1

NOT DESIGNATED FOR PUBLICATION

No. 123,189

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JERRY W. CAMPBELL,

Appellant.

MEMORANDUM OPINION

Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed March 11, 2022. 

Affirmed in part, reversed in part, and remanded with directions.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Jon Simpson, assistant district attorney, Suzanne Valdez, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before POWELL, P.J., SCHROEDER, J., and JAMES L. BURGESS, S.J.

PER CURIAM: The State charged Jerry W. Campbell with several crimes arising 

from an incident that occurred in May 2017. After arresting Campbell for an outstanding 

warrant, police searched him and found (1) an empty gun holster on his waist, (2) a 

repurposed paperclip with black residue on the end, (3) a Ziploc baggy full of loose 

change, and (4) three counterfeit bills in his wallet. An officer also smelled the odor of 

burnt marijuana on Campbell's person—both while Campbell sat in the car and after he 

exited the vehicle. After a search of Campbell's vehicle, various items related to 

methamphetamine, drug paraphernalia, and drug distribution were found. Campbell 
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moved to suppress the items found in the vehicle, citing the officer's lack of probable 

cause. After a suppression hearing, the district court denied the motion. Campbell later 

waived his right to a jury trial and informed the district court he wished to proceed with a 

bench trial on stipulated facts. The parties could not agree to the stipulated facts, so the 

district court proceeded with a bench trial on presented evidence. The district court found 

Campbell guilty of possession of methamphetamine with intent to distribute, two counts 

of felony possession of drug paraphernalia, one count of misdemeanor possession of drug 

paraphernalia, and forgery. Campbell appeals, arguing (1) the district court erred in 

denying his motion to suppress; (2) the district court erred in finding he knowingly and 

voluntarily waived his right to a jury trial; and (3) the State presented insufficient 

evidence to convict him of forgery. The district court's ruling on the suppression motion 

is affirmed. The district court's finding that Campbell waived his right to a jury trial is

reversed, and the case is remanded for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2018, the State charged Campbell with: (1) one count of possession of 

methamphetamine with the intent to distribute, a severity level 2 drug felony; (2) two 

counts of use or possess with intent to use drug paraphernalia to manufacture, cultivate, 

plant, propagate, harvest, test, analyze or distribute a controlled substance, a level 5 drug 

felony; (3) one count of forgery, a level 8 nonperson felony; (4) two counts of possession 

of any firearm while addicted and using a controlled substance, a Class B select 

misdemeanor; and (5) one count of use or possess with intent to use drug paraphernalia to 

store, contain, conceal, inject, ingest, inhale, or otherwise introduce a controlled 

substance into the human body, a Class A nonperson misdemeanor. 

After a preliminary hearing, Campbell was bound over for all seven charges.

Campbell pleaded not guilty and asked the district court to set the matter for trial. In 
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November 2018, Campbell moved to suppress evidence found in his vehicle after his 

arrest. The State filed a written response. 

At the motion for suppression hearing, Officer Matthew Roberts of the Lawrence 

Police Department testified that he arrested Campbell for an outstanding warrant and for 

driving on a suspended license. While talking to Campbell, who remained in the driver's 

seat of the car, Roberts smelled burnt marijuana. He could still smell it after Campbell 

exited the vehicle. He also made note of Campbell's hat depicting a marijuana leaf. 

Roberts searched Campbell's person and found (1) an empty gun holster on Campbell's 

waist, (2) a wire paperclip with burnt residue on the end of it that appeared to Roberts to 

be a marijuana pipe cleaning tool, (3) fake currency in Campbell's wallet found on his 

person, and (4) a little plastic baggy holding loose change that Roberts associated with 

drug distribution. Roberts testified he searched the vehicle because of the counterfeit 

money and "the smell of burnt marijuana coming from [Campbell] and/or the car." He 

stated he was looking for evidence relating to marijuana or paraphernalia, a firearm to 

accompany the empty holster, and evidence relating to equipment for making counterfeit 

money. When pressed later by Campbell's attorney, Officer Roberts testified he smelled 

the burnt marijuana smell when Campbell was in the car but that he searched the vehicle 

because of the burnt marijuana smell on Campbell's person. 

During the suppression hearing, the State requested the district court incorporate 

Officer Roberts' previous testimony in a preliminary hearing, which the district court 

granted. In the preliminary hearing, Roberts testified he smelled "burnt marijuana 

emitting from the vehicle—and/or [Campbell]." After he searched Campbell incident to 

his arrest, Roberts searched the vehicle. He testified he searched Campbell's car in 

response to smelling the burnt marijuana. 

The district court denied the motion to suppress, finding that the burnt marijuana 

smell, the wire paper clip with black residue, the baggy often used in drug distribution, 
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and the fake currency found in Campbell's wallet were enough to establish probable 

cause to search his vehicle. The district court found these items gave the officer probable 

cause to search for evidence of crimes related to possession of marijuana, possession of 

drug paraphernalia, and the distribution of counterfeit money. The district court rejected 

the State's argument that the empty gun holster on Campbell's person gave the officer 

probable cause to search specifically under K.S.A. 2020 Supp. 21-6301(a)(10), which 

makes it illegal for a person who is addicted to, and an unlawful user of, a controlled 

substance to possess a firearm. 

In January 2019, Campbell waived his right to a jury trial and informed the district 

court he wanted a bench trial on stipulated facts. When he waived this right, Campbell 

had a draft of the State's proposed list of stipulated facts. And although Campbell had "at 

least one disagreement" with the State, "the fact of the matter is [Campbell wanted] to go 

ahead [with] a trial on stipulated facts with an open sentencing." The district court 

addressed Campbell directly:

"THE COURT: All right. All right. Now, Mr. Campbell your attorney says you're

going to waive your right to a jury trial and have this tried on stipulated facts. Is that what 

you want to do?

"DEFENDANT CAMPBELL: Yes, ma'am.

"THE COURT: You know you have the right to have a trial to a jury.

"DEFENDANT CAMPBELL: Yes, Your Honor.

"THE COURT: And have you had sufficient time to consider your decision and 

to discuss it with Mr. Crawford?

"DEFENDANT CAMPBELL: I believe by the time we get to trial we will.

"THE COURT: And, Ms. Kemple, since this is a felony the State also has to 

agree. Does the State waive the jury trial?

"MS. KEMPLE: Yes, Judge."

Campbell and the State could never agree on a list of facts. The district court scheduled a 

bench trial for March 12th, 2019. 
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Before beginning the bench trial, the district court revisited Campbell's right to 

have a jury trial. The following colloquy took place:

"THE COURT: We're here for a Court trial. And I want to just ask this question

one more time, Mr. Campbell. You know you have the right to have a trial to a jury. Does

he not?

"MS. KEMPLE: He waived his right to a jury trial, Judge.

"THE COURT: I know. I want to do it again. I just want to be sure. Before we 

start a Court trial, you know you have that right.

"THE DEFENDANT: Even still today, Your Honor, like, I could choose to do a 

jury trial?

"THE COURT: No. I want to go back to what you did before—

"THE DEFENDANT: Yes, I understand.

"THE COURT: You know you waived that. I should have phrased, 'You know 

you waived that, right?'

"THE DEFENDANT: Yes, ma'am."

Thereafter, the case proceeded to a bench trial without stipulated facts.

At trial, Officer Roberts testified he was on patrol in May 2017, but in a stationary 

position on the 1800 block of East 19th Street in Lawrence at 8:10 p.m. He saw a bluish 

Ford Focus traveling west on 19th Street. From previous knowledge about this address 

and vehicle, Officer Roberts suspected Campbell was leaving the address and driving the 

vehicle. At the time, Officer Roberts knew the State had suspended Campbell's driver's 

license and that the City of Lawrence had issued a warrant for his arrest. 

Officer Roberts followed the vehicle to 2220 Harper, where it parked in a parking 

lot near a convenience store. After parking his patrol vehicle roughly 25 to 30 feet away, 

he approached the vehicle. While he approached, the passenger of the vehicle exited the 

vehicle and walked over and sat on a curb. Roberts spoke to the driver, who he 
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recognized to be Campbell. Roberts asked Campbell if he had any weapons in the 

vehicle, to which Campbell replied that he had knives on him. Roberts asked Campbell 

who the backpacks in the backseat belonged to, and Campbell replied one was his and 

one was the passenger's. 

Several other officers arrived on scene after Officer Roberts radioed for assistance. 

While he spoke with Campbell, who was still in the driver's seat, Roberts noted the smell 

of burnt marijuana through the open window. He asked Campbell to step out of the 

vehicle and then arrested him. Roberts also noted Campbell's hat had a marijuana leaf on 

the front, which he considered significant because of the burnt marijuana smell. While 

searching Campbell's person, Roberts found two counterfeit $20 bills in Campbell's 

wallet. Roberts believed the money to be counterfeit because the paper did not have the 

security strip going through it, the watermark was different, and the "feel" of the money 

was not right. He also said the one counterfeit bill had gotten wet at some point, which 

caused the ink to fade. Roberts also found a counterfeit $100 bill in the wallet that

appeared to be peeling apart, did not have the security mark, and was of an odd texture 

and feel. 

In one of Campbell's jeans pockets, Officer Roberts found a small plastic Ziploc 

baggy with loose change. While placing him in the patrol car, Roberts noticed Campbell 

was wearing a pendant and key on a necklace hanging around his neck. Roberts also 

noticed Campbell had an empty firearm holster on his waistband. When Roberts asked 

about the holster, Campbell replied that he left the firearm at home. 

After placing Campbell in the patrol vehicle, Officer Roberts searched the vehicle 

for evidence related to the burnt marijuana smell and counterfeit money. Roberts found 

nothing of interest in the passenger's backpack. 
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In the front center console and underneath a stocking cap, Officer Roberts found a 

small, zippered black and red container which held two plastic baggies with yellow 

biohazard logos containing a white, crystalline substance. He also found a glass pipe with 

white residue inside the case. Based on his training and experience, Roberts believed this 

to be a pipe used to smoke methamphetamine. 

Officer Roberts found a black and silver .380 Hi Point pistol in the passenger rear 

map pocket. The firearm had ammunition in the magazine, as well as a round in the 

chamber. In the backseat behind the driver's seat, officers found a black backpack. Inside 

the bag, Officer Roberts found a single shot Comanche .45 Long Colt pistol with a round 

in the chamber. Inside one side pocket, officers located two medium sized Ziploc 

baggies: one containing 88 smaller, empty Ziploc baggies; the other containing 44 

smaller, empty Ziploc baggies. In the other side pocket, Roberts found several 

prescription bottles prescribed to Campbell. 

Officer Roberts also found a large, purple Crown Royal bag around a locked black 

box in the backpack. Remembering the key and pendant necklace he noticed on Campbell 

earlier, Roberts returned to Campbell to retrieve the key. Roberts discovered the necklace 

was no longer around Campbell's neck. Roberts temporarily removed Campbell from the 

patrol car and found the key in Campbell's pocket, which he used to open the locked box. 

Inside the box, Officer Roberts located a black zippered case, a blue Tupperware 

container, and a red bandana. The blue Tupperware container contained six baggies of 

white, crystalline substance and a notepad containing various inscriptions. In the black 

zippered case, Roberts found two measuring scoops, plastic baggies, and a digital scale. 

Roberts testified all the items in the zippered case had white residue on them. He later 

testified the number of empty baggies in the zippered black case to be 82. 
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Officer Roberts then testified he believed the notebook he found contained various 

narcotics-related ledgers. He testified he recognized some of the names written in the 

notebook as methamphetamine users and that someone had written dollar amounts as 

well next to the names. He also discussed the various slang terms for common 

measurements and types of narcotics.

Officer Roberts entered the items found into evidence and sent the crystalline 

substances to Kansas Bureau of Investigation (KBI) for chemical sample testing. After 

Roberts took Campbell to the law enforcement center, he read Campbell his Miranda

warnings, which Campbell waived. Campbell spoke with Roberts, and during that 

interview Roberts asked Campbell whether he smoked any weed, to which Campbell 

replied, "'Mm-hmm. I always smoke weed. Oh, yeah, man, that's like my cologne.'"

Somiyeh Zalekian testified for the State as the forensic scientist with the KBI, who 

tested the 15 bags of white, crystalline substances. Zalekian testified that all 15 bags 

tested positive for methamphetamine and the total weight of all of the methamphetamine 

substance was 41.62 grams. 

Lawrence Police Officer Kristen Kennedy testified to (1) the type and purpose of 

various drug paraphernalia, (2) how an item is used to ingest or distribute narcotics, (3) 

the typical amount of single-use methamphetamine, and (4) various drug-related slang. 

Kennedy sent the two firearms found in Campbell's car to the KBI for DNA testing once 

she obtained a search warrant to collect a known DNA sample from Campbell. 

The State presented testimony from Lance Antle, a forensic biologist with the 

KBI, who tested the known DNA sample from Campbell against the firearms. Antle 

testified he found three separate DNA samples on the Hi Point pistol and that Campbell's 

DNA could not be excluded as a possible donor.
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The district court found Campbell guilty of (1) possession of methamphetamine 

with intent to distribute, a level 2 drug felony; (2) possession of drug paraphernalia to 

manufacture, cultivate, plant, harvest, test, analyze or distribute a controlled substance, a 

severity level 5 drug felony; (3) possession of drug paraphernalia to store, contain, 

conceal, inject, ingest, inhale, or otherwise introduce a controlled substance into the 

human body, a level 5 drug felony; (4) forgery, possession with intent to issue or 

distribute a falsely made, altered, or endorsed written instrument and intent to defraud, a 

level 8 nondrug felony, and (5) possession of drug paraphernalia to store, contain, 

conceal, inject, ingest, inhale, or otherwise introduce a controlled substance into the 

human body, a Class A misdemeanor. 

The district court sentenced Campbell to (1) a controlling 111 months of

imprisonment with 36 months of postrelease for possession of methamphetamine with 

intent to distribute; (2) 11 months of imprisonment with 12 months of postrelease for 

felony possession of drug paraphernalia, to run concurrent with the controlling count; (3)

11 months of imprisonment with 12 months of postrelease supervision for felony 

possession of drug paraphernalia, to run concurrent with the controlling count; (4) 8 

months of imprisonment with 12 months of postrelease supervision for forgery, to run 

concurrent with the controlling count; and (5) 8 months of imprisonment for 

misdemeanor possession of drug paraphernalia, to run concurrent with the controlling 

count. 

Campbell timely appeals. 
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ANALYSIS

I. Did the district court err in denying Campbell's motion to suppress?

Standard of Review and Preservation

The standard of review for a district court's decision on a motion to suppress has 

two components. The appellate court reviews the district court's factual findings to 

determine whether they are supported by substantial competent evidence. The ultimate 

legal conclusion, however, is reviewed using a de novo standard. In reviewing the factual 

findings, the appellate court does not reweigh the evidence or assess the credibility of 

witnesses. State v. Hanke, 307 Kan. 823, 827, 415 P.3d 966 (2018).

When the material facts supporting a district court's decision on a motion to 

suppress are not in dispute, the ultimate question of whether to suppress is a question of 

law over which this court has unlimited review. 307 Kan. at 827. The burden rests with 

the State to prove the lawfulness of the warrantless search and seizure. 307 Kan. at 827.

Generally, when the district court has denied a motion to suppress, the moving 

party must still object to the introduction of that evidence when offered at trial to 

preserve the issue for appeal. State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862 (2016). 

Because Campbell lodged a continuing objection to all evidence or testimony related to 

Officer Roberts' search of his car, Campbell preserved this issue for appeal. 

Applicable Law

Under the Fourth Amendment of the United States Constitution and section 15 of 

the Kansas Constitution Bill of Rights, warrantless searches and seizures are per se 

unreasonable. U.S. Const. amend. IV; Kan. Const. Bill of Rights, § 15. For a search to be 
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reasonable, the officer must first have a warrant. State v. Fewell, 37 Kan. App. 2d 283, 

285, 152 P.3d 1249 (2007). Therefore, the State must establish an exception to the 

warrant requirement to introduce evidence obtained as a result of that search against the 

accused. State v. Hubbard, 309 Kan. 22, 32, 430 P.3d 956 (2018).

Kansas recognizes several exceptions to the Fourth Amendment search warrant 

requirement. One such exception is the "search incident to lawful arrest" exception. State 

v. Knight, 55 Kan. App. 2d 642, 646, 419 P.3d 637 (2018). Another is "probable cause 

plus exigent circumstances." 55 Kan. App. 2d at 646. A subcategory of the latter is the 

"automobile exception." 55 Kan. App. 2d at 646. This exception was first recognized in 

Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). The mobility 

of the vehicle provides the exigent circumstance. Maryland v. Dyson, 527 U.S. 465, 466-

67, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999). This is because an individual's expectation 

of privacy regarding the vehicle is significantly less than the privacy expectation relating 

to one's home. State v. Conn, 278 Kan. 387, 395, 99 P.3d 1108 (2004). Even if the driver 

and passengers are removed from the vehicle at the time of the search, the vehicle is still 

considered "mobile" for purposes of this exception. See Pennsylvania v. Labron, 518 

U.S. 938, 940-41, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996). With exigency established 

by the automobile exception, this court need only determine whether Officer Roberts had 

probable cause to search Campbell's car. See Knight, 55 Kan. App. 2d at 647.

This court reviews probable cause determination by considering the totality of the 

circumstances, which includes the facts and circumstances within the officer's knowledge

based on reasonably trustworthy information, any fair inferences and other relevant facts, 

whether or not admissible on the issue of guilt. Hubbard, 309 Kan. at 35. For automobile 

searches, probable cause can be established if the totality of the circumstances indicated 

there was a fair probability that the vehicle to be searched contained contraband or 

evidence of a crime. 309 Kan. at 35.
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Kansas appellate courts do not review motion to suppress issues on appeal under a 

divide-and-conquer analysis because the very nature of a "totality of circumstances"

standard precludes that method of review. State v. Ramirez, 278 Kan. 402, 407-08, 100 

P.3d 94 (2004). The court may not consider "each suspicious factor in isolation and [ask] 

whether there was an innocent explanation for the activity." 278 Kan. at 406-07. 

Although the evidence of an odor of marijuana is substantial, the court's analysis relies on 

all knowledge and observations of the officer at the time of the search.

The Kansas Supreme Court has held that "[n]ot all cases relying on odor will have 

the same result." Hubbard, 309 Kan. at 41. The reviewing court must look to the totality 

of the circumstances surrounding, and in addition to, the odor. See State v. Ibarra, 282 

Kan. 530, 552-53, 147 P.3d 842 (2006) (holding that the odor of ether alone was 

insufficient to establish probable cause to search). The Kansas Supreme Court has held 

that the odor of marijuana coming from a vehicle, when detected by an experienced lawenforcement officer, can provide probable cause to search the passenger compartment of 

that vehicle. State v. MacDonald, 253 Kan. 320, 325, 856 P.2d 116 (1993); see also State 

v. Delgado, 36 Kan. App. 2d 653, 658-59, 143 P.3d 681 (2006) (finding that officer's 

detection of odor of marijuana coming from vehicle by itself provided probable cause to 

search passenger compartment); State v. Dixon, No. 98,881, 2008 WL 1847882, (Kan. 

App. 2008) (unpublished opinion) (reversing district court's order suppressing evidence 

and finding that experienced officer's detection of odor of raw marijuana coming from car 

was sufficient basis for probable cause to search vehicle). Fewell also underscored the 

importance of the officer's training and experience in recognizing the odor of marijuana. 

See 286 Kan. at 383.

Kansas caselaw suggests an officer may have probable cause to search after 

smelling either raw or burnt marijuana. In State v. Kirk, 40 Kan. App. 2d 817, 196 P.3d 

407 (2008), an officer detected the smell of marijuana coming from a vehicle he had 

stopped for a traffic infraction. The Kirk panel held that, although it was unclear whether 
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it was raw or burnt marijuana, the district court had substantial evidence that the officer,

who was trained in identifying the odor of marijuana, had smelled marijuana coming 

from the vehicle and therefore had probable cause to search the vehicle. 40 Kan. App. 2d 

at 820. In State v. Goff, 44 Kan. App. 2d 536, 239 P.3d 467 (2010), an officer detected 

the smell of raw marijuana while conducting a traffic stop. The Goff panel held that, 

without reweighing the evidence and credibility, the officer's testimony that he had 

smelled raw marijuana while conducting the traffic stop was sufficient proof that the 

officer had probable cause to search the vehicle. 44 Kan. App. 2d at 541.

Application

Campbell argues the district court erred in denying his motion to suppress because 

neither the items found on his person during the officer's search nor the burnt marijuana 

smell established probable cause. Campbell's brief on appeal begins by analyzing each 

factor the officer relied on individually. He then summarizes these analyses by arguing 

that, even altogether, the factors did not amount to probable cause to search. Campbell 

does not challenge the officer's experience in detecting marijuana odors. His argument 

centers on the fact that Officer Roberts testified he smelled the odor "on Mr. Campbell."

The State argued the district court properly dismissed Campbell's motion to 

suppress because the factors, under the totality of the circumstances, established probable 

cause for the search. The State chided Campbell for singling out each factor in his 

analysis, but then performed a similar individual analysis in its own brief. At any rate, the 

State maintains (1) the various items found, (2) the burnt marijuana smell, (3) the 

"conspicuously covered [] waistband [of a] gun holster," (4) the fact that Campbell's 

passenger was a "KDOC parolee," and (5) the "hat bearing 'a marijuana leaf'" was 

sufficient to establish probable cause to search. The State also argues the absence of 

paraphernalia or drugs on Campbell's person during the search incident to arrest, as it 

relates to a burnt marijuana smell, added to the totality of the circumstances. 
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In his reply brief, Campbell argues this court's review must be limited to the 

factual findings the district court actually relied on and must not consider findings the 

district court did not make. He maintains the four facts the district court relied on did not 

amount to probable cause, either individually or collectively. 

To begin, the State had the burden to prove the lawfulness of the search in the 

motion to suppress hearing. Hanke, 307 Kan. at 827. On appeal, the State makes several 

statements supporting its argument that the officer had probable cause to search. 

Although the State cited the record to support its argument, the citations do not 

necessarily support the State's assertions. For example, although the State alleges the 

officer "knew Campbell's company, Scott Atkins, was a KDOC parolee," the State's

evidence fails to clarify when Officer Roberts knew Atkins to be a parolee. The State's 

question was, "And at some point were you aware if Mr. A[t]kins was on KDOC parole?"

The record does not support the notion that Roberts knew Atkins was a KDOC parolee at 

the time he approached Campbell. More importantly, the State does not explain why this 

fact is significant to the probable cause analysis. Caselaw suggests this fact does not 

matter. See Fewell, 286 Kan. 370, Syl. ¶ 5 ("A person's mere propinquity to others 

independently suspected of criminal activity does not, without more, give rise to probable 

cause to search that person.").

Additionally, the State cited the bench trial transcript with "see also" cites to 

support several arguments or argumentative statements. This court's review of a district 

court's ruling on a motion to suppress is generally based solely on the evidence presented 

at the suppression hearing. See Knight, 55 Kan. App. 2d 642, Syl. ¶ 1.

We also decline to consider the State's argument that the absence of evidence of a 

crime on an arrestee's person should be considered in the totality of the circumstances 

analysis. Essentially the State argues that the absence of evidence of a crime on an 
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individual's person helps establish probable cause for an officer to search for evidence of 

a crime elsewhere. Not only did the State not argue this lack of evidence circumstance to

the district court, but this argument is counterintuitive to the purpose of a "totality of 

circumstances" analysis and the safeguards of the Fourth Amendment. An officer cannot 

further search for evidence upon the failure to discover evidence in the first instance. See 

Knight, 55 Kan. App. 2d at 646-48. Although the officer also testified to smelling burnt 

marijuana, the State's "lack of evidence" argument will not be considered.

Campbell did not argue to the district court, and does not argue on appeal, that 

Officer Roberts executed an unlawful search incident to arrest. Issues not raised to the 

district court or on appeal are deemed waived and abandoned. See State v. Kelly, 298 

Kan. 965, 971, 318 P.3d 987 (2014). And because Campbell had at least one outstanding 

arrest warrant as well as a suspended driver's license, the arrest itself was lawful. As a 

result, the search of Campbell's person was incident to a lawful arrest. See State v. 

Wissing, 52 Kan. App. 2d 918, 922, 379 P.3d 413 (2016).

Campbell does argue Officer Roberts did not have probable cause to search for 

either raw marijuana or drug paraphernalia because he testified to only smelling burnt 

marijuana on Campbell's person and not specifically in Campbell's car. This is a 

meaningless distinction.

The district court allowed the State to incorporate Officer Roberts' testimony from 

the preliminary hearing into the suppression hearing, so the district court likely relied on 

both to make its decision. In the preliminary hearing, Roberts testified, "I smelled what 

appeared to be burnt marijuana emitting from the vehicle—and/or [Campbell]. I couldn't 

tell." Roberts testified that his response to smelling the marijuana was to search 

Campbell's vehicle. On cross-examination, Roberts confirmed he smelled the marijuana 

odor upon contact when Campbell was still seated in the vehicle. Roberts gave similar 

testimony in the suppression hearing, testifying he smelled the odor of burnt marijuana 
16

coming from Campbell's "person" and that he first smelled it while Campbell was in the 

vehicle. He testified he was familiar with the odor of burnt marijuana because of his 

training and experience. Although Roberts testified Campbell's hat with a marijuana leaf 

on it was significant to him, it is unclear whether the district court relied on this 

testimony to make its decision. 

But the distinction that Campbell asks this court to make does not naturally flow 

from the approach Kansas courts have applied in marijuana odor situations. Because an 

officer may rely on reasonably reliable information in making a probable cause 

determination, this court should consider the facts known to Officer Roberts at the time. 

See Hubbard, 309 Kan. at 35. Roberts witnessed Campbell drive a vehicle to another 

location with a suspended license. He then had contact with Campbell while he was still 

sitting in the driver's seat of that vehicle. At that time Roberts smelled burnt marijuana 

and asked Campbell about weapons. While arresting Campbell for the outstanding arrest 

warrant and driving on a suspended license, Roberts noticed Campbell's hat with a 

marijuana leaf, which was significant to him based on the burnt marijuana odor. While 

searching Campbell incident to his arrest, Roberts found a repurposed paperclip with 

burnt residue on the end in Campbell's pocket—which he knew by training and 

experience is commonly used to clean marijuana-related glass pipes. He also found 

counterfeit currency in Campbell's wallet and an empty gun holster on Campbell's person. 

While it is true that Officer Roberts testified he smelled the marijuana on 

Campbell's body even after removing him from the vehicle, the officer still had enough 

information under the totality of the circumstances to believe there was a fair probability 

that Campbell had recently smoked marijuana and that evidence would be in the vehicle. 

See Fewell, 286 Kan. at 382 ("[T]he fact that [the officer] smelled burnt marijuana, rather 

than fresh marijuana, is particularly telling, in that it indicates that someone inside the 

vehicle had very recently engaged in criminal activity.").
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With the very strong odor of burnt marijuana emanating from the car, it would 

seem to be a logical conclusion that the passengers smoked inside the car. It is very 

reasonable for a person of ordinary caution to suspect that evidence of a crime related to 

marijuana possession would be in the car from which the person smelling like marijuana 

was just removed. Subsequent removal of that person from the car does not then make the 

car unrelated to the detention. See Labron, 518 U.S. at 940-41. Once Officer Roberts 

smelled the odor of burnt marijuana on Campbell, there existed a fair probability that the 

car contained contraband or evidence of a crime. See Hubbard, 309 Kan. at 35.

Campbell did not challenge Officer Roberts' training and experience in drug 

seizures and detecting the odor of marijuana, either burnt or raw, in the district court. See 

Fewell, 286 Kan. at 383. Nor did he raise it on appeal. This court considers arguments not 

raised on appeal waived and abandoned. See State v. Williams, 298 Kan. 1075, 1085-86, 

319 P.3d 528 (2014). Review of the transcript suggests Roberts' training and experience 

as a law enforcement officer rendered him sufficiently able to recognize the odor. 

Although the burnt marijuana smell alone is sufficient to establish probable cause, 

a review of the totality of the circumstances further supports the finding of probable 

cause.

Based on the State's evidence, the district court found Officer Roberts had 

probable cause to search for evidence relating to three separate crimes: (1) possession of 

marijuana, (2) possession of drug paraphernalia, and (3) counterfeit money. The district 

court relied on the plastic Ziploc baggy, though it was holding Campbell's loose change 

at the time, as a fact contributing to Roberts' probable cause analysis. Because the baggy

was being used for a seemingly innocent, and definitely lawful purpose, the district court 

may have improperly relied on it. See State v. Jones, 300 Kan. 630, 648, 333 P.3d 886 

(2014) ("[T]here are a multitude of innocent uses for clear plastic bags and the presence 

of such a bag is not suspicious, at least by itself."). However, this single baggie is not 
18

considered in isolation, and the totality of the circumstances support a finding of probable 

cause to search the automobile. The district court's decision to deny the motion to

suppress is affirmed.

II. Did the district court err in finding Campbell knowingly and voluntarily waived 

his right to a jury trial?

Preservation

There is no bright-line rule prohibiting criminal defendants from questioning the 

validity of their waiver of the right to a jury trial for the first time on appeal. State v. Rizo, 

304 Kan. 974, 979, 377 P.3d 419 (2016). While Campbell did not object to the district 

court's decision to enforce his previous wavier on the day of trial, this court may review 

the waiver. Kansas appellate courts have considered such a challenge raised for the first 

time on appeal to prevent the denial of a fundamental right. See State v. Frye, 294 Kan. 

364, 370-71, 277 P.3d 1091 (2012). "'[W]hether the court has advised a defendant of his 

or her right to a jury trial . . . should be one of the last [issues] to be denied the 

opportunity for exceptional treatment'" under the preservation rules. State v. Redick, 307 

Kan. 797, 802, 414 P.3d 1207 (2018).

Standard of Review

"'Whether a defendant waived the right to a jury trial is a factual question, subject 

to analysis under a substantial competent evidence standard of review. But when the facts 

of the district court's determination to accept a jury trial waiver are not disputed, the 

question whether the defendant voluntarily and knowingly waived the jury trial right is a 

legal inquiry subject to unlimited appellate review.' [Citation omitted.]" State v. Harris, 

311 Kan. 371, 375, 461 P.3d 48 (2020).
19

Applicable Law

Both the United States Constitution and the Kansas Constitution guarantee a

criminal defendant's right to a jury trial. U.S. Const. amend. VI; Kan. Const. Bill of 

Rights, §§ 5, 10. "There is no more fundamental right in the United States than the right 

to a jury trial." State v. Larraco, 32 Kan. App. 2d 996, 999, 93 P.3d 725 (2004). K.S.A.

22-3403(1) requires that all felony cases be tried to a jury unless the defendant and 

prosecuting attorney, with the consent of the court, submit the matter to a bench trial.

Although the defendant may waive his or her right to a jury trial, this court strictly 

construes a defendant's waiver of that fundamental right to ensure he or she has every 

opportunity to receive a fair and impartial trial by jury. Harris, 311 Kan. at 376. District 

courts cannot accept a waiver unless the defendant, after being advised by the district 

court of his or her right, personally waives the right either in writing or in open court on 

the record. Redick, 307 Kan. at 803. "The choice whether to waive jury trial rests solely 

with the defendant." 307 Kan. at 803.

Caselaw on "conditional waivers" is almost nonexistent in Kansas. A conditional 

waiver has been addressed in the context of waiver of a speedy trial right to the effect that

apparently a waiver can be subject to conditions as long as those conditions are explicitly 

stated. See State v. Shockley, 314 Kan. 46, 55-56, 494 P.3d 832 (2021) ("If the defendant

chooses to waive his speedy trial rights and does not otherwise say so, we must presume 

the waiver is unconditional."). 

A somewhat similar situation seemingly analogous to the present case was 

addressed in State v. Schreiner, No. 99,805, 2009 WL 1911685, at *5 (Kan. App. 2009)

(unpublished opinion). In Schreiner, the State charged Joshua Schreiner with various sex 

offenses, which he agreed to plead no contest to in return for the State's favorable 

sentencing recommendation. At the plea hearing, the district court informed Schreiner 
20

that, by entering his pleas, he was waiving important rights, such as he "'will be waiving

or giving up many of your important constitutional rights including the right to a . . . trial 

by jury if you want one.'" 2009 WL 1911685, at *4. Schreiner answered yes to this and 

various other questions. While the State was giving a factual basis for the plea, Schreiner 

interrupted and withdrew his decision to enter the plea. The district court refused to

accept a plea, and later scheduled a jury trial.

Three days before trial, the district court held a hearing on several pretrial 

motions. During this hearing, the State and Schreiner agreed to proceed by bench trial on 

stipulated facts. While advising the district court of the agreement, the State prosecutor 

stated: "'[Schreiner] waived jury on his amended information. We were prepared to go 

forward on the second amended information in October.'" 2009 WL 1911685, at *2. The 

district court did not again address whether Schreiner understood or waived his right to a 

jury trial. The district court merely described the difference between a trial with witnesses 

and the trial the court was about to proceed with based on stipulated facts. Schreiner 

agreed to the bench trial on stipulated facts.

On appeal, the State argued Schreiner waived his right to a jury trial at the plea 

hearing. Schreiner argued that the waiver was predicated on an unconsummated plea 

agreement, so he did not knowingly waive his right to a jury trial. The Court of Appeals 

agreed. Strictly construing the waiver of his fundamental right in his favor, the panel held 

that Schreiner's waiver could not be reasonably construed as "voluntary," given that the 

plea did not go through. 2009 WL 1911685, at *5. And as such, the waiver did not 

constitute a knowing and voluntary waiver for all future proceedings in the criminal case.

Therefore, because the district court did not re-advise Schreiner on his fundamental right 

when the parties agreed to a bench trial on stipulated facts, the district court committed 

reversible error. 2009 WL 1911685, at *5.
21

Application

Campbell's waiver argument is two-fold. He first argues the district court erred in 

accepting the waiver because it was not fully informed. More specifically, when the 

district court asked him whether he had had enough time to speak with his attorney about 

his waiver decision, Campbell responded with, "'I believe by the time we get to trial we 

will.'" He argues this response should have suggested to the district court that he was 

confused or misunderstood the finality of the waiver. Campbell next argues the district 

court erred by enforcing his waiver on the day of trial because it was conditioned on his 

expectation of having a bench trial on stipulated facts. 

The State argues Campbell clearly understood his rights and that the waiver was 

knowing and voluntary. The State argues in the alternative that Campbell's eventual 

bench trial with presented evidence made the failure to obtain the bench trial by 

stipulated facts "harmless." However, the "deprivation of the right to a jury trial is 

automatically reversible error." City of Wichita v. Bannon, 37 Kan. App. 2d 522, 528, 154 

P.3d 1170 (2007); see State v. Roland, 15 Kan. App. 2d 296, Syl. ¶ 5, 807 P.2d 705 

(1991) ("[T]he right of a criminal defendant to a jury trial is so fundamental that a 

violation of that right cannot be harmless error.").

Couching the issue in terms of Campbell merely not getting the benefit of his 

bargain between the two types of bench trials is unpersuasive and not the true issue at 

hand. Whether or not Campbell knowingly and voluntarily waived his right to jury trial 

does not require analysis of the benefit he received by having the bench trial. Deprivation 

of this fundamental right cannot benefit from hindsight or harmless error. The same goes 

for the State's argument that Campbell's supposed refusal to agree on a set of stipulated 

facts is akin to "invited error."
22

The State also argued Campbell neither modified nor revoked his waiver. The 

State relies on older caselaw to make this argument and recent caselaw discussing 

statutory speedy trial waivers. Finally, the State argues Campbell is to blame for the 

failure to agree on the facts. The State supports this argument with the fact that the 

district court essentially warned Campbell if he could not come to an agreement with the 

State on the list of stipulated facts, the district court would hold a bench trial in which the 

court was the fact-finder. 

In Campbell's reply brief, he insists that denying the accused a jury trial is a 

structural error not subject to either the harmless or invited error analyses. Campbell 

insists his waiver relied on his belief that a future bench trial would be based on 

stipulated facts, a benefit often sought by defendants. 

Campbell fails to cite legal authority to support his argument that the right to a 

jury trial can be conditionally waived. A review of Kansas statutes and caselaw suggests 

Kansas appellate courts have not yet directly answered this question. Schreiner proposes 

somewhat similar circumstances, but it is an unpublished opinion so it is not binding on 

this court. Supreme Court Rule 7.04(g)(2)(B)(i) (2022 Kan. S. Ct. R. at 48)

("[Unpublished opinions may have] persuasive value with respect to a material issue not 

addressed in a published opinion of a Kansas appellate court."). Although the analysis in 

Schreiner appears to be fact specific, it is difficult to distinguish Campbell's scenario 

from that of Schreiner's. See Schreiner, 2009 WL 1911685, at *4-5.

The advantage of having a trial on stipulated facts is for the State and defendant to 

agree on the universe of facts presented to the fact-finder to make a legal decision on 

those facts alone. Campbell likely hoped to benefit from a bench trial on stipulated facts. 

See Schreiner, 2009 WL 1911685, at *1-2. Similar to the favorable sentencing agreement 

in Schreiner, the State agreed to Campbell's waiver and offered Campbell the opportunity 

to stipulate to a factual record. Just before that waiver, Campbell's attorney informed the 
23

district court the State had already presented a drafted document of stipulated facts and 

that although they had one issue with it, Campbell intended to move forward with the 

bench trial based on stipulated facts. This suggests Campbell's waiver was predicated on

his reasonable belief that he and the State could eventually agree to the stipulated facts. In 

fact, the gravamen of his argument is that his "knowing and voluntary" waiver was based 

on his reliance on this belief. The district court's later-in-time warning that the court 

would hold a bench trial with presented evidence is unpersuasive when this court must 

consider whether Campbell's waiver was knowing and voluntary when it was given. See 

Harris, 311 Kan. at 375.

Ultimately, the waiver must be knowing and voluntary, and it is difficult to believe 

a defendant knowingly and voluntarily waived that right in order to benefit from that 

waiver if that benefit never comes. See Schreiner, 2009 WL 1911685, at *4-5. The 

waiver occurred after the State gave him a draft of proposed stipulations. And although 

the parties disagree on the interpretation of statements made by both Campbell and his 

attorney in the status conference transcript, his apparent confusion on the day of the 

bench trial suggests he did not knowingly or voluntarily waive the right. 

Because this court strictly construes Campbell's waiver to afford him every 

opportunity to receive a fair trial, it must be determined that Campbell's waiver was 

conditioned on his reasonable belief that he would receive the benefit of a bench trial on 

stipulated facts. If it was the district court's belief or intention that the waiver was to be 

effective regardless of whether a stipulation of facts was agreed upon, it was incumbent 

on the court to take the time to clarify Campbell's expectations and the court's perception 

of the effect of Campbell's waiver. The ultimate effect of the district court's interpretation 

of Campbell's waiver denied him the opportunity to determine if he wanted a jury trial 

absent a trial on stipulated facts. The "deprivation of the right to a jury trial is 

automatically reversible error." Bannon, 37 Kan. App. 2d at 528. We reverse Campbell's 
24

convictions and remand with instructions to the district court to afford Campbell his 

constitutional right to a trial by jury.

Having determined that this case must be reversed and remanded for a new trial, 

we decline to address the issue of sufficiency of the evidence as to the conviction relating 

to the alleged counterfeit money.

Affirmed in part, reversed in part, and remanded with directions.