetamine in her vehicle. She also initially denied knowing about the vial and syringe but then clarified that one of her children was diabetic, so there was a bag of unused syringes in the Blazer. When Balthazor asked about drug use, White said that she had prescription seizure medication but had not taken it that day and had not used methamphetamine for 2 months.
The State charged White with possession of methamphetamine, possession of drug paraphernalia, driving in violation of restrictions, and a traffic infraction (failing to signal a turn within 100 feet).
Before trial, White's attorney filed a motion to suppress the evidence of the drugs and her statements to police regarding her activities at the service station. The district court denied the motion at an evidentiary hearing, finding that the officers properly stopped her for a traffic violation and had a reasonable suspicion to extend the traffic stop to search her car. White did not object and renew her motion to suppress at trial.
At trial, White testified that she and her friends had gone to the service station to buy cigarettes and that none of the people in her Blazer had talked with the people in the white Saturn. She said that she knew the officers were at the Valero. She also said that when her group initially tried to leave the Valero, the lights on the Blazer were not working, so she called her friend, who managed to get the dash lights to work. The State admitted into evidence the methamphetamine, vial, and a photo of the syringe recovered from the Blazer. The parties agreed on the jury instructions, and White's attorney told the court, “I want to put on the record we have no objection to the instructions in their current form.”
The jury found White guilty of possession of methamphetamine, possession of drug paraphernalia, and the traffic infraction. The district court sentenced her to 18 months of probation, which included mandatory drug treatment, with an underlying prison sentence of 12 months for the possession-of-methamphetamine conviction and a consecutive 12–month jail sentence for the misdemeanor drug-paraphernalia conviction. The court fined White $60.00 for the traffic infraction.
White has appealed to this court.
Analysis
I. Because White Did Not Object at Trial to Admission of the Items Seized from Her Car, She Has Not Preserved Her Claim That the Traffic Stop Was Unlawful for Appellate Review.
White claims on appeal that the district court should have granted her motion to suppress the evidence found in her vehicle as well as her statements to the police during the search. But she did not object to the evidence when it was admitted at trial, and K.S.A. 60–404 requires that a party raising an evidentiary claim make a contemporaneous objection to the evidence at trial:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.”
In State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009), the Kansas Supreme Court held that K.S.A. 60–404 precludes appellate courts from considering evidentiary claims if the parties raising the claims failed to make contemporaneous objections at trial. The Kansas Supreme Court has specifically applied King to a pretrial motion to suppress and stated that “when a pretrial motion to suppress has been denied, the evidence must also be objected to at the time it is offered during the trial in order to preserve the issue for appeal” so that the district court can rule on the evidence before trial and reconsider its original ruling when the case unfolds. State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009).
White recognizes that “the Kansas appellate courts have, with regularity, concluded that the failure to renew a pretrial motion to suppress at trial prohibits the consideration of that issue on appeal” but contends that “those cases, including King, are wrongly decided.” If so, we are obviously not empowered to disregard the Kansas Supreme Court's interpretation of K.S.A. 60–404. We must follow that court's precedents absent some indication it is departing from them, State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012), and there is no indication that is the case here. See State v. Williams, 299 Kan. 509, 548–50, 324 P.3d 1078 (2014) (holding that witness-confrontation issue was not preserved for appellate review, applying K.S.A. 60–404 and King ). White's failure to object to the evidence at trial means that she has not preserved the issue for appellate review.
The next issue for this court to consider is whether the district court erred in giving the drug-paraphernalia jury instruction.
II. The Drug–Paraphernalia Jury Instruction Wasn't Erroneous.
White next argues that the district court's jury instruction on drug paraphernalia was wrong on the law. She contends that the district court essentially directed that the jury conclude that the syringe found in her car was drug paraphernalia by stating in the instruction that drug paraphernalia includes syringes:
“The defendant is charged in Count 2 with the crime of unlawfully possessing with the intent to use drug paraphernalia. The defendant pleads not guilty. To establish this charge, each of the following claims must be proven:
“I, that the defendant intentionally possessed with the intent to use drug paraphernalia, to wit, a syringe to store, contain, inject, or otherwise introduce a controlled substance into the human body[.]
“And 2, that this act occurred on or about the 17th day of February, 2011, in Sedgwick County, Kansas.
“As used in this instruction, ... the term ‘drug paraphernalia’ means all equipment and materials of any kind which are used or primarily intended for use in packaging, storing, containing, injecting or otherwise introducing into the human body, a controlled substance and in violation of the Uniform Controlled Substances [A]ct. Drug paraphernalia shall include, but is not limited to, syringes.
“In determining whether an object is drug paraphernalia, you shall consider, in addition to all other logically relevant factors, the proximity of the object to controlled substances, whether the person in control of the object is a legitimate supplier of similar or related items to the community, such as a distributor [or] dealer of tobacco products, the existence of the scope is for legitimate use of the object in the community, and any evidence that alleged paraphernalia can be or has been used to store a controlled substance or to introduce a controlled substance into the human body as opposed to any legitimate use for the alleged paraphernalia.” (Emphasis added.)
White argues that the language indicating that “[d]rug paraphernalia shall include, but is not limited to, syringes” wrongly indicated that the jury didn't have to find beyond a reasonable doubt that the syringe was drug paraphernalia.
The district court's instruction was based on a pattern jury instruction recommended for use by the district courts. Recognizing that many items are listed by statute as possible items of drug paraphernalia, PIK Crim.3d 67.18B directed the district court to indicate to the jury which particular objects the State claimed in a given case to be drug paraphernalia: “ ‘Drug paraphernalia’ shall include, but is not limited to (1) [insert specific item of paraphernalia]”).
That language essentially mirrors part of the statute that tells us what items are deemed illegal drug paraphernalia. Many items are listed, including syringes: “ ‘Drug paraphernalia’ shall include, but is not limited to: ... hypodermic syringes, needles and other objects used or intended for use in parenterally injecting controlled substances into the human body.” K.S.A.2010 Supp. 21–36a01(f)(11).
White contends that the instruction effectively told the jury that syringes constitute drug paraphernalia and kept it from deciding that question on its own. White cites State v. Brice, 276 Kan. 758, 761, 80 P.3d 1113 (2003), to support her argument. In Brice, our Supreme Court reversed a conviction because the jury was instructed that the term “great bodily harm”—which is an essential element of aggravated battery—meant a through-and-through bullet wound, like the wound the victim received in Brice. 276 Kan. at 762.
The State argues that the district court used the wrong pattern instruction, PIK Crim.3d 67.18B, rather than PIK Crim.3d 67.40. Though similar, PIK 3d 67.18B has the language the court used—that “ ‘drug paraphernalia’ shall include, but is not limited to” syringes-while PIK Crim.3d 67.40 says only that “ ‘drug paraphernalia’ includes ” syringes. (Emphasis added.) The two instructions are otherwise identical; the Notes on Use by the PIK Advisory Committee indicate that PIK Crim.3d 67.40 applies to alleged criminal conduct occurring on or after July 1, 2009, while PIK Crim.3d 67.18B applies to conduct occurring before July 1, 2009. The State also argues that the remaining instructions eliminated any confusion by telling the jury that it must consider several factors, including whether White intended to use the syringe to inject a controlled substance.
White did not object to this jury instruction at trial, so we review only to see whether the instruction was clearly erroneous. K .S.A. 22–3414(3) ; State v. Brown, 300 Kan. ––––, Syl. ¶ 2, 331 P.3d 781 (2014). We first determine whether there was any error at all; if there was, we then determine whether we are firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. 331 P.3d at 792.
We find no error here. We must look at the jury instruction as a whole rather than considering a single instruction—or a single part of one instruction—in isolation. See State v. Ellmaker, 289 Kan. 1132, 1139–40, 221 P.3d 1105 (2009), cert. denied 560 U.S. 966 (2010). Although the first part of the instruction, by itself, would suggest that syringes are always considered drug paraphernalia, the remainder of the instruction told the jury to consider specific factors—such as the proximity of the syringe to a controlled substance—in deciding whether the syringe was drug paraphernalia.
The instruction would have been better had the court told the jury that drug paraphernalia “may include” syringes rather than that drug paraphernalia “shall include” syringes. When taken as a whole, however, the instruction told the jury that it must consider several factors in deciding whether any item constituted drug paraphernalia. Accordingly, we find no error in the court's jury instruction.
III. Sufficient Evidence Supported White's Convictions for Possession of Methamphetamine and Drug Paraphernalia.
White next argues that the State did not present sufficient evidence to support her convictions for possession of methamphetamine and drug paraphernalia. She denies knowing that the drugs and paraphernalia—which could have belonged to her friends—were in her car and says that the State did not present evidence to the contrary. She points out that the police did not test the drugs or paraphernalia for her fingerprints and that the State didn't mention her admission of previous drug use at trial.
When reviewing the sufficiency of the evidence in a criminal case, because the jury has found the facts in the State's favor, we review the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. McBroom, 299 Kan. 731, Syl. ¶ 5. We do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. 299 Kan. 731, Syl. ¶ 5. Nor do we make a distinction between direct and circumstantial evidence in terms of probative value: ‘ “A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.’ “ 299 Kan. 731, Syl. ¶ 6.
Knowledge is an essential element of the crime of possession of a controlled substance; to be convicted, a defendant must have control over the substance with knowledge of, and intent to have, such control. State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976). When, as here, drugs are found in a car containing more than one person, the defendant's mere presence in the vehicle is not enough to prove knowledge and support a conviction. 220 Kan. at 160.
Even so, the State can prove knowledge and intent to control by circumstantial evidence, so long as the circumstantial evidence in question is proved and is not inferred or presumed from other circumstances. See State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009) ; State v. Scaife, 286 Kan. 614, 618–19, 186 P.3d 755 (2008) ; Faulkner, 220 Kan. at 160. Courts consider seven circumstantial-evidence factors in determining whether there was a sufficient link between the defendant and the drugs found in the vehicle: “(1) incriminating statements made by defendant; (2) suspicious behavior on the part of the defendant; (3) previous drug sales by defendant; (4) defendant's use of narcotics; (5) proximity of defendant to the area where drugs were found; (6) drugs found in plain sight; and (7) other drugs or paraphernalia found on defendant .” State v. Abbott, 277 Kan. 161, 168, 83 P.3d 794 (2004) ; State v. Rios, 19 Kan.App.2d 350, 357–58, 869 P.2d 755 (1994).
White emphasizes that there was no fingerprint evidence linking her to the drugs. But several factors support the link between White, the methamphetamine, and the syringe.
Under the second factor, White acted suspiciously when she became aware of the presence of the police officers. When White and her friends noticed the police at the gas station known for drug trafficking, they stopped in the driveway for 10 seconds and then backed up and pulled into a parking stall. In addition, when White was pulled over, she put her head in her hands and shook her head “no” from side to side. She also made quick, jerky movements and couldn't provide the address of where she was staying or her host's last name.
Under the fifth factor, White was in close proximity to the area where drugs and paraphernalia were found. White was the only person anywhere near the drugs and paraphernalia during the traffic stop. White's friends had left the vehicle before she was pulled over, so if the drugs and syringe had belonged to them, they could have taken the items with them when they left the gas station on foot. White was also the only person that the police saw sitting in the back seat, where the syringe was found (on the floorboard behind the driver's seat). And while White's friends had been sitting near the center console where the drugs were found, White was sitting next to the center console when she was pulled over. At trial, White admitted that she knew the cigarette lighter didn't work, and because she had been sitting right next to the center console, a rational factfinder could have inferred that she used her easy access to the console and hid the methamphetamine there when the police pulled her over.
The State's evidence—that White's behavior was suspicious and that White had been in close proximity to the areas where the police found the drugs and the syringe—was sufficient to show she had knowledge of the drugs and paraphernalia and intended to possess them.
IV. We Lack Jurisdiction to Consider White's Challenge to Her Sentence.
White's final argument attacks the district court's decision to impose the aggravated grid sentence for possession of methamphetamine without putting the aggravating factors before the jury. For on-grid crimes, the Kansas sentencing guidelines contain three numbers—a mitigated (lower) number, a standard number, and an aggravated (higher) number of months. White contends that allowing the court to impose an aggravated sentence without having the aggravating factors proved to a jury violated her Sixth Amendment right to a jury trial, citing Cunningham v. California, 549 U.S. 270, 274, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), and Apprendi v.. New Jersey, 530 U.S. 466, 476, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
White concedes, however, that the Kansas Supreme Court has previously decided that the appellate courts lack jurisdiction to consider this issue. State v. Hilt, 299 Kan. 176, 201, 322 P.3d 367 (2014) ; State v. Johnson, 286 Kan. 824, 841–42, 851–52, 190 P.3d 207 (2008). The Kansas Legislature has not provided appellate courts with jurisdiction to review presumptive sentences, and the Kansas Supreme Court has found that the aggravated sentence in the applicable grid range is still a presumptive sentence because the sentencing court has discretion to sentence defendants to any term within the presumptive grid range without any factfinding. 286 Kan. at 851. We therefore have no jurisdiction to consider White's objection to her sentence, and we dismiss her appeal of that issue.
The district court's judgment is affirmed.
* * *
ATCHESON, J., concurring:
We are prohibited from considering the merits of the Sedgwick County District Court's pretrial order denying the motion of Defendant Laveina White to suppress evidence she contends was obtained in violation of her rights protected by the Fourth Amendment to the United States Constitution because she then failed to renew that motion during the jury trial—a formalism ostensibly needed to satisfy the contemporaneous objection rule. See K.S.A. 60–404 ; State v. Kelly, 295 Kan. 587, 589–91, 285 P.3d 1026 (2012). The idea that a criminal defendant must again raise Fourth Amendment issues decided in an evidentiary hearing held before trial in the midst of that trial to preserve the point for appellate review is a fragile one. The requirement runs counter to the Kansas Code of Criminal Procedure. It serves no useful purpose while imposing a severe penalty on a criminal defendant if it is overlooked and potentially adverse consequences if it is followed. And it seems to originate in caselaw drawing an uneasy equation of motions in limine with motions to suppress.
I.
Although Kelly is not precisely on point, the decision has to be candidly read to support the proposition that a criminal defendant must make a contemporaneous objection during a jury trial to the State's offer of evidence that would have been barred had the district court granted rather than denied his or her pretrial motion to suppress based on a Fourth Amendment violation. That is the proposition my colleagues apply here. In Kelly, the majority held that a defendant need not make a contemporaneous objection during a bench trial on stipulated facts to preserve any error the district court may have made in denying a pretrial motion to suppress evidence on Fourth Amendment grounds. The majority recognized that the purpose of the trial was simply to obtain a final judgment so the suppression ruling might be appealed. 295 Kan. at 592–94. But the majority decision clearly contrasted that procedural circumstance with a contested jury trial and has to be construed to say an objection would be required there. 295 Kan. at 590. The three dissenting justices would have required a contemporaneous objection during the uncontested bench trial and, a fortiori, would then impose the same requirement in a jury trial. 295 Kan. at 595–604 (Nuss, C.J., dissenting, joined by Biles and Moritz, JJ).
As a matter of trial procedure, the contemporaneous objection rule serves an essential function in civil and criminal actions and should be rigorously enforced. The rule requires a party call to the district court's attention—typically with an objection—a perceived problem with evidence as it is being offered or another irregularity in the proceedings. Cued by the objection, the district court can then assess the situation and take any action necessary to keep the proceedings on the up-and-up, as by excluding improper evidence or requiring a potential witness to leave the courtroom in compliance with a separation and sequestration order. A party failing to lodge a timely objection forfeits any later complaint about the claimed defect—in a request for a new trial or on appeal—because the district court had no opportunity to fix the problem. That is an undeniably good rule.
But enforcing the rule to require a criminal defendant to renew an unsuccessful motion to suppress during trial serves no comparable purpose. When a criminal defendant files a pretrial motion to suppress evidence based on an asserted Fourth Amendment violation, the district court typically holds an evidentiary hearing in which the State must prove the contested search or seizure constitutionally proper. Having heard all of the evidence the parties considered relevant to the Fourth Amendment issue, the district court then either grants or denies the motion. Assuming the district court finds no Fourth Amendment violation requiring the challenged evidence be excluded and, therefore, denies the motion, the criminal defendant has done exactly what the contemporaneous objection rule requires. The defendant has called a putative problem—the violation of his or her Fourth Amendment rights-to the district court's attention and has secured a definitive ruling on the point. Those efforts should be sufficient to preserve any error in the ruling for appeal.
The Kansas Code of Criminal Procedure requires no more. See K.S.A. 22–3417. Under K.S.A. 22–3417, a party need only make known to the district court the action desired and, at the time of the court's ruling, any objection to that ruling. A pretrial motion to suppress and the attendant district court order fit well within K.S.A. 22–3417. To demand renewal of the motion during trial to preserve the point weaves a procedural requirement into K.S.A. 22–3417 found nowhere in the statutory language. The demand functions very much as a formal exception to the district court's ruling-an antiquated practice specifically disavowed in K.S.A. 22–3417.
As Justice Johnson has pointed out, K.S.A, 60–404, codifying the contemporaneous objection rule, does not require renewal of an unsuccessful motion to suppress at trial to preserve that decision for appeal. State v. Hollingsworth, 289 Kan. 1250, 1260–61, 221 P.3d 1122 (2009) (Johnson, J., dissenting). Under K.S.A. 60–404, an objection “must be timely interposed.” The filing of a pretrial motion to suppress evidence on Fourth Amendment grounds functions as the timely interposition of an objection. And the district court's decision on the motion functions as a legally sufficient ruling on the point.
Moreover, K.S.A. 60–404 governs what might be termed evidentiary objections. That is, whether testimony, documents, or other objects properly may be admitted to prove or refute the claims at issue consistent with the rules of evidence. In a criminal trial, the State must prove the elements of the charged offense beyond a reasonable doubt. If a defendant believes the State is offering something inadmissible under the rules of evidence for that purpose, K.S.A. 60–404 requires that he or she promptly lodge an objection so the district court may avert or limit any harm by excluding the evidence and, if necessary, instructing the jurors to disregard what they have seen or heard about it. But there is no evidentiary objection, to which K.S.A. 60–404 would apply, to exclude evidence government agents have seized in violation of a defendant's Fourth Amendment rights.
This case offers a good illustration. The methamphetamine and syringe the police found in White's SUV are plainly relevant and material to the charges and couldn't be excluded as evidence for that reason. Nor are they unduly prejudicial compared with their indisputable probative worth. So White had no reasonable grounds to object to those items being admitted at her trial consistent with the rules of evidence. If White had any such objection-b-ased, say, on a broken chain of custody suggesting the drugs and paraphernalia being offered hadn't actually come from her vehicle—she would have had to make a timely objection during trial. And in the absence of an objection to foundation, she would have forfeited any appellate argument on that point. But the rules of evidence do not bar or disallow evidence because it has been seized in violation of a criminal defendant's constitutional rights. The exclusionary rule does. The exclusionary rule is not a rule of evidence at all but a prophylactic remedy intended to prod government agents to be more vigilant in honoring the protections of the Fourth Amendment thereby preventing unreasonable searches and seizures. Herring v. United States, 555 U.S. 135, 139–40, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (The exclusionary rule is “ ‘designed to safeguard Fourth Amendment rights generally through its deterrent effect.’ “ [quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) ] ); State v. Althaus, 49 Kan.App.2d 210, Syl. ¶ 3, 305 P.3d 716 (2013) (“The exclusionary rule is the most effective way to deter unconstitutional searches on the theory that law enforcement officers will avoid those searches precisely because the government will be deprived of resulting inculpatory evidence in prosecuting accused criminals.”). So K.S.A. 60–404 doesn't really apply to the exclusion of evidence as a remedy for a Fourth Amendment violation. In turn, the statute should not be construed to require a defendant to renew a motion to suppress grounded on such a violation.
II.
In State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009), the case often cited as the fountainhead of implacable enforcement of K.S.A. 60–404, the court made studied reference to the statute's purpose in triggering objections based on the rules of evidence. The court found that “the legislature's intent in enacting K.S.A. 60–404 is clear: a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review.” (Emphasis added.) 288 Kan. at 348. The court rejected what it saw as a growing willingness to “review[ ] evidentiary questions when no objection has been lodged” as being at odds with the clear objective of K.S.A. 60–404. The King case dealt with the defendant's failure to object to improper trial testimony. 288 Kan. at 340–41. Here, however, White's fundamental complaint was not an evidentiary one but a constitutional one. What she wants reviewed is the district court's conclusion that the Wichita police did not violate her Fourth Amendment rights, based on evidence adduced at the hearing held specifically to decide that issue.
Had White's lawyer raised the Fourth Amendment issue for the first time as an objection at trial, the district court would have acted in its sound discretion to deny the request as untimely. K.S.A. 22–3216(3). Under K.S.A. 22–3216, a motion to suppress evidence based on an unlawful search or seizure should be made before trial. That's because a motion to suppress typically requires an evidentiary hearing dealing with issues only peripherally related to the defendant's guilt or innocence—the focal point of a trial.[1]
[1]If the facts supporting a motion to suppress were not reasonably ascertainable to the defense until trial—a distinctly unusual situation—the district court properly could consider a defendant's motion to suppress promptly made upon those facts coming to light. But the defense request would be appropriately treated as a motion to suppress rather than an evidentiary objection, no matter how it might be phrased. And it would necessitate a hearing outside the jury's presence, likely involving additional evidence. The defendant's failure to timely raise a Fourth Amendment issue in the district court in some fashion would commonly preclude appellate review.
If a defendant files a motion to suppress asserting a Fourth Amendment violation, the State must prove either that any search or seizure was constitutionally reasonable or that an exception to the exclusionary rule, such as good faith or inevitable discovery, would allow use of the evidence anyway. Those are not issues at trial, and the State has no obligation to present evidence on them in front of the jurors. Conversely, the defendant's guilt is wholly irrelevant to the merits of a motion to suppress based on a Fourth Amendment violation. Accordingly, although the evidence the State presents in opposition to a motion to suppress and at a later trial undoubtedly will overlap, those two evidentiary universes are unlikely to be identical. The divergence of controlling issues and supporting evidence between a motion to suppress and a trial further erodes any sound rationale for requiring a defendant to renew a motion to suppress during trial to preserve any error for appellate review. The State need not reprove at trial the constitutional reasonableness of the search or seizure of the defendant. The defendant, therefore, could not successfully renew a motion to suppress based on the inadequacy of the State's evidence at trial on that already settled issue. Were a witness to testify at trial in a way that substantively contradicted his or her material testimony at an earlier suppression hearing, a defendant could then renew the motion for that reason. The failure to do so would keep the defendant from raising the changed testimony on appeal, since the district court would have been precluded from reevaluating the suppression issue. But that unusual circumstance doesn't justify a requirement forcing defendants to invariably reassert motions to suppress evidence in the form of objections at trial for no reason other than preserving the constitutional issue for appeal.
Nor can such a rote requirement be justified on the notion that the district court just might reconsider its pretrial ruling on the motion to suppress. If a district court concluded it had ruled incorrectly or even entertained that possibility, the court ought to so inform the parties without any prompting and either request further argument or simply revise its ruling. But there is no reason to believe that in the run of cases a defendant's resurrection of the suppression issues at trial as an objection to the evidence would itself spur the district court to doubt—much less reverse—an otherwise carefully considered pretrial ruling. The procedural rules do not otherwise require a party to afford the district court an opportunity for a do-over as a necessary condition to appeal a ruling as error. See State v. Hills, 24 Kan.App.2d 1, Syl. ¶ 2, 941 P.2d 404 (1997) (“[T]o preserve issues for appeal, a defendant is not required to raise those issues in a motion for a new trial”), aff'd 264 Kan. 437, 957 P.2d 496 (1998) ; Parker v. State, No. 92,252, 2005 WL 1089049, at *4 (Kan.App.2005) (unpublished opinion).
In short, the contemporaneous objection rule advances no particularly useful purpose when applied to force a defendant to reiterate at trial a Fourth Amendment argument a district court has already rejected in denying a motion to suppress. But that application of the rule does plant a landmine on the criminal procedural terrain. A lawyer reading K.S.A. 22–3417 could reasonably conclude that no trial objection ought to be necessary to preserve an erroneous denial of a motion to suppress as an appellate issue. And on its face, K.S.A. 60–404 wouldn't suggest otherwise. Lawyers stopping there would seriously compromise their clients' rights by tripping the contemporaneous objection landmine, notwithstanding the statutory language suggesting safe passage. (A little deeper research would disclose things aren't always as they might appear.) In many cases, however, a potentially viable appellate issue, based on a constitutional violation, would be lost for want of what is a superfluous trial objection. This is such a case.[2]
[2]I offer no comment on the merits of White's motion to suppress. It is not before us, and I have not reviewed the record evidence. Based on the facts discussed in the briefing, the motion could be fairly described as at least colorable. The strength of the motion, however, has nothing to do with barring consideration of its denial on appeal because of a peculiar judicial twist in the contemporaneous objection rule.
As things now stand in the Kansas courts, a defense lawyer is left to object to the State's introduction of often highly incriminating evidence at trial based on the violation of his or her client's Fourth Amendment rights-here methamphetamine and a syringe. See K.S.A. 60–404 (“specific ground of objection” must be apparent); State v. Bowen, 299 Kan. 339, 349–51, 323 P.3d 853 (2014). A fair number of jurors tend to view objections as the lawyers' efforts to hide unfavorable stuff. And conventional wisdom suggests many people think the Fourth Amendment and the exclusionary rule are technicalities that allow criminals to evade the law and due punishment. Voicing that objection in front of jurors could cause the defense lawyer, and by association his or her client, to lose credibility and to be seen as trying to scam the judicial process. The objection would have to be repeated as the State introduced each item of evidence government agents had obtained through the previously challenged search or seizure. Depending on the amount of evidence and how the prosecution sequenced its witnesses at trial, a defense lawyer might have to repeat the objection throughout the State's case. The impact of repeated objections could be a real problem with no offsetting benefit to the trial process. Cf. State v. Turner, 300 Kan. ––––, Syl. ¶¶ 3–4, 333 P.3d 155 (2014) (requiring witness to repeatedly invoke Fifth Amendment privilege in front of grand jurors impermissibly tainted indictment of witness, notwithstanding judicial admonition not to consider claim of privilege in weighing whether to indict). At least some district courts presumably would allow the objections to be made at the bench outside the hearing of the jurors to curtail the negative effect. But a continuing objection lodged at the start of the trial would be insufficient—it would neither be contemporaneous nor allow the district court to rethink its position in light of the trial evidence, however doubtful those purposes. See State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009).
III.
The application of K.S.A. 60–404 and its contemporaneous objection rule to preserve an appeal from the district court's pretrial denial of a motion to suppress evidence on Fourth Amendment grounds has evolved from the notion that those motions should be treated the same as motions in limine seeking advance rulings on evidentiary objections to testimony or exhibits to be offered at trial. See Kelly, 295 Kan. at 590. The Kelly decision cites Houston, 289 Kan. at 270–71, as an example. In Houston, the district court denied defendant's motion in limine to exclude anticipated trial testimony, and defense counsel made no objection when the State elicited the testimony in front of the jury. The court found that any error had not been preserved in the absence of a trial objection. 289 Kan. at 271. The court, however, broadly cast its ruling this way: “[W]hen a pretrial motion to suppress has been denied, the evidence must also be objected to at the time it is offered during the trial in order to preserve the issue for appeal.” 289 Kan. at 270. But phrased that way, the holding fails to distinguish between true motions to suppress evidence based on constitutional violations and motions in limine seeking advance trial rulings.
Under the Kansas Code of Criminal Procedure, a motion to suppress evidence may be based on “an unlawful search and seizure.” K.S.A. 22–3216(1). So a motion in limine is not a motion to suppress, and they shouldn't be lumped together. The difference is more than semantic. The two types of motions have little in common other than their being filed before trial.
Essentially, a motion in limine requests a district court make an evidentiary ruling in advance of trial as to the admissibility of anticipated testimony or proposed exhibits to be offered at trial. See State v. Shadden, 290 Kan. 803, 815–16, 235 P.3d 436 (2010) (motion in limine may be granted if document or other material would be inadmissible at trial under rules of evidence or related common-law doctrine, such as collateral source rule, and mere mention of the evidence would be highly and impermissibly prejudicial to party or disruptive of the trial process). In other words, the party wants the district court to rule on what would otherwise be a trial objection to evidence before the trial has begun. Typically in arguing a motion in limine, the parties proffer to the district court their prognostication of what the trial evidence will be, thereby anchoring the requested ruling in a factual setting, albeit a distinctly conditional or hypothetical one. If the district court denies a motion in limine to exclude evidence, the party cannot rely on that ruling to preserve the issue for appeal. First, as anyone who has tried a couple of cases knows, the evidence at trial usually comes in differently from what the lawyers expect—sometimes in minor ways but often in significant ways. Development of the actual evidence at trial may cause a district court to reconsider an advance evidentiary ruling made on the parties' proffers. See State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 (1989) (in considering motion in limine, district court may be unable to determine materiality of challenged evidence “until other evidence has been admitted”); accord Luce v. United States, 469 U.S. 38, 41, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) (ruling on motion in limine “is subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the defendant's proffer”); Gill v. Thomas, 83 F.3d 537, 540–41 (1st Cir.1996) (ruling denying motion in limine fails to preserve for appeal any error in admission of challenged evidence at trial, since district court might have sustained contemporaneous objection based on actual development of trial evidence); Ellis v. Country Club Hills, No. 06 C 1895, 2011 WL 6001148, at *1 (N.D.Ill .2011) (unpublished opinion) (“Because motions in limine are filed before the Court has seen or heard the evidence or observed the trial unfold, rulings in limine may be subject to alteration or reconsideration during the course of trial.”). So the party seeking to keep the evidence out must make a contemporaneous trial objection. Second, the district court's denial of a motion in limine typically doesn't mean the challenged evidence will be admitted at trial—only that there isn't a sufficiently clear evidentiary basis to exclude it before trial. At trial, then, the parties must deal with the disputed evidence as if no motion in limine had been filed. If a party still wants the evidence out, he or she has to object when it's offered.
Without repeating all that I have said, motions to suppress evidence for Fourth Amendment violations share none of those attributes. On a motion to suppress, the State and the defense present all relevant evidence to the district court through witnesses and exhibits at a hearing. The district court need not venture a ruling based on what the evidence might be at a future proceeding. The motion and hearing are directed at a specific, ultimate issue: Whether the challenged search or seizure was constitutionally reasonable and the appropriate remedy if it wasn't. The issue is not directly connected to the issues to be decided at trial. In turn, a ruling on a motion to suppress is considered definitive. The denial of the motion doesn't, therefore, occasion the need for a renewed request at trial because there would be no reason to expect the district court might rule differently. Conversely, motions in limine deal with evidentiary questions that don't dispose of any controlling issue and are almost inherently subject to revision based on how the trial develops. The district court's denial of a motion in limine, signaling only an unwillingness to exclude trial evidence ahead of time, cannot be taken as a categorical ruling that the evidence will be admitted-meaning a contemporaneous objection at trial simply obligates a party to what is required under K.S.A. 60–404 to lodge an evidentiary objection.
Despite those marked differences, the Kansas appellate courts have treated them almost interchangeably without much consideration or explanation. For example, Houston, 289 Kan. at 270, cited State v. Jones, 267 Kan. 627, 637, 984 P.2d 132 (1999), for the proposition that a defendant must object at trial when his or her “pretrial motion to suppress” has been denied. In turn, Jones, 267 Kan. at 637–38, cited State v. Cellier, 263 Kan. 54, Syl. ¶ 2, 948 P.2d 616 (1997), and quoted at length from Nunn, 244 Kan. at 213. The Cellier decision ultimately traces back to Nunn, and Nunn doesn't stand for that broad proposition. In Nunn, a defendant filed a motion in limine to preclude the State from mentioning or introducing at trial other crimes evidence under K.S.A. 60–455. That was a true motion in limine seeking an evidentiary ruling in advance of trial. The district court denied the motion, and the defendant failed to object when the State introduced the evidence at trial. In reviewing the point on appeal, the Nunn court held that “when a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal.” 244 Kan. at 213. The court neither suggested nor even considered whether the contemporaneous objection rule ought to be applied to motions to suppress evidence for Fourth Amendment violations. It relied exclusively on Douglas v. Lombardino, 236 Kan. 471, Syl. ¶ 2, 693 P.2d 1138 (1985), a civil case considering a motion in limine.
In Cellier, 263 Kan. at 65, the court cited only State v. Milo, 249 Kan. 15, 18, 815 P.2d 519 (1991). In Milo, 249 Kan. at 18, the court simply observed that “[w]hen either a motion in limine or a motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal.” And it cited Nunn as its lone authority without noting that Nunn neither considered nor even mentioned motions to suppress. Coming full circle, the Kelly court cited Nunn to support the proposition that in a contested trial, a defendant must object to the introduction of evidence to preserve appellate review of the denial of a pretrial motion to suppress based on a Fourth Amendment violation. Kelly, 295 Kan. at 590.
The genealogy of the idea that motions in limine and motions to suppress ought to be treated the same indicates origins not in studied analysis but in repetition of a misapplication of Nunn. Adherence to unstudied precedent for its own sake ought not justify a procedural practice that simultaneously thwarts judicial review of district court decisions affecting fundamental constitutional rights of criminal defendants and fails to advance any palpable benefit.
In this case, we ought to be able to look at the merits of White's Fourth Amendment challenge.