State v. Wilson ( 2023 )

NOT DESIGNATED FOR PUBLICATION
No. 125,283
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
GINA L. WILSON,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Submitted without oral argument.
Opinion filed December 29, 2023. Affirmed.
Grace E. Tran, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general, for appellee.
Before WARNER, P.J., GARDNER and HURST, JJ.
WARNER, J.: Gina Wilson appeals her conviction for illegal possession of an
opiate. She argues the district court should have granted her motion to suppress evidence
of oxycodone pills found in her car during a traffic stop, arguing police officers only
found that evidence after they impermissibly extended the scope and duration of the stop.
She also asserts the State failed to prove that oxycodone is an opiate under K.S.A. 2019
Supp. 21-5706(a). We are not persuaded by these arguments and thus affirm Wilson's
conviction.
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FACTUAL AND PROCEDURAL BACKGROUND
In March 2022, a jury convicted Wilson of possession of an opiate under K.S.A.
2019 Supp. 21-5706(a) and driving while suspended, her second or subsequent
conviction. (She does not challenge the suspended-driving conviction on appeal.) The
events giving rise to Wilson's convictions took place on November 19, 2020, when she
was pulled over by Wichita police officers while driving in Sedgwick County. During the
course of the stop, the officers found an envelope of oxycodone capsules in Wilson's car,
leading to her drug-possession conviction.
The stop
Before trial, Wilson moved to suppress all evidence relating to the oxycodone,
claiming that the evidence arose from a violation of the United States Constitution's
prohibition of unreasonable searches and seizures. The district court held a hearing on
that claim, and the testimony presented there forms the basis for the following narrative.
The Wichita police had previously received information that made them believe
that a person named Rita was selling crack cocaine from a residence in Wichita. Police
officers had begun watching the house in September 2020 and observed patterns they
believed signaled drug trafficking (such as cars pulling up and leaving within three to five
minutes). The day before Wilson was stopped, officers pulled trash from the home,
finding torn baggies with what they believed to be drug residue on them.
On the day of Wilson's traffic stop, two officers—Officer Donald Bailey and
Officer Shawn Isham—were observing the suspected drug house. Around 4:30 p.m., they
saw a car pull into the driveway. A woman later identified as Wilson exited the car and
entered the house, reappearing within three to five minutes. The car then drove away.
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The officers followed the car and saw it commit two traffic infractions—failing to
signal a turn and failing to signal a turn within 100 feet. The officer who was driving
activated his emergency lights, and the car immediately pulled over, stopping in front of a
house on Greenfield Street. The officers approached the car (at 4:36 p.m.) and observed
that Wilson was its the sole occupant.
The officers and Wilson discussed what had happened. Wilson was adamant that
she had properly signaled but admitted she did not have a valid license. She explained
that she had been thinking about renting a property on Greenfield Street—in fact, the
very property she happened to have been stopped in front of—and had stopped at her
friend Rita's house to ask for directions. The officers found it suspicious that Wilson
claimed to be pulled over right in front of her prospective rental home immediately after
being at the suspected drug house and speaking with Rita.
After this initial contact, the officers returned to the patrol car. Officer Bailey
confirmed Wilson's suspended license and identity. He also conducted a search of her
criminal history, showing she had a few arrests for possession of narcotics. The officers
called a K-9 unit—consisting of an officer-handler and dog, Oden—to the scene (at 4:42
p.m.). Officer Bailey indicated that this was "right about the time" one of his systems
indicated Wilson had a suspended driver's license and "probably right before [he] got
onto SPIDER to confirm the [suspended license] and to check to see if she had any other
warrants."
At this point, the officers had reason to believe that Wilson had committed at least
one crime—driving with a suspended license. Officer Isham got out of the patrol car and
asked Wilson to step out of her vehicle. Officer Bailey waited for information from
SPIDER and began filling out the citation.
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The K-9 unit arrived at 4:51 p.m., nine minutes after it was called. Officer Bailey
testified that he completed the citation "a little bit after the K-9 arrived." The K-9 unit
waited for about 40 seconds for him to complete the citation. When Officer Bailey
finished the citation, he stepped out of his patrol car to join the K-9 unit. Four minutes
later, at 4:55 p.m., the dog indicated that there were drugs in the car. The officers then
searched Wilson's vehicle, finding 30 white capsules inside an envelope in the center
console. A forensic lab later identified these capsules as oxycodone.
Wilson's charges, suppression motion, and convictions
The State charged Wilson with one count of possession of an opiate, opium,
narcotic, or certain simulant; one count of driving while suspended, her second or
subsequent conviction; and one count of unsafe turning or stopping, failure to give proper
signal.
Before trial, Wilson sought to suppress the oxycodone capsules found in her car.
She argued that the officers impermissibly extended the traffic stop by calling the drug
dog. Wilson pointed out that she did not consent to the search and argued that her
criminal history alone could not create reasonable suspicion to extend the stop. The State
countered that calling the K-9 unit did not measurably extend the stop. And the State
suggested Wilson's stop at the surveilled house, her drug history, and her suspicious
explanation about stopping in front of the house she was looking at to rent provided
reasonable suspicion to complete the K-9 sniff.
As we have noted, the district court conducted an evidentiary hearing on Wilson's
suppression motion. After considering the evidence, the court declined to suppress
evidence of the oxycodone. In the court's written order, it stated that Wilson was not
detained for an unreasonable period of time since the dog arrived before the officer
completed the citation paperwork.
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A jury found Wilson guilty of possession of an opiate and driving while
suspended. She now appeals.
DISCUSSION
Wilson raises two issues on appeal. First, she argues the district court should have
suppressed the oxycodone capsules found in her car because they were only found
because the officers impermissibly extended the traffic stop. Second, Wilson argues there
was not sufficient evidence to convict her of possession of an opiate, asserting the State
failed to prove that oxycodone is an opiate under K.S.A. 2019 Supp. 21-5706(a). We find
neither argument persuasive.
1. The district court did not err by denying Wilson's motion to suppress evidence of the
oxycodone.
The Fourth Amendment to the United States Constitution, made applicable to the
states through the Fourteenth Amendment's Due Process Clause, protects "[t]he right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures." Section 15 of the Kansas Constitution Bill of Rights provides "the
same protection from unlawful government searches and seizures as the Fourth
Amendment." State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010). When a person
is stopped by a police officer for a traffic infraction, a seizure occurs under the Fourth
Amendment. State v. Jimenez, 308 Kan. 315, 316, 420 P.3d 464 (2018).
"Traffic stops must not be measurably extended beyond what is necessary to
process the infraction prompting the stop, unless there is reasonable suspicion of or
probable cause to believe there is other criminal activity, or consent." 308 Kan. at 316
(citing Rodriguez v. United States, 575 U.S. 348, 355, 135 S. Ct. 1609, 191 L. Ed. 2d 492[2015]). This necessary information usually includes "checking the driver's license,
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determining whether there are outstanding warrants against the driver, and inspecting the
automobile's registration and proof of insurance." 575 U.S. at 355. Investigation into
other crimes "diverts from that mission and cannot become a permissible de minimis
intrusion" unless the officers have facts causing them to suspect that some other crime
has been committed. Jimenez, 308 Kan. at 317 (citing Rodriguez, 575 U.S. at 355-57).
Under Kansas law, police may ask questions of a stopped driver about matters
unrelated to the stop so long as they do not extend the traffic stop "'beyond the time
reasonably required to effectuate [the stop's] purpose.'" 308 Kan. at 329 (quoting United
States v. Pettit, 785 F.3d 1374, 1379 [10th Cir. 2015]). Officers must be "especially
careful to ensure nonconsensual inquiries occur concurrently with the tasks permitted for
such stops so they will not measurably extend the time it would otherwise take." Jimenez,
308 Kan. at 326. This is called multitasking. 308 Kan. at 326. If an officer is not
effectively multitasking, these unrelated inquiries—without reasonable suspicion,
probable cause, or consent—impermissibly expand the stop beyond what the Constitution
permits. 308 Kan. at 325-26.
Wilson argues that the district court erred in declining to suppress evidence of the
oxycodone, asserting the police officers lacked reasonable suspicion to extend the stop
beyond traffic-related issues. In doing so, she renews the argument she raised at the
suppression hearing, claiming the K-9 sniff extended the duration of the stop beyond
what was constitutionally permitted. She also adds a new argument, raised for the first
time on appeal, that the officers impermissibly extended the duration of the stop when
they checked her criminal history. We address the reasons why we decline to consider
this new argument before reviewing Wilson's challenge to the district court's ruling.
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1.1. Wilson's argument that the criminal-history check extended the stop is not
preserved for appeal.
Appellate courts are courts of review. This means we ordinarily only consider
claims that were preserved in earlier proceedings—most often, claims that were first
presented to the district court. See State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877(2018); State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). This preservation
requirement serves several practical purposes. Most notably, it allows the district court
the opportunity to consider and rule on the parties' claims, thereby reducing the chance of
reversible error and the need for a new trial. It also allows the parties the opportunity to
create a comprehensive trial record, ensuring a more meaningful review on appeal.
When a party presents an issue on appeal that was not raised before, it deprives the
district court of the ability to consider the argument and conduct an error-free proceeding.
It also deprives the appellate court of a complete record to review, as there are no
previous arguments to consider and no decision by the district court to evaluate. We
occasionally exercise our discretion to reach an unpreserved argument if we find that the
issues warrant our review and if review is possible based on the record before us. State v.
Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017). For example, we have sometimes
decided to consider purely legal issues raised for the first time on appeal if they are based
on undisputed facts and would resolve the case or if the record permits review and
deciding the issue is necessary to serve the ends of justice or prevent deprivation of a
fundamental right. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019).
Wilson's argument that the officers measurably extended the traffic stop by
checking her criminal history was not argued before the district court. A review of the
record shows that while Wilson mentioned her criminal history, she did so in the context
of whether it created reasonable suspicion for the K-9 unit to conduct a sniff—not
whether it measurably extended the stop. These are different arguments requiring
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different factual evaluations. As such, the parties offered little, if any, evidence regarding
the manner in which the officers conducted her criminal-history search, and the district
court made no findings about whether the manner of that search meaningfully and
impermissibly extended the stop.
Despite this change of course, Wilson does not acknowledge in her appeal that this
argument is new, nor does she present us with any reasons why we should consider this
question in the first instance. See Supreme Court Rule 6.02(a)(5) (2023 Kan. S. Ct. R. at
36) ("If the issue was not raised below, there must be an explanation why the issue is
properly before the court."); see also State v. Godfrey, 301 Kan. 1041, Syl., 350 P.3d
1068 (2015) (failure to satisfy Rule 6.02[a][5] results in an abandonment of the issue).
We decline to consider this fact-intensive argument for the first time on appeal.
1.2. The K-9 sniff did not measurably extend the traffic stop.
Apart from her new argument about the criminal-history check, Wilson briefly
revisits her assertion that the stop was unconstitutionally prolonged by the time it took the
K-9 unit to indicate that there were drugs in her car. She points out that the K-9 unit
arrived at 4:51 p.m., essentially just as Officer Bailey completed the citation, and the dog
alerted next to the car four minutes later. Wilson argues that she should have received her
traffic citation when Officer Bailey completed it—which was about 40 seconds after the
drug dog arrived—and had been allowed to leave. The State counters that the time it took
the dog to sniff Wilson's car did not measurably extend the stop, meaning no
constitutional violation occurred. We agree with the State.
This court reviews the factual underpinnings of a district court's decision to deny
a suppression motion for substantial competent evidence and its ultimate legal conclusion
de novo. State v. Doelz, 309 Kan. 133, 138, 432 P.3d 669 (2019). When, as here, the
material facts are not in dispute, the constitutionality of a search is a question of law over
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which our review is unlimited. State v. Stevenson, 299 Kan. 53, 57-58, 321 P.3d 754(2014). Although a defendant initiates a constitutional challenge to a search or seizure by
filing a motion to suppress the evidence in question, the State has the burden to prove any
challenged police conduct was permissible. K.S.A. 2022 Supp. 22-3216(2); State v.
Cleverly, 305 Kan. 598, 605, 385 P.3d 512 (2016).
Because a dog sniff is not a routine traffic measure, it is constitutionally
permissible during a traffic stop "as long as [the dog sniff] did not prolong the stop
beyond the time necessary to accomplish the original purpose of issuing a traffic
citation." State v. Jones, 300 Kan. 630, 641, 333 P.3d 886 (2014). In analyzing the
lawfulness of a dog sniff during a traffic stop, our focus "is not whether the dog sniff
occurs before or after the officer issues a ticket," but rather "whether conducting the sniff
'prolongs'—i.e., adds time to—'the stop.'" Rodriguez, 575 U.S. at 357.
The State correctly notes that Wilson points to no evidence showing that the dog
sniff measurably extended the stop beyond the time that was required to accomplish the
stop's original purpose. The roughly four minutes between the completion of Wilson's
traffic citation and the dog's indication of drugs do not amount to a delay that would
render the stop unconstitutional. This is particularly true where the officers had already
confirmed that Wilson had committed a crime (driving while suspended); Wilson's
assertion that she would have been free to leave immediately upon Officer Bailey's
completion of the citation is unfounded.
Because there is no evidence that the dog sniff meaningfully extended the duration
of the original stop, we find no Fourth Amendment violation here. Thus, we need not
address Wilson's alternative arguments regarding the officers' reasons for extending the
stop and whether the oxycodone would have been inevitably found when Wilson was
arrested for driving while suspended. In short, the district court did not err when it denied
Wilson's motion to suppress the oxycodone found in the console of her car.
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2. There was evidence presented at trial to support Wilson's conviction for unlawful
possession of an opiate.
Wilson also challenges the sufficiency of the evidence to convict her of possession
of an opiate. When a defendant challenges the sufficiency of the evidence, an appellate
court reviews 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."
State v. Rosa, 304 Kan. 429, Syl. ¶ 1, 371 P.3d 915 (2016). Appellate courts do not
participate in the trial or observe the witnesses' testimony; we therefore do not reweigh
the evidence, resolve evidentiary conflicts, or reassess witness credibility. State v. Keel,
302 Kan. 560, 566, 357 P.3d 251 (2015).
Wilson claims that she could not be convicted of unlawful possession of an opiate
because the State did not prove that oxycodone—which is not specifically referenced in
K.S.A. 2019 Supp. 21-5706(a)—was an "opium, opiate, or narcotic drug" within the
meaning of that statute. She argues that the fact that Kansas statutes elsewhere categorize
oxycodone as an opiate (see K.S.A. 65-4107[b][1]) is not sufficient to render possession
of oxycodone in all instances a crime under K.S.A. 2019 Supp. 21-5706(a), particularly
when the criminal complaint does not reference that other statutory section.
While Wilson makes an interesting argument about statutory interpretation, we
find it unnecessary to resolve because the State presented testimony at trial that
oxycodone is an opiate. This testimony provided a basis from which the jury could
conclude that Wilson unlawfully possessed an opiate.
At trial, two witnesses specifically addressed whether oxycodone was an opiate. A
program manager from the State Board of Pharmacy testified twice that oxycodone "is a
Schedule II [drug]," and a Sedgwick County forensic chemist testified that "both
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[oxycodone and hydrocodone] are classified as a narcotic or an opiate drug." Given our
deference to the jury's assessment of the evidence, these statements support the jury's
finding that the substance Wilson possessed—oxycodone—was an opiate.
We note that a panel of this court recently considered a similar question in State v.
Caldwell, No. 124,476, 2022 WL 17174569, at *9-10 (Kan. App. 2022) (unpublished
opinion), petition for rev. filed December 14, 2022. The Caldwell panel held that the
State proved that hydrocodone and morphine were drugs criminalized under K.S.A. 2018
Supp. 21-5706(a)—although like oxycodone, they are not explicitly referenced in the
statute—because an officer in that case had "testified that hydrocodone and morphine are
'Schedule II narcotics.'" 2022 WL 17174569, at *10. Wilson does not meaningfully
distinguish her case from Caldwell, and we see no reason to depart from the panel's
reasoning there.
There was evidence presented at trial to show that Wilson unlawfully possessed an
opiate. We affirm her conviction for that offense.
Affirmed.
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