                         NOT DESIGNATED FOR PUBLICATION

                                            No. 121,214

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                   v.

                                   LARRY ODELL DANIELS SR.,
                                          Appellant.

                                  MEMORANDUM OPINION

       Appeal from Atchison District Court; ROBERT J. BEDNAR, judge. Opinion filed July 2, 2020.
Affirmed.


       Judd L. Herbster, of Herbster Law Firm, LLC, of Prairie Village, for appellant.


       Sherri L. Becker, county attorney, and Derek Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.


       PER CURIAM: Larry Daniels challenges his convictions for possession of drugs and
possession of drug paraphernalia, arguing the court erred in denying his motion to
suppress evidence police found when they searched his residence. He also claims the
court should have granted his request for a mistrial after a potential juror made statements
during jury selection about Daniels' previous drug use. After carefully reviewing the
parties' arguments and the record before us, we affirm.




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                        FACTUAL AND PROCEDURAL BACKGROUND

       On August 6, 2017, Detective Kelly Johansen of the Atchison County Sheriff's
Office applied for a warrant to search Daniels' house because he believed Daniels was
selling methamphetamine. Detective Johansen cited three grounds in his affidavit to
support his request.


       First, Detective Johansen indicated that a confidential informant had performed a
controlled methamphetamine buy from Daniels two days earlier. Before the purchase,
Johansen searched the informant for drugs, gave him $60, dropped him off near Daniels'
residence, parked on the street, and watched the informant enter the house. Since the
informant was wearing a wire, Johansen listened to the discussion between the informant
and a person Johansen believed to be Daniels. At one point, Johansen heard this person
offer to sell the informant two $20 packages, which the informant purchased. After the
sale, the informant left the residence; Johansen picked up the informant and returned to
the sheriff's office.


       The informant gave Detective Johansen the two packages and the unspent $20.
During the debriefing, the informant described entering the house, meeting Daniels in his
bedroom, purchasing $40 of methamphetamine from him, and leaving. Although he never
actually saw what was in the package, the informant was confident that Daniels had sold
him methamphetamine. The informant arranged to purchase additional methamphetamine
on the evening of August 6.


       Detective Johansen trusted the informant based on their past interactions. The
informant had performed several other controlled buys, accurately informed Johansen of
other drug dealers and drug activity, and always handed over the drugs and money used
during controlled buys. Given this history, Johansen believed Daniels would have the
methamphetamine that evening.



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       Second, Detective Johansen spoke to Daniels' neighbor. The neighbor informed
Johansen that she believed drugs were being sold from Daniels' residence. The neighbor
described how visitors frequently came to the house (whether by car, bike, or on foot, and
particularly on weekends) but would leave after five minutes. Visitors used to receive
drugs while sitting in their cars, but they had recently begun to go inside the house.


       Third, Detective Johansen had monitored the residence on August 3 and 4. During
that time, he noticed several people entering and leaving the house, many people sitting
in their cars outside the house, and others yelling and arguing in the front yard. In the
detective's experience, high traffic levels were indicative of drug distribution.


       A district judge issued a search warrant for methamphetamine and drug
paraphernalia on August 6—the same day Detective Johansen requested it. Later that
evening, the sheriff's office executed the warrant. Although deputies did not find
appreciable amounts of drugs, they found four pipes and five sets of scales in Daniels'
bedroom. Drug tests revealed methamphetamine, cocaine, and marijuana residue in three
of the pipes. The State charged Daniels with possession of methamphetamine, possession
of cocaine, possession of marijuana, and possession of drug paraphernalia.


       Before trial, Daniels filed a motion to suppress the evidence obtained when the
deputies executed the warrant. Daniels argued the confidential informant was unreliable
because, contrary to the affidavit, he had never sold methamphetamine to the informant
in any controlled buy. The district court held a hearing on the suppression motion the
morning of trial. Detective Johansen and Daniels testified—the detective described the
circumstances leading up to the issuance of the warrant and the subsequent search, and
Daniels denied that he had participated in a controlled buy.




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       Having heard this testimony, the district court denied Daniels' motion. The court
noted that although there was a factual dispute over whether Daniels had been involved in
the sale to the confidential informant, the detective reasonably relied on information
obtained in good faith. And the court noted other details—the neighbor's and Detective
Johansen's own observations—supported the detective's belief that Daniels was selling
drugs from his residence.


       The case proceeded to trial. During jury selection, the State asked the pool of
potential jurors whether anyone knew Daniels. One potential juror responded that he did,
as he had used drugs with Daniels about 13 years ago. The potential juror indicated he
could not be a fair and impartial juror, and the district court removed him for cause from
the jury pool.


       Daniels asked the court to dismiss the remainder of the prospective jurors—
essentially, to declare a mistrial—arguing the jury pool had been tainted by the potential
juror's statements about Daniels' previous drug use. The court denied this motion. But it
immediately instructed the prospective jurors that the defendant was presumed innocent,
and the jury was charged with deciding the case based on the evidence to be presented:


                 "Ladies and gentlemen, at this time the Court is going to again instruct you to
       ignore any comments that are made by any prospective juror as to any past relationship in
       this matter.
                 "Again, your job and your focus will be to decide this case based on the evidence
       that is presented, not upon any idle remarks that are made by anyone else.
                 "Again, as I have instructed you before, the defendant is presumed innocent as he
       sits here because there's no evidence that is presented.
                 "So idle comments or comments that are made that might come up, please ignore
       those until you have heard the evidence that is presented in this case."




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       The jury convicted Daniels on all four charges. The district court imposed
concurrent sentences for all four offenses, for a controlling prison sentence of 30 months,
followed by 12 months' postrelease supervision.


                                        DISCUSSION

       Daniels challenges his convictions in two respects on appeal. He argues the district
court erred in denying his motion to suppress, as the confidential informant's statements
in the affidavit supporting the search warrant were unreliable. And he asserts that the
court abused its discretion when it denied his motion for a mistrial during jury selection.
As the following discussion indicates, these arguments do not apprise us of error.


   1. The district court did not err in denying Daniels' motion to suppress.

       The Fourth Amendment to the United States Constitution, which contains
language nearly identical to Section 15 of the Kansas Constitution Bill of Rights, states
that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularity describing the place to be searched, and persons or things to be
seized." Daniels argues the search warrant here lacked probable cause because it lacked
information relating to the confidential informant's criminal history as a registered drug
offender and incentive to act as an informant. Daniels asserts this information was critical
to any assessment of the informant's reliability and, without it, the warrant did not
provide probable cause to search Daniels' home.


       As a preliminary matter, Daniels' challenge to the search warrant faces a number
of procedural hurdles. First, although the district court addressed Daniels' suppression
motion the morning of trial—but before jury selection and the presentation of any
evidence—Daniels did not renew his objection to the deficiency of the search warrant
when the State presented the evidence obtained from the search to the jury. And the
argument he now raises—the informant's criminal history and incentive to act as an


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informant—is different from the argument he presented to the district court in his motion
to suppress.


       Kansas law requires a party to "'make a specific and timely objection at trial in
order to preserve evidentiary issues for appeal.'" State v. Brown, 307 Kan. 641, 645, 413
P.3d 783 (2018) (quoting State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 [2010]); see
K.S.A. 60-404. The purpose of the contemporaneous-objection rule is to allow the district
court to act as an evidentiary gatekeeper at trial—to rule on the admissibility of evidence
based on specific arguments raised during the course of the trial, with the context of other
evidence and testimony presented. See State v. Garcia-Garcia, 309 Kan. 801, 810, 441
P.3d 52 (2019). For this reason, the rule applies even when a court has previously ruled
on the defendant's objection in a suppression hearing; the evidence presented at such a
hearing may differ from the evidence at trial. State v. Sean, 306 Kan. 963, 971, 399 P.3d
168 (2017).


       As a corollary to this rule, a party cannot object on one ground at a suppression
hearing, present a different argument at trial, and argue a third ground on appeal. Garcia-
Garcia, 309 Kan. at 810. Not only does such a practice fly in the face of K.S.A. 60-404's
requirement of a specific, contemporaneous objection, but it also prevents meaningful
appellate review. State v. Richard, 300 Kan. 715, 726, 333 P.3d 179 (2014). The aim of
both principles is to allow the district court the opportunity to consider and rule on the
issue raised.


       Daniels did not renew his arguments regarding the deficiencies in the search
warrant at trial. Though he objected to some of the evidence obtained in the search on
other grounds (claiming the scales were not evidence of possession), he never argued the
evidence should be excluded based on the warrant. And the challenge he now brings is
different from the argument he made at the suppression hearing. Daniels originally
alleged the affidavit accompanying the warrant contained false information (claiming he


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did not sell drugs, so he never participated in a controlled drug buy). But on appeal, he
argues the warrant omitted material information concerning the confidential informant's
criminal history as a registered drug offender and incentive to cooperate. This second
point is particularly problematic from the standpoint of our review because the argument
Daniels now raises—the alleged omission of material information in the affidavit
accompanying the search warrant—requires factual findings by the district court.


       "Generally, a defendant may not dispute allegations in the affidavit upon which a
search warrant was issued against him." State v. Jensen, 259 Kan. 781, 787, 915 P.2d 109
(1996). But the United States Supreme Court created an exception in Franks v. Delaware,
438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), in instances when the affidavit
contains false or misleading information. Under Franks, a defendant who challenges the
reliability of a search warrant's accompanying affidavit may be entitled to an evidentiary
hearing if he or she submits a sworn statement alleging the affidavit "(1) contains
statements that are material to the issuance of the search warrant because the statements
were necessary to find probable cause and (2) the material statements (a) were a
deliberate falsehood, (b) were made in reckless disregard for the truth, or (c) deliberately
omitted a material fact." State v. Adams, 294 Kan. 171, 179, 273 P.3d 718 (2012).


               "In other words, the Franks Court explained, if a defendant makes a prima facie
       showing that the affidavit is questionable, the trial court should set aside or excise the
       challenged portions of the affidavit and consider whether the remaining portions of the
       affidavit provide sufficient evidence of probable cause. If probable cause can be found
       without the excised statements, no evidentiary hearing is required. On the other hand, if
       there is not sufficient content in the remaining portion of the affidavit to support a finding
       of probable cause, the defendant is entitled to an evidentiary hearing to establish the
       affiant deliberately omitted a material fact, deliberately made a false statement, or made a
       statement with reckless disregard for the truth." 294 Kan. at 179.




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       Daniels originally argued the affidavit contained a "deliberate falsehood" under
the first Franks exception. The district court heard testimony on that claim at the
suppression hearing and found Detective Johansen had acted in good faith based on the
evidence and reasonably believed, based on that evidence, that Daniels was selling drugs
out of his home. The court also found that, even without the informant's statements, the
information provided by Daniels' neighbor and Detective Johansen himself independently
supported the issuance of the warrant.


       Daniels now argues that a different Franks exception, the "deliberate omission of a
material fact," applies. To prevail, he must show Detective Johansen deliberately omitted
the informant's criminal history and incentive to cooperate from the affidavit, and that
information was material to issuing the search warrant. See State v. Landis, 37 Kan. App.
2d 409, 415, 156 P.3d 675, rev. denied 284 Kan. 949 (2007). This is a different claim and
requires different findings by the court—findings the district court was never given the
opportunity to make. For these reasons, we conclude Daniels' argument regarding the
confidential informant's criminal history is not properly before us.


       Finally, we note that the district court's statements at the suppression hearing
regarding the argument Daniels raised then—that the informant was unreliable because
Daniels had not been selling drugs—appear to undermine the argument he now makes on
appeal. The district court found that Detective Johansen's statements in his affidavit were
made in good faith (that is, not deliberately false), even though Daniels' defense attorney
pointed out during cross-examination that the informant had a criminal history, which is
why that person was working with law enforcement. And the court's findings that the
information in the affidavit regarding the personal observations of Daniels' neighbor and
Detective Johansen independently supported a finding of probable cause is fatal to his
present argument on appeal. See Adams, 294 Kan. at 179. Daniels has not apprised us of
error in the district court's decision on his motion to suppress.



                                              8
   2. The district court did not abuse its discretion by denying Daniels' motion for a
      mistrial.

       Daniels also argues the district court erred when it denied his request for a
mistrial—that is, for the dismissal of the remaining jury pool—after the prospective juror
indicated he had used drugs with Daniels 13 years earlier. We conclude the court did not
abuse its discretion in proceeding as it did.


       Under K.S.A. 22-3423(1)(c), a district court may declare a mistrial when
"[p]rejudicial conduct . . . makes it impossible to proceed with the trial without injustice
to either the defendant or the prosecution." Our Kansas Supreme Court has explained that
district courts engage in a two-step process when deciding whether to declare a mistrial.
(1) The court must determine whether a fundamental failure occurred in the proceeding;
if so, (2) the court must assess whether the trial can continue without injustice. State v.
Ward, 292 Kan. 541, Syl. ¶ 1, 256 P.3d 801 (2011). In some instances, a limiting
instruction or jury instruction may lessen or cure the prejudice that occurred. If those
actions would not do so, the court must decide whether the conduct is such that it results
in injustice—that is, whether the conduct deprived the parties of a fair trial. State v.
Armstrong, 299 Kan. 405, 442, 324 P.3d 1052 (2014); Ward, 292 Kan. 541, Syl. ¶ 1.


       Both assessments involve the exercise of the district court's discretion. Thus,
appellate courts review the denial of a motion for a mistrial for an abuse of discretion.
292 Kan. at 550-51. A court abuses its discretion when no reasonable person would adopt
the court's decision. 292 Kan. at 550.


       Kansas caselaw contains multiple instances where appellate courts have upheld the
denial of a mistrial when potential jurors reference a defendant's prior crimes or
unfavorable conduct. For example, State v. Betancourt, 299 Kan. 131, 322 P.3d 353
(2014), involved the denial of a mistrial after a prospective juror indicated she knew the
case was gang related. The Kansas Supreme Court affirmed, even though there was no


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limiting instruction given and the potential juror was not dismissed for cause, because the
statement was brief and the topic was not brought up again. 299 Kan. at 146; see also
State v. Angelo, 287 Kan. 262, 285, 197 P.3d 337 (2008) (no error in denying a mistrial
when the defendant's wife mistakenly testified the defendant had previously been charged
with attempted murder instead of aggravated battery); State v. Mayberry, 248 Kan. 369,
380-81, 807 P.2d 86 (1991) (prospective juror's statement that he knew of the defendant's
previous conviction did not deprive defendant of a fair trial), disapproved of on other
grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006).


       Here, the district court did not explicitly state whether, in its judgment, the
potential juror's statement regarding Daniels' previous drug use resulted in a fundamental
failure in the proceeding. But even assuming such a failure occurred, the steps the district
court took to remedy any problems the statement may have caused were reasonable—that
is, not an abuse of discretion. See Ward, 292 Kan. at 550. In particular, the court
dismissed the juror for cause and gave a limiting instruction to the remaining jury pool,
underscoring the presumption of Daniels' innocence and the jurors' obligation to consider
only the evidence, not "idle remarks" of potential jurors. Daniels does not argue the other
jurors ignored this statement of the law. The district court did not abuse its discretion
when it decided to proceed in this manner in lieu of dismissing the jury pool.


       The district court did not err when it denied Daniels' motion for a mistrial.


       Affirmed.




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