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NOT DESIGNATED FOR PUBLICATION

No. 125,283

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

GINA L. WILSON,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Submitted without oral argument. 

Opinion filed December 29, 2023. Affirmed.

Grace E. Tran, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, 

attorney general, for appellee.

Before WARNER, P.J., GARDNER and HURST,JJ.

WARNER, J.: Gina Wilson appeals her conviction for illegal possession of an 

opiate. She argues the district court should have granted her motion to suppress evidence 

of oxycodone pills found in her car during a traffic stop, arguing police officers only 

found that evidence after they impermissibly extended the scope and duration of the stop.

She also asserts the State failed to prove that oxycodone is an opiate under K.S.A. 2019 

Supp. 21-5706(a). We are not persuaded by these arguments and thus affirm Wilson's 

conviction. 
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FACTUAL AND PROCEDURAL BACKGROUND

In March 2022, a jury convicted Wilson of possession of an opiate under K.S.A. 

2019 Supp. 21-5706(a) and driving while suspended, her second or subsequent 

conviction. (She does not challenge the suspended-driving conviction on appeal.) The 

events giving rise to Wilson's convictions took place on November 19, 2020, when she 

was pulled over by Wichita police officers while driving in Sedgwick County. During the 

course of the stop, the officers found an envelope of oxycodone capsules in Wilson's car, 

leading to her drug-possession conviction.

The stop

Before trial, Wilson moved to suppress all evidence relating to the oxycodone, 

claiming that the evidence arose from a violation of the United States Constitution's 

prohibition of unreasonable searches and seizures. The district court held a hearing on 

that claim, and the testimony presented there forms the basis for the following narrative.

The Wichita police had previously received information that made them believe 

that a person named Rita was selling crack cocaine from a residence in Wichita. Police 

officers had begun watching the house in September 2020 and observed patterns they 

believed signaled drug trafficking (such as cars pulling up and leaving within three to five 

minutes). The day before Wilson was stopped, officers pulled trash from the home, 

finding torn baggies with what they believed to be drug residue on them.

On the day of Wilson's traffic stop, two officers—Officer Donald Bailey and 

Officer Shawn Isham—were observing the suspected drug house. Around 4:30 p.m., they 

saw a car pull into the driveway. A woman later identified as Wilson exited the car and 

entered the house, reappearing within three to five minutes. The car then drove away.
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The officers followed the car and saw it commit two traffic infractions—failing to 

signal a turn and failing to signal a turn within 100 feet. The officer who was driving 

activated his emergency lights, and the car immediately pulled over, stopping in front of a 

house on Greenfield Street. The officers approached the car (at 4:36 p.m.) and observed 

that Wilson was its the sole occupant.

The officers and Wilson discussed what had happened. Wilson was adamant that 

she had properly signaled but admitted she did not have a valid license. She explained 

that she had been thinking about renting a property on Greenfield Street—in fact, the 

very property she happened to have been stopped in front of—and had stopped at her 

friend Rita's house to ask for directions. The officers found it suspicious that Wilson 

claimed to be pulled over right in front of her prospective rental home immediately after 

being at the suspected drug house and speaking with Rita.

After this initial contact, the officers returned to the patrol car. Officer Bailey 

confirmed Wilson's suspended license and identity. He also conducted a search of her

criminal history, showing she had a few arrests for possession of narcotics. The officers 

called a K-9 unit—consisting of an officer-handler and dog, Oden—to the scene (at 4:42 

p.m.). Officer Bailey indicated that this was "right about the time" one of his systems 

indicated Wilson had a suspended driver's license and "probably right before [he] got 

onto SPIDER to confirm the [suspended license] and to check to see if she had any other 

warrants."

At this point, the officers had reason to believe that Wilson had committed at least 

one crime—driving with a suspended license. Officer Isham got out of the patrol car and 

asked Wilson to step out of her vehicle. Officer Bailey waited for information from 

SPIDER and began filling out the citation. 
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The K-9 unit arrived at 4:51 p.m., nine minutes after it was called. Officer Bailey 

testified that he completed the citation "a little bit after the K-9 arrived." The K-9 unit 

waited for about 40 seconds for him to complete the citation. When Officer Bailey 

finished the citation, he stepped out of his patrol car to join the K-9 unit. Four minutes 

later, at 4:55 p.m., the dog indicated that there were drugs in the car. The officers then 

searched Wilson's vehicle, finding 30 white capsules inside an envelope in the center 

console. A forensic lab later identified these capsules as oxycodone.

Wilson's charges, suppression motion, and convictions

The State charged Wilson with one count of possession of an opiate, opium, 

narcotic, or certain simulant; one count of driving while suspended, her second or 

subsequent conviction; and one count of unsafe turning or stopping, failure to give proper 

signal.

Before trial, Wilson sought to suppress the oxycodone capsules found in her car.

She argued that the officers impermissibly extended the traffic stop by calling the drug 

dog. Wilson pointed out that she did not consent to the search and argued that her

criminal history alone could not create reasonable suspicion to extend the stop. The State 

countered that calling the K-9 unit did not measurably extend the stop. And the State 

suggested Wilson's stop at the surveilled house, her drug history, and her suspicious 

explanation about stopping in front of the house she was looking at to rent provided 

reasonable suspicion to complete the K-9 sniff.

As we have noted, the district court conducted an evidentiary hearing on Wilson's

suppression motion. After considering the evidence, the court declined to suppress 

evidence of the oxycodone. In the court's written order, it stated that Wilson was not 

detained for an unreasonable period of time since the dog arrived before the officer 

completed the citation paperwork.
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A jury found Wilson guilty of possession of an opiate and driving while 

suspended. She now appeals.

DISCUSSION

Wilson raises two issues on appeal. First, she argues the district court should have 

suppressed the oxycodone capsules found in her car because they were only found 

because the officers impermissibly extended the traffic stop. Second, Wilson argues there 

was not sufficient evidence to convict her of possession of an opiate, asserting the State 

failed to prove that oxycodone is an opiate under K.S.A. 2019 Supp. 21-5706(a). We find 

neither argument persuasive. 

1. The district court did not err by denying Wilson's motion to suppress evidence of the 

oxycodone.

The Fourth Amendment to the United States Constitution, made applicable to the 

states through the Fourteenth Amendment's Due Process Clause, protects "[t]he right of 

the people to be secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures." Section 15 of the Kansas Constitution Bill of Rights provides "the 

same protection from unlawful government searches and seizures as the Fourth 

Amendment." State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010). When a person 

is stopped by a police officer for a traffic infraction, a seizure occurs under the Fourth 

Amendment. State v. Jimenez, 308 Kan. 315, 316, 420 P.3d 464 (2018).

"Traffic stops must not be measurably extended beyond what is necessary to 

process the infraction prompting the stop, unless there is reasonable suspicion of or 

probable cause to believe there is other criminal activity, or consent." 308 Kan. at 316 

(citing Rodriguez v. United States, 575 U.S. 348, 355, 135 S. Ct. 1609, 191 L. Ed. 2d 492 

[2015]). This necessary information usually includes "checking the driver's license, 
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determining whether there are outstanding warrants against the driver, and inspecting the 

automobile's registration and proof of insurance." 575 U.S. at 355. Investigation into 

other crimes "diverts from that mission and cannot become a permissible de minimis

intrusion" unless the officers have facts causing them to suspect that some other crime 

has been committed. Jimenez, 308 Kan. at 317 (citing Rodriguez, 575 U.S. at 355-57). 

Under Kansas law, police may ask questions of a stopped driver about matters 

unrelated to the stop so long as they do not extend the traffic stop "'beyond the time 

reasonably required to effectuate [the stop's] purpose.'" 308 Kan. at 329 (quoting United 

States v. Pettit, 785 F.3d 1374, 1379 [10th Cir. 2015]). Officers must be "especially 

careful to ensure nonconsensual inquiries occur concurrently with the tasks permitted for 

such stops so they will not measurably extend the time it would otherwise take." Jimenez,

308 Kan. at 326. This is called multitasking. 308 Kan. at 326. If an officer is not 

effectively multitasking, these unrelated inquiries—without reasonable suspicion, 

probable cause, or consent—impermissibly expand the stop beyond what the Constitution 

permits. 308 Kan. at 325-26.

Wilson argues that the district court erred in declining to suppress evidence of the 

oxycodone, asserting the police officers lacked reasonable suspicion to extend the stop 

beyond traffic-related issues. In doing so, she renews the argument she raised at the 

suppression hearing, claiming the K-9 sniff extended the duration of the stop beyond 

what was constitutionally permitted. She also adds a new argument, raised for the first 

time on appeal, that the officers impermissibly extended the duration of the stop when 

they checked her criminal history. We address the reasons why we decline to consider 

this new argument before reviewing Wilson's challenge to the district court's ruling. 
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1.1. Wilson's argument that the criminal-history check extended the stop is not

preserved for appeal. 

Appellate courts are courts of review. This means we ordinarily only consider 

claims that were preserved in earlier proceedings—most often, claims that were first 

presented to the district court. See State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 

(2018); State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). This preservation 

requirement serves several practical purposes. Most notably, it allows the district court 

the opportunity to consider and rule on the parties' claims, thereby reducing the chance of 

reversible error and the need for a new trial. It also allows the parties the opportunity to 

create a comprehensive trial record, ensuring a more meaningful review on appeal.

When a party presents an issue on appeal that was not raised before, it deprives the 

district court of the ability to consider the argument and conduct an error-free proceeding. 

It also deprives the appellate court of a complete record to review, as there are no 

previous arguments to consider and no decision by the district court to evaluate. We 

occasionally exercise our discretion to reach an unpreserved argument if we find that the 

issues warrant our review and if review is possible based on the record before us. State v. 

Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017). For example, we have sometimes 

decided to consider purely legal issues raised for the first time on appeal if they are based 

on undisputed facts and would resolve the case or if the record permits review and 

deciding the issue is necessary to serve the ends of justice or prevent deprivation of a 

fundamental right. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019).

Wilson's argument that the officers measurably extended the traffic stop by 

checking her criminal history was not argued before the district court. A review of the 

record shows that while Wilson mentioned her criminal history, she did so in the context 

of whether it created reasonable suspicion for the K-9 unit to conduct a sniff—not 

whether it measurably extended the stop. These are different arguments requiring 
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different factual evaluations. As such, the parties offered little, if any, evidence regarding 

the manner in which the officers conducted her criminal-history search, and the district 

court made no findings about whether the manner of that search meaningfully and 

impermissibly extended the stop. 

Despite this change of course, Wilson does not acknowledge in her appeal that this 

argument is new, nor does she present us with any reasons why we should consider this 

question in the first instance. See Supreme Court Rule 6.02(a)(5) (2023 Kan. S. Ct. R. at 

36) ("If the issue was not raised below, there must be an explanation why the issue is 

properly before the court."); see also State v. Godfrey, 301 Kan. 1041, Syl., 350 P.3d 

1068 (2015) (failure to satisfy Rule 6.02[a][5] results in an abandonment of the issue).

We decline to consider this fact-intensive argument for the first time on appeal.

1.2. The K-9 sniff did not measurably extend the traffic stop. 

Apart from her new argument about the criminal-history check, Wilson briefly 

revisits her assertion that the stop was unconstitutionally prolonged by the time it took the 

K-9 unit to indicate that there were drugs in her car. She points out that the K-9 unit 

arrived at 4:51 p.m., essentially just as Officer Bailey completed the citation, and the dog 

alerted next to the car four minutes later. Wilson argues that she should have received her 

traffic citation when Officer Bailey completed it—which was about 40 seconds after the 

drug dog arrived—and had been allowed to leave. The State counters that the time it took 

the dog to sniff Wilson's car did not measurably extend the stop, meaning no 

constitutional violation occurred. We agree with the State. 

This court reviews the factual underpinnings of a district court's decision to deny 

a suppression motion for substantial competent evidence and its ultimate legal conclusion 

de novo. State v. Doelz, 309 Kan. 133, 138, 432 P.3d 669 (2019). When, as here, the 

material facts are not in dispute, the constitutionality of a search is a question of law over 
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which our review is unlimited. State v. Stevenson, 299 Kan. 53, 57-58, 321 P.3d 754 

(2014). Although a defendant initiates a constitutional challenge to a search or seizure by 

filing a motion to suppress the evidence in question, the State has the burden to prove any 

challenged police conduct was permissible. K.S.A. 2022 Supp. 22-3216(2); State v. 

Cleverly, 305 Kan. 598, 605, 385 P.3d 512 (2016).

Because a dog sniff is not a routine traffic measure, it is constitutionally 

permissible during a traffic stop "as long as [the dog sniff] did not prolong the stop 

beyond the time necessary to accomplish the original purpose of issuing a traffic 

citation." State v. Jones, 300 Kan. 630, 641, 333 P.3d 886 (2014). In analyzing the 

lawfulness of a dog sniff during a traffic stop, our focus "is not whether the dog sniff

occurs before or after the officer issues a ticket," but rather "whether conducting the sniff

'prolongs'—i.e., adds time to—'the stop.'" Rodriguez, 575 U.S. at 357.

The State correctly notes that Wilson points to no evidence showing that the dog 

sniff measurably extended the stop beyond the time that was required to accomplish the 

stop's original purpose. The roughly four minutes between the completion of Wilson's 

traffic citation and the dog's indication of drugs do not amount to a delay that would 

render the stop unconstitutional. This is particularly true where the officers had already 

confirmed that Wilson had committed a crime (driving while suspended); Wilson's 

assertion that she would have been free to leave immediately upon Officer Bailey's 

completion of the citation is unfounded. 

Because there is no evidence that the dog sniff meaningfully extended the duration 

of the original stop, we find no Fourth Amendment violation here. Thus, we need not 

address Wilson's alternative arguments regarding the officers' reasons for extending the 

stop and whether the oxycodone would have been inevitably found when Wilson was 

arrested for driving while suspended. In short, the district court did not err when it denied 

Wilson's motion to suppress the oxycodone found in the console of her car.
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2. There was evidence presented at trial to support Wilson's conviction for unlawful 

possession of an opiate.

Wilson also challenges the sufficiency of the evidence to convict her of possession 

of an opiate. When a defendant challenges the sufficiency of the evidence, an appellate 

court reviews the evidence "in a light most favorable to the State to determine whether a 

rational factfinder could have found the defendant guilty beyond a reasonable doubt." 

State v. Rosa, 304 Kan. 429, Syl. ¶ 1, 371 P.3d 915 (2016). Appellate courts do not 

participate in the trial or observe the witnesses' testimony; we therefore do not reweigh 

the evidence, resolve evidentiary conflicts, or reassess witness credibility. State v. Keel, 

302 Kan. 560, 566, 357 P.3d 251 (2015). 

Wilson claims that she could not be convicted of unlawful possession of an opiate 

because the State did not prove that oxycodone—which is not specifically referenced in 

K.S.A. 2019 Supp. 21-5706(a)—was an "opium, opiate, or narcotic drug" within the 

meaning of that statute. She argues that the fact that Kansas statutes elsewhere categorize 

oxycodone as an opiate (see K.S.A. 65-4107[b][1]) is not sufficient to render possession 

of oxycodone in all instances a crime under K.S.A. 2019 Supp. 21-5706(a), particularly 

when the criminal complaint does not reference that other statutory section. 

While Wilson makes an interesting argument about statutory interpretation, we 

find it unnecessary to resolve because the State presented testimony at trial that 

oxycodone is an opiate. This testimony provided a basis from which the jury could 

conclude that Wilson unlawfully possessed an opiate.

At trial, two witnesses specifically addressed whether oxycodone was an opiate. A 

program manager from the State Board of Pharmacy testified twice that oxycodone "is a 

Schedule II [drug]," and a Sedgwick County forensic chemist testified that "both 
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[oxycodone and hydrocodone] are classified as a narcotic or an opiate drug." Given our 

deference to the jury's assessment of the evidence, these statements support the jury's 

finding that the substance Wilson possessed—oxycodone—was an opiate.

We note that a panel of this court recently considered a similar question in State v. 

Caldwell, No. 124,476, 2022 WL 17174569, at *9-10 (Kan. App. 2022) (unpublished 

opinion), petition for rev. filed December 14, 2022. The Caldwell panel held that the 

State proved that hydrocodone and morphine were drugs criminalized under K.S.A. 2018 

Supp. 21-5706(a)—although like oxycodone, they are not explicitly referenced in the 

statute—because an officer in that case had "testified that hydrocodone and morphine are 

'Schedule II narcotics.'" 2022 WL 17174569, at *10. Wilson does not meaningfully 

distinguish her case from Caldwell, and we see no reason to depart from the panel's 

reasoning there.

There was evidence presented at trial to show that Wilson unlawfully possessed an 

opiate. We affirm her conviction for that offense.

Affirmed.