State v. Northrup

825 P.2d 174, 16 Kan. App. 2d 443, 1992 Kan. App. LEXIS 301
CourtCourt of Appeals of Kansas
DecidedJanuary 24, 1992
Docket65,911
StatusPublished
Cited by19 cases

This text of 825 P.2d 174 (State v. Northrup) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Northrup, 825 P.2d 174, 16 Kan. App. 2d 443, 1992 Kan. App. LEXIS 301 (kanctapp 1992).

Opinions

Lewis, J.:

Clayton Northrup, defendant, appeals from his convictions by a jury of one count of the sale of methamphetamine and one count of the sale of marijuana.

The convictions were primarily based on evidence from two controlled purchases of illegal drugs from the defendant. The police had utilized the services of Leslie Bowley, who had agreed to work undercover for the authorities. Bowley made one buy of methamphetamine and one buy of marijuana from the defendant on separate occasions.

The defendant argues that his convictions should be reversed because the trial court erred in admitting into evidence a statement he made to the police officers. The defendant also argues that the evidence was insufficient to prove that the substance he sold to Bowley was marijuana. We affirm the defendant’s convictions.

Bowley had run afoul of the law himself and was charged with several drug-related violations. The authorities offered him a chance to dispose of these charges by working undercover and making drug buys for the police. Bowley accepted this proposition and was assigned to work with Detective Brad Homman of the Dickinson County Sheriffs Department.

On October 14, 1989, Bowley approached the defendant, seeking to purchase “crank,” or methamphetamine. The defendant produced a quantity of the substance, which Bowley purchased with money provided by the authorities. After the purchase, Bowley turned over the substance to Detective Homman. Detective Homman performed a field test on the substance, concluded it was a controlled substance, and sent it to the KBI laboratories for further examination and identification.

On November 10, 1989, a warrant was issued for the arrest of the defendant. The warrant was issued pursuant to a complaint, charging the defendant with the sale of methamphetamine on October 14, 1989, as well as with other crimes. Contempora[445]*445neously, a search warrant authorizing the search of the defendant’s home was obtained.

On November 11, 1989, Bowley made a second controlled purchase from the defendant. On this occasion, he purchased a substance alleged to be marijuana for the price of $120 per ounce. The facts of the purchase will be further developed.

After the purchase was made on November 11, 1989, the authorities arrested the defendant and searched his home under the authority of the search warrant issued. Subsequent to his arrest, the defendant made several unprompted statements. These statements included comments to the effect that many times a five-dollar bill from a drug purchase had provided food for his family. He also expanded upon his belief that drugs should be legalized and that drugs were no worse than alcohol. These statements were admitted at trial during cross-examination of the defendant and during the State’s rebuttal evidence.

Prior to the trial, the court granted the defendant’s motion to suppress the evidence seized from his residence. The court concluded that the affidavit used to obtain the search warrant was insufficient and that the search was illegal. The State does not appeal from that ruling.

THE STATEMENTS

The defendant contends that his convictions should be reversed because of error by the trial court in admitting into evidence the spontaneous statements referred to earlier in this opinion.

The defendant’s argument evolves from the order of the trial court suppressing illegally seized evidence. The defendant argues that his statements were the indirect products of the unconstitutional search. According to Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L. Ed. 319, 40 S. Ct. 182 (1920), the exclusionary rule extends to the indirect as well as the direct products of an unlawful search. Furthermore, policies underlying the exclusionary rule invite no logical distinction between physical or verbal evidence. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).

Underlying the defendant’s argument is his insistence that the State lacked probable cause to arrest him without the suppressed evidence. In addition, he argues that not enough time elapsed [446]*446between the illegal search and his statements to dissipate the taint - of illegality. As a result, the defendant submits that his statements were “fruits of the poisonous tree” and, therefore, inadmissible.

The State counters by pointing out that the statements were made as a result of a legal arrest, which had nothing to do with the illegal search and seizure. This position is fortified by the fact that the police officers went to the defendant’s home not only with a search warrant, but also , an arrest warrant, which authorized the arrest, of the defendant for his sale of methamphetamine to Bowley on October 14, 1989. The defendant’s arrest on.an arrest warrant issued prior to the illegal search indicates that the defendant’s statements were not the “fruits” of the illegal search.

“Assuming the illegality of the search, the question narrows to one of determining whether defendant’s statements were brought about by that illegality rather than by means sufficiently distinguishable to be purged of the primary taint. Under Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407, the fruits of the poisonous tree doctrine, when applicable, not only bars derivative physical evidence, but also derivative testimonial evidence, . . . The [fruits of the poisonous tree] doctrine is inapplicable, however, where the state learns of the evidence from an independent source or where the connection between the lawless conduct of the police and the discovery of the challenged evidence has become so attenuated as to dissipate the taint.” State v. Childers, 222 Kan. 32, 40, 563 P.2d 999 (1977).

We hold that the position taken by the State is meritorious. •The evidence shows that, on October 14, 1989, Bowley purchased a controlled substance from the defendant. This sale by the defendant was a violation of the law and subjected him to arrest. On November 10, 1989, a warrant was issued for the defendant’s arrest based, at least partially, on the first sale to Bowley. There is no challenge by the defendant to the validity of the arrest warrant. It follows -that the defendant’s arrest on a warrant for an illegal drug sale, which occurred prior to the search, was not and could not have been based on evidence illegally seized from the defendant’s premises. The statements made by the defendant while in custody under the arrest warrant could not be considered “fruits” of an illegal search. The defendant’s argument that the statements were inadmissible is without merit.

[447]*447The defendant’s argument fails on another ground as well. The offending statements were not offered by the State as part of its case in chief. The statements were offered first during the cross-examination of the defendant in an effort to impeach his direct testimony. The defense to the charges was that the defendant had worked undercover with Detective Homman in the past. He attempted to explain the drug sales by suggesting they were done in an effort to gain the confidence of the drug community and to improve on his undercover skills.

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State v. Northrup
825 P.2d 174 (Court of Appeals of Kansas, 1992)

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Bluebook (online)
825 P.2d 174, 16 Kan. App. 2d 443, 1992 Kan. App. LEXIS 301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-northrup-kanctapp-1992.