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STATE v. DOILE3/3/1989
initial flashlight observation at the parking lot was improper and could not serve as probable cause for stopping the vehicle. We have previously concluded that the observation of the contraband in the parking lot was not impermissible. Therefore, the officer had probable cause to stop the vehicle. Defendant does not contend the subsequent searches and seizures from the vehicle and defendant's person were improper on any other grounds. We find no error or abuse of discretion in the trial court's refusal to suppress the items seized from defendant's automobile and his person.
Case No. 87-CR-194
We turn now to the search and seizures issues arising from case No. 87-CR-194. Defendant first argues that the affidavit filed to obtain the search warrant for his residence was insufficient to support a finding of probable cause.
In State v. Abu-Isba, 235 Kan. 851, 685 P.2d 856 (1984), we adopted the "totality of the circumstances" approach set forth in Illinois v. Gates, 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2317, reh. denied 463 U.S. 1237 (1983), relative to the issuance of search warrants, wherein we held:
"Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate. The complaint and supporting affidavits should supply the magistrate with sufficient factual information to support an independent judgment that probable cause to arrest exists." Syl. 1.
"In determining whether to issue a warrant for arrest or search a magistrate should consider the `totality of the circumstances' presented and make a practical, common-sense decision whether there is a fair probability that a crime has been committed and the defendant committed the crime, or that contraband or evidence of a crime will be found in a particular place." Syl. 2.
"On appeal, the duty of the reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that probable cause existed." Syl. 3.
The affidavit set forth the viewing of the marijuana cigarette in defendant's automobile in the parking lot, and the events of the stopping of the vehicle and the seizure of the mirror, the partially burned marijuana cigarette, and a baggie of marijuana. It further recited the seizure of the straw in which white powder residue was discovered. The affidavit further stated defendant had been convicted of selling cocaine in 1983, the sales having occurred in 1982. Based on this information, the officers sought a search warrant of defendant's residence.
In State v. Morgan, 222 Kan. 149, 153, 563 P.2d 1056 (1977), we said:
"Evidence of a single isolated drug sale may not give probable cause to believe drugs are present at a particular location; however, where an affidavit gives evidence of activity indicating protracted or continuous conduct at a particular location and that evidence provides a reasonable basis to infer drugs are still present, probable cause may exist."
Defendant had a straw containing traces of a white powder, which he tried to dispose of after arrest. He had a partially burned marijuana cigarette, a mirror, and a baggie of marijuana in his car. Almost five years previously, he had sold cocaine. No facts were alleged indicating any current drug-related activity was occurring at the residence. Do these facts warrant a finding of probable cause to believe defendant's residence contained marijuana, drug paraphernalia, and cocaine? We believe not.
Having concluded that no probable cause existed for the issuance of the search warrant, we come to the question of whether the coc
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