State v. Crudo

541 P.3d 67

STATE of Kansas, Appellee,

v.Frank Raymond CRUDO, Appellant.

No. 123,559

Supreme Court of Kansas.

Oral Argument Held April 11, 2023.

Opinion Filed January 12, 2024.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Tony Cruz, assistant county attorney, argued the cause, and Derek Schmidt, former attorney general, and Kris W. Kobach, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

Frank Raymond Crudo was driving his truck and attached fifth-wheel camper east along Interstate 70 in January 2014 when he was pulled over by Lieutenant Christopher Ricard. Lt. Ricard had observed that Crudo's license tag light on the camper was not working. As Lt. Ricard approached the truck, he smelled a strong odor of raw marijuana and called for backup. The officers then told Crudo they planned to search the truck. Crudo became combative and was ultimately handcuffed and placed inside a patrol car.

In the cab of the truck, officers found a small piece of marijuana between the seats. They then searched the camper and found more marijuana. Underneath the bathtub, officers found 19 vacuum-sealed bags, each containing approximately one pound of marijuana, and labeled by strain. Officers also found a small amount of marijuana under the stairs, along with rolling papers and a grinder.

The State charged Crudo with: (1) possession of marijuana with intent to distribute in violation of K.S.A. 2013 Supp. 21-5705(a)(4) and (a)(7), a drug severity level 2, nonperson felony; (2) no drug tax stamp in violation of K.S.A. 79-5204(a) and 79-5208, a severity level 10, nonperson felony; (3) possession of marijuana in violation of K.S.A. 2013 Supp. 21-5706(b)(3) and/or (b)(7), a class A nonperson misdemeanor; and (4) conspiracy to possess marijuana with the intent to distribute in violation of K.S.A. 2013 Supp. 21-5302(a), a severity level 2, nonperson felony.

Prior to trial, Crudo filed a motion to suppress the marijuana found in the camper. He argued that the officers lacked constitutional authority to execute a warrantless search of the camper. Specifically, he suggested that whatever legal justification existed for the warrantless search of the truck did not and could not—as a matter of law—be extended to include the fifth-wheel trailer. Ultimately, Crudo's motion was denied.

During the first jury trial Crudo moved for a directed verdict on all counts. The district court denied the motion with respect to all but the conspiracy to distribute charge, dismissing that charge by holding that the State had not shown the required meeting of the minds or mutual understanding. The jury then convicted Crudo of possession of marijuana and possession of marijuana with no drug tax stamp but was hung on the distribution charge. The district court declared a mistrial on that charge alone and Crudo was retried. Before his second trial, Crudo raised a double jeopardy argument claiming that because his conviction for simple possession of marijuana was a lesser included offense of the distribution charge, he could not be retried on the greater offense. The district court disagreed, and the charge went to trial.

At the second jury trial, Crudo was convicted of possession with intent to distribute. Crudo was then sentenced on all convictions to 36 months' probation with an underlying 108-month prison term. He appealed and the Court of Appeals affirmed his convictions. State v. Crudo , 62 Kan. App. 2d 464, 517 P.3d 857 (2022). Now Crudo seeks review of that decision. Specifically, he makes five arguments to us: (1) that the legal rationale permitting a warrantless search of his truck did not "extend" to the fifth-wheel trailer; (2) that testimony at his second trial from Lt. Ricard was expert testimony permitted by the trial court in violation of K.S.A. 2022 Supp. 22-3212(b)(2) ; (3) that the erroneous use of a permissive inference instruction amounted to reversible error; (4) that his second trial violated double jeopardy; and (5) cumulative error. We address each in turn and, finding no error, we affirm.

Search of the Fifth-Wheel Trailer Was Proper

Our standard of review governing this issue is well established:

"Our review of an evidence suppression issue is bifurcated. Without reweighing the evidence, the appellate court first examines the district court's findings to determine whether they are supported by substantial competent evidence. The district court's legal conclusions are then reviewed de novo. If there are no disputed material facts, the issue [of whether to suppress evidence ] is a question of law over which the appellate court has unlimited review. [Citations omitted.]" (Emphasis added.) State v. Karson , 297 Kan. 634, 639, 304 P.3d 317 (2013).

As in this case, when the material facts are not in dispute, the remaining question is one of law. Accordingly, we exercise unlimited review. State v. Hanke , 307 Kan. 823, 827, 415 P.3d 966 (2018). The undisputed facts relevant to the specific legal challenge Crudo mounts are as follows. The trailer was engaged as a tow unit onto Crudo's truck, and it was in fact being towed down the highway. The trailer was of a sort—a fifth-wheel—that while in operation, the occupants of the truck would have no access to the trailer. The stop was legitimate and is not questioned here. During the stop, officers noticed the smell of raw marijuana coming from the cab of the truck. Probable cause in support of this search is conceded by Crudo. Officers did not observe any smell of marijuana coming from the fifth-wheel trailer, and the State has conceded that the officers did not have "localized" probable cause specific to the trailer. Nonetheless, the officers did search the trailer.

So, the question now comes to us—given these specific undisputed facts, was the search of the trailer legally justified as a warrantless search under the Fourth Amendment to the United States Constitution? We conclude it was. The Fourth Amendment prohibits unreasonable searches and seizures, and warrantless searches are per se unreasonable unless they fall within one of the exceptions to the warrant requirement. State v. Heim , 312 Kan. 420, 422-23, 475 P.3d 1248 (2020). One such exception involves the existence of probable cause plus exigent circumstances. State v. Howard , 305 Kan. 984, 989, 389 P.3d 1280 (2017). A sub-species of this exception allows the State to satisfy proof of exigency simply by showing that the object of the search was a vehicle travelling on the road. 305 Kan. at 990, 389 P.3d 1280 ; see also State v. Doelz , 309 Kan. 133, 143, 432 P.3d 669 (2019). Thus, the so-called "automobile exception" permits the State to conduct a warrantless search of a vehicle travelling on the road anytime probable cause is present. State v. Conn , 278 Kan. 387, 395, 99 P.3d 1108 (2004) ("[T]he ‘automobile exception’ ... allows the warrantless search of a vehicle when probable cause has been established to justify a search.").

As described above, Crudo does not contest the search of the truck under the automobile exception. He argues instead that the automobile exception does not extend to include his trailer. To resolve this claim, we must examine two distinct and specific questions. First, is the fact that the trailer was being towed down the highway sufficient to establish exigency? And second, does the probable cause that gives rise to a legitimate search under the automobile exception have to be "localized"—and thus limited—to a specific area of search, or does the existence of probable cause extend as a matter of law to the entire travelling unit?

The answer to the first question is straightforward. The trailer was being towed down the highway and was sufficiently mobile to satisfy the exigency requirement. The fact the trailer had the capacity to be parked and used as a residence—as Crudo argues—is irrelevant. At the time of the stop, it was indisputably not being used that way. The United States Supreme Court has extended the automobile exception to motor homes in California v. Carney , 471 U.S. 386, 393, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985). The Court refused to distinguish vehicles based on their mere capability of functioning as a home, noting:

"In our increasingly mobile society, many vehicles used for transportation can be and are being used not only for transportation but for shelter, i.e. , as a ‘home’ or ‘residence.’ ...

"[The automobile exception] has never turned on the other uses to which a vehicle might be put. The exception has historically turned on the ready mobility of the vehicle, and on the presence of the vehicle in a setting that objectively indicates that the vehicle is being used for transportation." 471 U.S. at 393-94, 105 S.Ct. 2066.

Now we answer the second question. We conclude that probable cause to search a stopped vehicle does not have to be "localized" and thus limited to one particular area or part of the travelling unit. That is, under the automobile exception, once probable cause to search is established, it extends "bumper-to-bumper" to the entire travelling unit. See United States v. Ross , 456 U.S. 798, 825, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982) (The scope of a search under the automobile exception is identical to what a magistrate issuing a warrant could authorize—the proper scope therefore is not defined by the nature of the container but by the places in which probable cause exists to believe that the object of a search may be found.). Today's case is the first time we have considered this question in Kansas. Our sister courts, however, have routinely and consistently found that for probable cause purposes, a trailer hitched to a vehicle is considered together with the vehicle as one unit. See Aviles v. Burgos , 783 F.2d 270, 276 [1st Cir. 1986] ); United States v. Ortega-Ramos , No. 94-3803, 1995 WL 314889, at *3 (6th Cir. 1995) (unpublished opinion); United States v. Torres...