Date: 01-12-2024

Case Style:

State of Kansas v. FRANK RAYMOND CRUDO

Case Number: No. 123,559

Judge: STEGALL, J

Court: IN THE SUPREME COURT OF THE STATE OF KANSAS

Plaintiff's Attorney: 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

Defendant's Attorney: Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant

Description: Frank Raymond Crudo was driving his truck and attached fifthwheel 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
3
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-
4
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 fifthwheel—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.
5
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; 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—
6
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.
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, No. 3-:05-CR-051, 2005 WL 3546677, at
*7-8 (S.D. Ohio 2005) (unpublished opinion) (citing United States v. Ervin, 907 F.2d
1534, 1537-38 [5th Cir. 1990]; see also State v. Overbey, 790 N.W.2d 35, 42 (S.D. 2010)
7
("The fifth-wheel camper was being towed by the pickup in the same fashion in which a
semi-tractor tows a trailer. The camper was a part of the pickup and subject to search as
long as the motor vehicle exception was satisfied as to any part of the pickup or
camper."); United States v. Millar, 543 F.2d 1280, 1283 (10th Cir. 1976) ("The
automobile and the trailer constituted a unit."); State v. Finlay, 257 Or. App. 581, 593,
307 P.3d 518 (2013) ("'quality of mobility is as true for the trailer attached to defendant's
pickup as for the pickup itself'"); State v. Specht, No. 106,272, 2012 WL 1970108, at *7
(Kan. App. 2012) (unpublished opinion) ("[O]nce a police officer lawfully discovers
contraband in the passenger compartment of a vehicle, probable cause exists to search the
remainder of the vehicle, including a trunk or camper shell, for additional evidence of
contraband.").
The logic and weight of these authorities convinces us to adopt the "one unit" rule.
Thus, when executing a warrantless search under the automobile exception to the warrant
requirement, the existence of probable cause with respect to any part of the vehicle is
sufficient to establish probable cause to search the entire travelling unit. Therefore, the
search of Crudo's trailer was supported by both exigency and probable cause and was not
done in violation of Crudo's Fourth Amendment rights.
The District Court Did Not Abuse Its Discretion by Permitting Lt. Ricard to Testify as
a Lay Witness
We know that the State did not comply with K.S.A. 2022 Supp. 22-3212(b)(2)
(disclosure of expert opinions) with respect to Lt. Ricard's testimony because that
testimony was admitted as a lay opinion. "Whether a witness—expert or layperson—is
qualified to testify as to an opinion is to be determined by the trial court in the exercise of
its discretion." State v. Hubbard, 309 Kan. 22, 43, 430 P.3d 956 (2018). Under this
standard, "'"[a] trial court abuses its discretion when the act complained of '(1) is
arbitrary, fanciful or unreasonable; (2) is based on an error of law; or (3) is based on an
8
error of fact.'"'" 309 Kan. at 43 (quoting State v. Sasser, 305 Kan. 1231, 1243, 391 P.3d
698 [2017]). Crudo argues on appeal that the district court acted unreasonably and
outside its discretion when it determined that Lt. Ricard was not relying on knowledge
that was scientific, technical, or specialized during his testimony at Crudo's second trial
(and therefore did not have to be qualified as an expert witness). See K.S.A. 2022 Supp.
60-456(a).
Crudo contends that three specific aspects of Lt. Ricard's testimony were improper
as lay opinion and should have required Lt. Ricard and the State to satisfy the more
rigorous requirements of expert testimony—both procedural and substantive. First, the
testimony about the packaging and quantity of marijuana found in the camper and
inferences about distribution. Second, testimony about the wholesale price of marijuana.
And finally, testimony describing the behavioral patterns of marijuana traffickers—
specifically, that the product is purchased in the western states and travels east on "short
trips" in order to decrease the likelihood of encounters with law enforcement.
Before we examine the substance of Crudo's argument, we note that the Court of
Appeals invoked a preservation bar to consideration of at least part of this aspect of the
case. As a procedural bar to appellate review, K.S.A. 60-404 requires a party to make a
contemporaneous objection to issues involving the erroneous admission or exclusion of
evidence. State v. Hillard, 313 Kan. 830, 839, 491 P.3d 1223 (2021). A pretrial objection
to the admission or exclusion of evidence must be preserved by contemporaneously
objecting at trial, which can be accomplished through a standing objection. See State v.
Richard, 300 Kan. 715, 721, 333 P.3d 179 (2014). Contrary to the Court of Appeals, we
find Crudo substantially satisfied his burden under the contemporaneous objection rule.
Thus, we will consider the merits of his claim.
The statute governing opinion testimony, K.S.A. 2022 Supp. 60-456(a), provides
in relevant part:
9
"If the witness is not testifying as an expert, the testimony in the form of opinions
or inferences is limited to such opinions or inferences as the judge finds: (1) Are
rationally based on the perception of the witness; (2) are helpful to a clearer
understanding of the testimony of the witness; and (3) are not based on scientific,
technical or other specialized knowledge within the scope of subsection (b)."
K.S.A. 2022 Supp. 22-3212(b)(2) requires the prosecuting attorney to provide a
summary of anything an expert witness intends to testify to on direct examination prior to
trial. Subsection (i) of that statute authorizes the district court to exclude any expert
witness testimony not properly disclosed. It is undisputed that the State did not disclose
Lt. Ricard's testimony in the second trial pursuant to K.S.A. 2022 Supp. 22-3212(b)(2).
His testimony was permitted as lay opinion evidence. Thus, if the district court abused its
discretion in its determination that Lt. Ricard's testimony was not expert opinion
evidence, the testimony ought to have been disallowed.
There is no bright line rule or clear precedent on this issue in Kansas—or
elsewhere. A review of caselaw from our state, other states, and federal precedent creates
a rule that is murky at best. "'The line between expert testimony . . . and lay opinion
testimony . . . is not easy to draw.'" United States v. Ayala-Pizarro, 407 F.3d 25, 28 (1st
Cir. 2005). We recently recognized "the difficulty drawing sharp boundaries between lay
and expert opinion testimony." Hubbard, 309 Kan. at 45; see also Osbourn v. State, 92
S.W.3d 531, 537 (Tex. Crim. App. 2002) ("A distinct line cannot be drawn between lay
opinion and expert testimony because all perceptions are evaluated based on
experiences.").
The subject is further muddled when the individual testifying is a law enforcement
officer because they regularly offer evidence based on their training and experience
without being qualified as expert witnesses. Nonetheless, we start any analysis of police
10
testimony with basic understanding that "[t]he rule of admissibility of lay opinion
testimony is no different when . . . the lay opinion is offered by a police officer." Warren
v. State, 164 Md. App. 153, 168, 882 A.2d 934 (2005).
"The determination of whether testimony is properly admitted as lay opinion is
based upon the nature of the testimony, not whether the witness could be qualified as an
expert." United States v. Moran, 778 F.3d 942, 967 (11th Cir. 2015). "Experience-derived
police testimony concerning criminals' typical modi operandi during a drug transaction
does not automatically constitute expert testimony." United States v. Page, 521 F.3d 101,
105, as modified by 542 F.3d 257 (1st Cir. 2008). Stated another way, the bare use of the
terms "training" and "experience" does not automatically make someone an expert. See In
re Ondrel M., 173 Md. App. 223, 245, 918 A.2d 543 (2007). At the most basic level,
"'opinions are formed by evaluating facts based on life experiences including education,
background, training, occupation, etc.'" 173 Md. App. at 244.
Given all of this, we must return to the touchstone statutory language of K.S.A.
2022 Supp. 60-456—lay testimony cannot be "based on scientific, technical or other
specialized knowledge." And here we are not tasked with deciding—as a matter of law—
whether Lt. Ricard's testimony was in fact expert or lay testimony. Ultimately, the district
court's decision in this matter was an evidentiary one. And we emphasize that we are
reviewing it as such. We need only decide whether the trial judge abused its discretion.
And based on the factors discussed below, we hold it did not.
As a preliminary matter, we observe that whether this specific testimony is even
"opinion" testimony at all is open to doubt. Testimony about patterns of distribution,
prices, and even inferences concerning distribution are all arguably observable facts
directly within the observation of the testifying witness. The parties, however, seem to
concede that the testimony at issue must be analyzed as "opinion" testimony, and that is
how the matter comes before us. And we will review it as such.
11
The district court concluded that testimony about nine uniform, individually
wrapped, labelled by strain, and hidden one-pound packages of marijuana and inferences
to be drawn from these facts about distribution was not based on "scientific, technical or
other specialized knowledge." We cannot find any abuse of discretion in this ruling.
Indeed, the facts and inferences seem clearly to be in the purview of an ordinary person's
common understanding.
Second, the district court concluded that testimony about the wholesale price of
marijuana was not based on "scientific, technical or other specialized knowledge." Again,
we see no abuse of discretion in this conclusion. General knowledge about marijuana is
growing rapidly as it becomes more accessible across most states. Information about
price is discoverable and readily available. Further, comprehending and interpreting that
information does not require special training or complex analysis. This testimony just
recites the price of an item. The district court did not abuse its discretion.
Finally, the district court allowed testimony about the logistics and patterns of the
drug trade as lay opinion evidence. We acknowledge that this testimony seems intuitively
closer to something based on "scientific, technical or other specialized knowledge." That
said, the fact that marijuana is commonly grown in the western parts of the country; that
as a result product typically moves from west to east along the nation's roadways; and
that perhaps criminal traffickers would devise strategies to avoid encounters with law
enforcement do not strike us as especially technical or specialized. This testimony
certainly is not so obviously outside the scope of lay opinion evidence that the district
court abused its discretion in allowing it.
When these claims arise on appeal, an appellate court is bound by an abuse of
discretion standard of review. We emphasize that our holding today cannot be read to
endorse every form of law enforcement testimony as lay opinion testimony. A careful
12
case-by-case review must be made of any evidentiary question that comes before a
district court—and this is perhaps especially true in this area of the law. After such a
review here, we hold the district court did not abuse its discretion by admitting Lt.
Ricard's testimony as lay opinion testimony.
The Permissive Inference Instruction Was Not Reversible Error
The trial court instructed the jury—using PIK Crim. 4th 57.022—that it could
"infer that the defendant had the intent to distribute marijuana, if the defendant possessed
more than 450 grams of marijuana." Crudo asserts this instruction violated his
constitutional right to a jury trial and his due process rights, because the permissive
inference relieved the jury of its duty to find each necessary fact beyond a reasonable
doubt. He argues that PIK Crim. 4th 57.022 creates a mandatory presumption which
reduced the State's burden of proof to show an intent to distribute. We disagree.
We have recently resolved Crudo's precise claims. See State v. Holder, 314 Kan.
799, 801-02, 502 P.3d 1039 (2022); State v. Strong, 317 Kan. 197, 202, 527 P.3d 548
(2023); State v. Slusser, 317 Kan. 174, 182, 527 P.3d 565 (2023); State v. Martinez, 317
Kan. 151, 162-63, 527 P.3d 531 (2023); State v. Bentley, 317 Kan. 222, 246-47, 526 P.3d
1060 (2023). In these decisions, this court has held that PIK Crim. 4th 57.022 is a
permissive inference instruction that does not accurately reflect applicable law. We have
held that because K.S.A. 2022 Supp. 21-5705(e) actually creates a rebuttable
presumption rather than a permissive inference, it is error to give the PIK Crim. 4th
57.022 instruction.
Therefore, we can easily conclude that the permissive instruction in this case was
likewise error. And because Crudo has properly preserved his objection to the use of PIK
Crim. 4th 57.022, we apply the constitutional harmless error standard. See State v.
Kleypas, 305 Kan. 224, 257, 382 P.3d 373 (2016) (The constitutional harmless error
13
standard is defined in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed.
2d 705 [1967], under which standard, appellate courts "must be convinced beyond a
reasonable doubt that the error complained of did not affect the outcome of the trial in
light of the entire record—that is, that there is no reasonable possibility the error affected
the jury's verdict of guilt.").
Again, our recent decisions guide us to the conclusion that the use of the
permissive inference instruction was harmless in this case. Indeed, it was actually
favorable to Crudo when compared to the rebuttable presumption of K.S.A. 2022 Supp.
21-5705(e). Functionally, the given instruction raised the State's burden of proof beyond
what is statutorily required, and the jury still chose to convict Crudo. Because of this,
there can be no reasonable probability the jury would have come to a different verdict
under a lesser standard.
And finally, as in Holder, Crudo cannot mount a constitutional challenge to
K.S.A. 2022 Supp. 21-5705(e) because his due process rights were never impacted by the
statute. The erroneous permissive inference instruction relieved any potential due process
problem with the statute. Indeed, we acknowledge this is the whole point behind the PIK
Committee's decision to craft a permissive inference instruction in the first instance.
Because a rebuttable presumption was never actually applied to Crudo at trial, he suffered
no injury and lacks standing to challenge the statute. See Holder, 314 Kan. at 807-08.
Crudo's Conviction for Possession with the Intent to Distribute Did Not Violate Double
Jeopardy
Next, Crudo argues that double jeopardy principles apply such that his conviction
for simple possession at his first trial bars a second prosecution for possession with the
intent to distribute. His logic is that at the first trial, the charge of simple possession was a
lesser included offense of possession with intent to distribute. And that the jury's decision
14
to convict him of the lesser included crime functioned as an acquittal of the greater crime
of distribution. And that following such a circumstance, the State cannot retry someone
for a greater crime of which they have been functionally acquitted.
All of this would be true if the simple possession charge was in fact a lesser
included charge of the distribution charge. But the fact that these two charges can, in fact,
be charged as greater and lesser crimes does not mean that in this case, they were. To
answer that question, we must engage in a multiplicity analysis. Questions involving
multiplicity are questions of law subject to unlimited appellate review. State v. Eckert,
317 Kan. 21, 25, 522 P.3d 796 (2023); State v. Schoonover, 281 Kan. 453, 462, 133 P.3d
48 (2006). Similarly, whether a case presents a "multiple acts" issue is a question of law
over which this court has unlimited review. 281 Kan. at 506.
"[M]ultiplicity is the charging of a single offense in several counts of a complaint
or information." State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2009); Schoonover,
281 Kan. at 475. "The principal danger of multiplicity is that it creates the potential for
multiple punishments for a single offense, which is prohibited by the Double Jeopardy
Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights." Thompson, 287 Kan. at 244.
Double jeopardy can arise in three ways: a second prosecution for the same
offense after acquittal; a second prosecution for the same offense after a conviction; and
multiple punishments for the same offense. Schoonover, 281 Kan. at 463. In determining
whether a situation presents a double jeopardy issue, the overarching inquiry is whether
the convictions are for the same offense. 281 Kan. at 496. To answer this, we must ask
whether the convictions arise from the same, or unitary, conduct. 281 Kan. at 496.
15
"[S]ome factors to be considered in determining if conduct is unitary, in other words if it
is the 'same conduct,' include: (1) whether the acts occur at or near the same time;
(2) whether the acts occur at the same location; (3) whether there is a causal relationship
between the acts, in particular whether there was an intervening event; and (4) whether
there is a fresh impulse motivating some of the conduct." 281 Kan. at 497.
Thus, as mentioned, just because simple possession can be a lesser included
offense does not always require such a finding if charges for both possession and
distribution are based on separate acts. The critical legal question in this case appears to
be whether there was a "fresh impulse" motivating some of the conduct. 281 Kan. at 497.
The Court of Appeals held there was a distinctly different motive and impulse behind
possessing the small amounts of marijuana found under the stairs in the camper and in the
pickup (on the one hand) and the 19 individually wrapped single pound bags (on the
other). Crudo, 62 Kan. App. 2d at 492. This conclusion was supported by sufficient
evidence at trial. Lt. Ricard testified as much, and the physical evidence supported such
inferences. Crudo's convictions are not multiplicitous and do not raise double jeopardy
concerns because each conviction stemmed from separate conduct and distinct evidence.
Cumulative Error Does Not Apply
A single error cannot support reversal by invoking the cumulative error doctrine.
State v. Ballou, 310 Kan. 591, 617, 448 P.3d 479 (2019). The use of PIK Crim. 4th
57.022 is the only error we found. Cumulative error, by definition, does not apply.

Outcome: Judgment of the Court of Appeals affirming the district court is affirmed.
Judgment of the district court is affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: