CASE ANNOTATIONS

1. Complaint charging unlawful possession of marijuana cited wrong statutes; defendant fully apprised of charge; statutes reviewed. State v. Salters, 214 Kan. 860, 522 P.2d 436.

2. Conviction for sale under subsection (b); word "sale" construed; alleged trial errors reviewed and conviction upheld. State v. Nix, 215 Kan. 880, 881, 885, 529 P.2d 147.

3. Seller of heroin from which purchaser died from overdose not guilty of felony murder, under facts. State v. Mauldin, 215 Kan. 956, 958, 529 P.2d 124.

4. Exigent circumstances must exist before arrest may be made for possession of marijuana. State v. Schur, 217 Kan. 741, 747, 538 P.2d 689.

5. Record examined on appeal from conviction hereunder; instructions upheld; search not illegal. State v. Guillen, 218 Kan. 272, 543 P.2d 934.

6. Appeal by state; subsection (a) construed; conviction under city ordinance not prior conviction within contemplation of subsection (a). State v. Floyd, 218 Kan. 764, 765, 766, 767, 768, 544 P.2d 1380.

7. Conviction of sale of marijuana reversed; failure to disclose exculpatory evidence by prosecution. State v. Quinn, 219 Kan. 831, 549 P.2d 1000.

8. Evidence sufficient to sustain conviction hereunder. State v. Faulkner, 220 Kan. 153, 154, 551 P.2d 1247.

9. Conviction hereunder; former member of sheriffs' staff not disqualified to serve as judge at preliminary hearing; evidence upheld. State v. Solem, 220 Kan. 471, 476, 552 P.2d 951.

10. Alleged errors in conviction hereunder reviewed; judgment affirmed. State v. Griffin, 221 Kan. 83, 85, 558 P.2d 90.

11. Prosecution hereunder; order suppressing marijuana seized reversed; search and seizure reasonable. State v. Hays, 221 Kan. 126, 128, 557 P.2d 1275.

12. Crimes in which prior conviction is a necessary element distinguished from crimes considered in establishing penalties. State v. Loudermilk, 221 Kan. 157, 160, 557 P.2d 1229.

13. Appeal from conviction for sale of narcotic drugs; no error in overruling motions for acquittal, continuance or for new trial. State v. Holt, 221 Kan. 696, 561 P.2d 435.

14. Absent statutory authority, a person against whom search warrant is directed may not dispute supporting affidavit. State v. Sanders, 222 Kan. 189, 563 P.2d 461.

15. Evidence in plain view seized without warrant lawful; rules applied. State v. Jones, 2 Kan. App. 2d 38, 39, 577 P.2d 357.

16. Evidence of prior misdemeanor conviction under this section admitted for limited purpose not reversible error. State v. Forsyth, 2 Kan. App. 2d 44, 45, 574 P.2d 241.

17. Evidence to support verdict of possession of marijuana. State v. Bullocks, 2 Kan. App. 2d 48, 574 P.2d 243.

18. Conviction hereunder reversed; rights under warrantless clause of Fourth Amendment violated. State v. Dean, 2 Kan. App. 2d 64, 574 P.2d 572.

19. Marijuana on which prosecution based was product of unreasonable search; conviction reversed. State v. Stitzel, 2 Kan. App. 2d 86, 575 P.2d 571.

20. Applied; conviction of possession of marijuana with intent to sell sustained; statute constitutional. State v. Luginbill, 223 Kan. 15, 21, 574 P.2d 140.

21. Offense of possession with intent to sell merges with offense of sale, when sale consummated. State v. Thornton, 224 Kan. 127, 577 P.2d 1190.

22. Conviction under paragraph (b)(1) reviewed; no reversible error. State v. Evans, 219 Kan. 515, 516, 517, 548 P.2d 772.

23. Conviction of heroin possession; motion to suppress evidence properly denied; presumption of validity of affidavit supporting search warrant; exception inapplicable. State v. Jacques, 225 Kan. 38, 44, 587 P.2d 861.

24. Seizure of marijuana without warrant held reasonable; conviction of possession affirmed. State v. Harrington, 2 Kan. App. 2d 592, 585 P.2d 618.

25. Conviction of possession of marijuana upheld. State v. Newell, 226 Kan. 295, 296, 297, 597 P.2d 1104.

26. Conviction under subsection (b) reversed; remanded for sentencing for simple possession under subsection (a) as a lesser included offense. State v. Smith, 4 Kan. App. 2d 149, 150, 152, 604 P.2d 295.

27. Conviction of possession and sale of substances constitutes multiplicitous convictions. State v. Becknell, 5 Kan. App. 2d 269, 615 P.2d 795.

28. Conviction of possession of a narcotic drug upheld even though no evidence was given that cocaine is a narcotic drug within the statutory definition. State v. Hermerding, 5 Kan. App. 2d 797, 626 P.2d 210.

29. Search of truck was under plain view doctrine; statute is constitutional; section is a self-contained habitual criminal act. State v. Harder, 8 Kan. App. 2d 98, 99, 100, 102, 103, 650 P.2d 724 (1982).

30. Proof of sale of any amount of a controlled substance sufficient to sustain conviction. State v. Loveland, 8 Kan. App. 2d 196, 653 P.2d 472 (1982).

31. Cited; court should consider "totality of circumstances" in issuing search warrant. State v. Rose, 8 Kan. App. 2d 659, 660, 665 P.2d 1111 (1983).

32. Where defendant denies involvement in illegal activity, not entitled to instruction on procuring agent theory as affirmative defense. State v. Brown, 8 Kan. App. 2d 715, 667 P.2d 388 (1983).

33. Warrant issued on oral statements not under oath nor reduced to writing; affidavit held insufficient to justify warrant. State v. Jacob, 8 Kan. App. 2d 729, 732, 667 P.2d 397 (1983).

34. Appeal from conviction hereunder; one tactical error in trial by defendant's counsel not sufficient to show incompetent counsel. State v. Logan, 9 Kan. App. 2d 353, 354, 678 P.2d 181 (1984).

35. Trial court did not err in refusing to suppress evidence seized by search warrant based on unverified reports coupled with personal observation. State v. Walter, 234 Kan. 78, 79, 670 P.2d 1354 (1983).

36. Owners of cordless phone, knowing equipment, have no expectation of privacy to conversation intercepted by FM radio. State v. Howard, 235 Kan. 236, 249, 679 P.2d 197 (1984).

37. Warrantless arrest and searches of defendant, airplane and jail cell; use of photographs; evidence of prior crimes discussed. State v. Gardner, 10 Kan. App. 2d 408, 701 P.2d 703 (1985).

38. Conviction hereunder; speedy trial, search and seizure discussed. State v. Huber, 10 Kan. App. 2d 560, 561, 704 P.2d 1004 (1985).

39. Conviction hereunder; statutes describing crimes of possession and sale of material containing psilocybin not unconstitutionally vague. State v. Justice, 10 Kan. App. 2d 569, 577, 704 P.2d 1012 (1985).

40. State appeal on dismissal; disclosure of confidential informant's identity, sanctions enforcing discovery orders discussed. State v. Schilling, 238 Kan. 593, 712 P.2d 1233 (1986).

41. Where defendant's attorney admitted prior convictions in defendant's presence at stipulations and sentencing, enhancement of sentence proper. State v. Myers, 10 Kan. App. 2d 266, 274, 275, 697 P.2d 879 (1985).

42. Charge dismissed; 179-day period accused's motion to suppress evidence kept under advisement, right to speedy trial (K.S.A. 22-3402) examined. State v. Roman, 240 Kan. 611, 731 P.2d 1281 (1987).

43. Conviction affirmed; sentence following plea agreement examined. State v. McQueen, 12 Kan. App. 2d 147, 736 P.2d 947 (1987).

44. Conviction reversed; search warrant based on warrantless searches, expectation of privacy, curtilage of home, plain view doctrine examined. State v. Waldschmidt, 12 Kan. App. 2d 284, 285, 740 P.2d 617 (1987).

45. Dismissal of charges reversed; sufficiency of written form of indictment, information, or complaint (K.S.A. 22-3201) examined. State v. Vakas, 242 Kan. 103, 104, 744 P.2d 812 (1987).

46. Conviction affirmed; right to privacy, electronic tracking device on aircraft, extrajudicial statements, judicial disqualification examined. State v. Strayer, 242 Kan. 618, 750 P.2d 390 (1988).

47. Cited; public censure imposed on attorney following guilty plea of marijuana possession noted. In re Diehl, 243 Kan. 580, 757 P.2d 732 (1988).

48. Cited; search and seizure with warrant based on observations of state park custodian; private citizen not agent of state examined. State v. Smith, 243 Kan. 715, 717, 763 P.2d 632 (1988).

49. Use of inadmissible statements to impeach defendant's testimony, evidence of prior convictions and testimony surrounding circumstances thereof examined. State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989).

50. Propriety of searches and seizures, excessive sentencing examined. State v. Doile, 244 Kan. 493, 769 P.2d 666 (1989).

51. Identification of confidential informant (K.S.A. 60-436) when in camera hearing required to determine relevance of testimony to defense examined. State v. Washington, 244 Kan. 652, 772 P.2d 768 (1989).

52. Consent to search based on law enforcement officer's threat to obtain search warrant examined. State v. Brown, 245 Kan. 604, 783 P.2d 1278 (1989).

53. "Totality of the circumstances" indicating adequacy of affidavit submitted in support of search warrant examined. State v. Toler, 246 Kan. 269, 787 P.2d 711 (1990).

54. Exclusion of evidence on grounds of remoteness that substantially impairs state's case examined. State v. Griffin, 246 Kan. 320, 324, 787 P.2d 701 (1990).

55. Materials directly or indirectly obtained as "Fruit of Poisonous Tree" excluded from evidence. State v. Daly, 14 Kan. App. 2d 310, 313, 789 P.2d 1203 (1990).

56. Refusal to instruct on entrapment examined; defendant entitled to instruction on his theory of case. State v. McLaren, 14 Kan. App. 2d 449, 453, 793 P.2d 763 (1990).

57. Possession of methamphetamine with intent to sell not included crime (K.S.A. 21-3107) under conspiracy (K.S.A. 21-3302) to sell. State v. Matson, 14 Kan. App. 2d 632, 633, 634, 798 P.2d 488 (1990).

58. Effect of K.S.A. 21-4603(3)(a) on court's discretion to modify sentence, nature of SRDC recommendation examined. State v. Moon, 15 Kan. App. 2d 4, 5, 801 P.2d 59 (1990).

59. Testimony regarding reliability of marijuana identification test distinguished from testimony showing test results; instruction regarding testimony of paid confidential informant examined. State v. Fuller, 15 Kan. App. 2d 34, 802 P.2d 599 (1990).

60. Unlawful arrest as not giving immunity from prosecution nor defense to conviction, admissibility of statements after arrest examined. State v. Weis, 246 Kan. 694, 695, 792 P.2d 989 (1990).

61. Amendments to sentencing statutes regarding modification (K.S.A. 21-4603(3)(a)) and presumption of probation (K.S.A. 21-4606a) as substantive and applicable prospectively determined. State v. Sylva, 14 Kan. App. 2d 609, 795 P.2d 947 (1990); affirmed 248 Kan. 118, 804 P.2d 967 (1991).

62. Seizure of person and pat-down search examined; circumstances determined as insufficient to justify stop and search. State v. Burks, 15 Kan. App. 2d 87, 88, 803 P.2d 587 (1991).

63. Possession of controlled substance is distinct from possession without affixing stamps (K.S.A. 79-5208); neither is included offense of other. State v. Berberich, 248 Kan. 854, 862, 811 P.2d 1192 (1991).

64. Lack of probable cause in stopping vehicle and suppression of evidence seized from illegal stop and frisk noted. State v. McKeown, 249 Kan. 506, 819 P.2d 644 (1991).

65. Evidence arising from "reverse sting" drug operation sufficient to establish probable cause for violations of K.S.A. 21-3205(1) and (e) herein examined. State v. Starks, 249 Kan. 516, 820 P.2d 1243 (1991).

66. Guidelines for determining reasonableness of impounding a vehicle examined. State v. Teeter, 249 Kan. 548, 550, 819 P.2d 651 (1991).

67. Informant's unsworn statement accompanying sworn application for search warrant, stale information, exception to exclusionary rule examined. State v. Hemme, 15 Kan. App. 2d 198, 806 P.2d 472 (1991).

68. Necessity of making specific findings pursuant to K.S.A. 21-4607(2) and (3) before imposing a fine, prospective application of K.S.A. 21-4603(3) examined. State v. McNett, 15 Kan. App. 2d 291, 292, 807 P.2d 171 (1991).

69. Search warrant lacking sufficient definiteness as to subunit in multiple occupancy structure invalid; exception where affidavit contains description and affiant is officer executing warrant. State v. Dye, 250 Kan. 287, 288, 299, 826 P.2d 500 (1992).

70. Estranged wife retained common authority or sufficient relationship to the premises to give valid consent to search; estranged wife had apparent authority to consent to search. State v. Ratley, 16 Kan. App. 2d 589, 590, 827 P.2d 78 (1992).

71. Hearsay nature of certain conversations, statements, and reports of deceased confidential informant examined. State v. Rowe, 252 Kan. 243, 244, 843 P.2d 714 (1992).

72. Search warrant upheld under "good faith" exception although affidavit did not establish probable cause. State v. Sidel, 16 Kan. App. 2d 686, 694, 827 P.2d 1215 (1992).

73. Sale of marijuana in violation of subsection (b) is a lesser included offense of sale in violation of subsection (e). State v. Josenberger, 17 Kan. App. 2d 167, 836 P.2d 11 (1992).

74. Failure to give cautionary instruction on testimony of paid informant as reversible error examined. State v. Novotny, 17 Kan. App. 2d 363, 367, 837 P.2d 1327 (1992).

75. Prior conviction used to enhance classification cannot also be used to enhance sentence. State v. Geddes, 17 Kan. App. 2d 588, 594, 841 P.2d 1088 (1992).

76. Cited in finding probable cause that aiding and abetting in the sale of drugs was present; charge hereunder discussed. State v. Chapman, 252 Kan. 606, 609, 847 P.2d 1247 (1993).

77. State must prove underlying felony in prosecution for use of communication facility to facilitate violation of section. State v. Hill, 252 Kan. 637, 638, 640, 645, 847 P.2d 1267 (1993).

78. Conviction affirmed; circumstances when failure of court to give cautionary instruction on testimony of paid informant not reversible error examined. State v. Novotny, 252 Kan. 753, 851 P.2d 365 (1993).

79. Whether detection of marijuana odor standing alone provides probable cause for vehicle search following checklane stop examined. State v. MacDonald, 253 Kan. 320, 856 P.2d 116 (1993).

80. Validity of plea agreement examined; under facts stated, prosecution ordered to comply. State v. Ratley, 253 Kan. 394, 399, 855 P.2d 943 (1993).

81. Admissibility of bloodhound tracking evidence examined. State v. Wainwright, 18 Kan. App. 2d 449, 450, 856 P.2d 163 (1993).

82. Whether evidence sufficient to show possession where auto passenger charged for marijuana found in trunk examined. State v. Rios, 19 Kan. App. 2d 350, 355, 869 P.2d 755 (1994).

83. Whether intercepted conversations should be suppressed because they were unrelated to offenses described in wiretap application examined. State v. Gibson, 255 Kan. 474, 476, 492, 874 P.2d 1122 (1994).

84. Whether prior convictions must be for the same offense or in the same article to enhance sentence examined. State v. Greever, 19 Kan. App. 2d 893, 899, 878 P.2d 838 (1994).

85. Whether judge erred by using inappropriate standard in reviewing probable cause to hold defendant examined. State v. Bockert, 257 Kan. 488, 489, 893 P.2d 832 (1995).

86. Assessments ordered pursuant to drug tax act (K.S.A. 79-5201 et seq.) do not constitute criminal punishment for double jeopardy purposes. State v. Gulledge, 257 Kan. 915, 896 P.2d 378 (1995).

87. Noted in discussion of whether exceptions listed in statute need to be included in complaint. State v. Christiansen, 258 Kan. 465, 469, 904 P.2d 968 (1995).

88. Evidence of marijuana amount exceeding average user's needs sufficient to prove possession with intent to sell. State v. Heiskell, 21 Kan. App. 2d 105, 112, 896 P.2d 1106 (1995).

89. Alleged uncounseled conviction may be used to enhance sentence where defendant signed waiver of counsel. State v. Likins, 21 Kan. App. 2d 420, 431, 903 P.2d 764 (1995).

90. At resentencing, state may present proper authenticating documents of defendant's criminal history. State v. Strickland, 23 Kan. App. 2d 615, 933 P.2d 782 (1997).

91. Severity level of drug possession charge under K.S.A. 65-4162 should have been enhanced for conviction hereunder. State v. Crank, 262 Kan. 449, 989 P.2d 890 (1997).