Court: Court of Appeals of Kansas; December 22, 1993; Kansas; State Appellate Court
K. David M. Kendig appeals the denial of his motions to suppress evidence in cases K69630 and K70738, as well as the sentences resulting from his marijuana possession convictions under K.S.A. 65-4127b(a)(3). Kendig contends that evidence in K69630 was tainted due to an unlawful detention and an illegal arrest for fireworks possession, leading to an unlawful search. In K70738, he claims evidence was obtained from a pretextual traffic stop. Additionally, he argues that his sentencing was flawed because the court did not follow the allocution statute, K.S.A. 1992 Supp. 22-3424(4).
The court affirmed the decisions, noting that Deputy Sheriff Peggy Cobb stopped Kendig's vehicle based on her suspicion of alcohol influence. During the stop, she discovered illegal fireworks in plain view and subsequently conducted a search, uncovering what she believed to be marijuana. Kendig admitted to having smoked marijuana during transport. In K70738, Cobb arrested Kendig pursuant to a bench warrant after observing him leave his residence and found marijuana during a search of his vehicle.
Kendig's argument that the traffic stop exceeded its lawful scope was dismissed, as he did not raise this issue at the suppression hearing, which bars him from presenting new arguments on appeal. This aligns with established case law that asserts defendants cannot introduce arguments not previously presented in trial court.
Kendig contends that the Overland Park Municipal Code provision granting Cobb the authority to arrest him is invalid due to its conflict with K.S.A. 1992 Supp. 31-134(b). He asserts that the invalidity of this provision renders his arrest illegal and necessitates the suppression of any evidence obtained as a result. The legal standard for determining the constitutional validity of an arrest requires assessing whether the officers had sufficient and trustworthy information to warrant a prudent belief that an offense was being committed. At the time of the arrest, Cobb was aware that fireworks possession was illegal under the municipal code and observed fireworks in Kendig's vehicle, which provided probable cause for the arrest. The State argues that an officer should be able to rely on enacted code provisions in good faith, drawing an analogy to cases where evidence obtained under an invalid search warrant is not suppressed unless police misconduct is demonstrated, as established in United States v. Leon. Consequently, since Cobb had probable cause for the arrest based on her observations, the search incident to the arrest was deemed valid.
Additionally, the trial court's decision to not suppress the burnt marijuana cigarettes was upheld, as Kendig’s defense counsel failed to object to their admission during the trial, thus failing to preserve the issue for appeal. The same reasoning applies to the baggie of marijuana found in Kendig's car, which was also admitted into evidence without objection from his counsel. Lastly, Kendig argues that his sentencing was flawed because the court did not adhere to K.S.A. 1992 Supp. 22-3424(4), which outlines the procedural requirements for sentencing, including allowing the prosecution and defense to address the court and permitting the defendant to make a personal statement.
The court may permit the victim or their family to address it before sentencing if requested. The State acknowledged that the trial court did not specifically ask Kendig if he wanted to present evidence before sentencing. According to State v. Webb, a defendant has an absolute statutory right to allocution that cannot be waived by silence or counsel's argument. In this case, while defense counsel made a statement, no evidence was presented, and Kendig did make a statement when asked. The court did not ask if he had evidence to present but did inquire if he had a lawful reason not to be sentenced, to which Kendig replied negatively. Even if the trial court's failure to ask about evidence was an error, it was deemed harmless, as no prejudicial impact was shown. Kendig's counsel had the opportunity to present evidence but chose not to, and Kendig did not specify any evidence he wished to present on appeal. Consequently, Kendig's sentencing was upheld as not defective. The decision was affirmed.
