No. 110,439

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

CAMERON HOWARD,

Appellant.

SYLLABUS BY THE COURT

1.

When a person is determined by a Missouri court to be guilty of an offense and 

placed on probation, that offense counts as a conviction under Kansas law for purposes of 

the Kansas statute forbidding possession of a firearm by a felon, K.S.A. 2013 Supp. 21-

6304, even though the Missouri court suspended imposition of its sentence, the defendant 

successfully completed the Missouri probation, and under Missouri law the person would 

not be considered to have been convicted of a felony.

2.

A search without a warrant is allowed when probable cause is combined with 

exigent circumstances. When an officer observes a plastic baggie in a car with a corner 

ripped off, the officer's training and experience indicates that such an item is commonly 

used to transport illegal drugs, and no evidence points to a common, lawful use for 

baggies with the corner cut off, the officer has probable cause to search the car for 

evidence of illegal drug activity.
2

3.

The crime of criminal possession of a firearm, K.S.A. 2013 Supp. 21-6304, is a 

general-intent crime, requiring that the defendant knowingly possess a firearm but not 

additionally requiring that the defendant know that his or her legal status makes the 

possession of a firearm illegal.

Appeal from Johnson District Court; JAMES FRANKLIN DAVIS, judge. Opinion filed December 5, 

2014. Affirmed.

Craig M. Divine, of Divine Law Office, LLC, of Kansas City, Missouri, for appellant.

Jacob M. Gontesky and Steve J. Obermeier, assistant district attorneys, Stephen M .Howe, district 

attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., LEBEN, J., and HEBERT, S.J.

LEBEN, J.: Officer Chad Loughman noticed a plastic baggie with a corner missing 

in a cupholder during a traffic stop. The driver, Cameron Howard, and his passenger were 

arrested for outstanding warrants. Officer Loughman had the passenger, who was 

noticeably pregnant, sit on the curb about 6 to 8 feet from the car, and Howard was 

placed in the back of a police car. Officer Loughman then searched the car for illegal 

drugs based on the fact that plastic-baggie corners are often used to transport drugs. He

found an AK-47 firearm, and the State later charged Howard with criminal possession of 

a firearm, believing he was prohibited from possessing a firearm because he had pled 

guilty to first-degree burglary in Missouri in 2006. See K.S.A. 2013 Supp. 21-6304(a)(2). 

The district court convicted Howard of criminal possession of a firearm after a bench trial 

on stipulated facts.

On appeal, Howard makes three arguments—that he was not prohibited from 

possessing a firearm because he received and completed probation for a suspended 
3

imposition of sentence in Missouri (which is not considered a conviction there), that the 

police discovered the gun during an unlawful search of his vehicle, and that the district 

court erred in excluding evidence that he lawfully purchased the AK-47 in Missouri after 

reporting his criminal background for a federal background check.

First, we hold Howard was prohibited from possessing a firearm in Kansas 

because the Missouri court found him guilty of first-degree burglary and in Kansas a 

person is "convicted" when a sentencing court makes an adjudication of guilt. See K.S.A. 

2013 Supp. 21-5111(d). Second, the State lawfully searched Howard's vehicle. The police 

are not required to obtain a warrant to conduct a search if there are exigent circumstances 

and probable cause to search. Here the mobility of Howard's vehicle created exigent 

circumstances, and the torn plastic baggie and the officer's training and experience 

regarding such baggies created probable cause to search. Third, we affirm the district 

court's decision to exclude evidence that Howard lawfully purchased the AK-47 in 

Missouri. The evidence was irrelevant because criminal possession of a firearm is a 

general-intent crime and the State had to prove only that Howard possessed the firearm, 

not that he knew he was considered a convicted felon in Kansas. 

We therefore affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2011, Loughman, a Prairie Village police officer with almost 20 

years of experience, stopped Howard after he saw him drive through a parking lot to 

avoid an intersection, a traffic infraction in Prairie Village. When Officer Loughman 

approached Howard's car, he noticed that the passenger had reclined her seat since he had 

first observed her. The officer discovered that Howard had an outstanding warrant, so he 

called for backup. Sergeant James Carney arrived as backup, and he handcuffed Howard 

and placed him in the back of a patrol car. Officer Loughman then scanned the inside of 
4

Howard's car but did not move anything. In the cupholder in the center armrest, he saw a 

plastic baggie with "a corner ripped out." 

Officer Loughman then discovered that the passenger in the vehicle also had an 

outstanding warrant. He planned to arrest her and had her step out of the car too. Because 

she was noticeably pregnant, he had her sit, without handcuffs, on a curb about 6 to 8 feet 

from the passenger door of the vehicle. 

Officer Loughman then searched the car for illegal drugs based on his belief that 

the baggie was drug paraphernalia. He moved the passenger seat forward and into a more 

upright position and found a loaded AK-47 firearm that had been concealed by the 

driver's-side-rear and front-passenger floor mats. He then asked Howard about the 

baggie, and Howard told him that the baggie had once contained marijuana. 

The State charged Howard with one count of criminal possession of a firearm by a 

convicted felon, a severity-level-8 nonperson felony, based on his guilty plea to firstdegree burglary in Missouri in October 2006. The Missouri court suspended the 

imposition of its sentence and granted probation, but the written journal entry stated that 

Howard had been found guilty of first-degree burglary:

"Beyond a reasonable doubt, defendant is guilty of the crime. The plea of guilty is 

accepted and the Court finds that defendant is guilty of the crime. 

"IT IS ADJUDGED that defendant, having been found guilty upon a plea of 

guilty entered on October 19, 2006, is guilty of the offense of: Count I—Burglary First 

Degree, Class B Felony."

The Missouri sentence was suspended on the condition that Howard serve a presentence 

probation and comply with its requirements. Howard complied with his probation 
5

conditions, so the Missouri court discharged him from its jurisdiction and ordered that his 

file be a closed record. 

In the current case, the State filed a motion in limine asking to exclude evidence 

that Howard legally purchased the AK-47 in Missouri. Howard also filed a motion to 

suppress the evidence that he possessed a firearm, arguing that such evidence was 

illegally obtained through a warrantless search of his vehicle. The district court granted 

the State's motion and denied Howard's. The district court found that the twisted or cutoff corner of the baggie was probable cause for the police to search the car, noting that 

"[t]o many people looking at [the baggie] it may signal nothing, but to a law enforcement 

officer trained in narcotics interdiction and so forth, it may be quite significant." The 

judge concluded that there "was enough of a suggestion here that there was narcotics 

possibly connected with this vehicle." 

After the district court denied the motion to suppress, Howard's case was 

submitted to the court for a bench trial on the following stipulated facts:

"1. On September 15, 2011, Prairie Village Police Officer Chad Loughman conducted a 

traffic stop on a car near 7720 State Line Road in Prairie Village, Johnson County, 

Kansas.

"2. Once the car was stopped, the driver was identified as Cameron Howard. Howard was 

found to have a warrant for his arrest from Leawood Municipal Court. The passenger of 

the vehicle had a warrant from Prairie Village Municipal Court. 

"3. Once both persons were removed from the vehicle, officers found a loaded firearm 

beneath one of the seats. Howard admitted the firearm belonged to him. Howard told the 

officers he had purchased the firearm from a store in Raytown, Missouri. 
6

"4. On October 19, 2006, Cameron Howard entered a 'Guilty Plea' to one count of 

'Burglary First Degree, Class B Felony' in the Circuit Court of Jackson County, Missouri 

in Case No. 0616-CR03677-01. . . . 

"5. Following the plea, the Circuit Court ordered 'that imposition of sentence be 

suspended and defendant is placed on probation for a period of three (3) years under the 

supervision of the Missouri State Board of Probation and Parole.'" 

The district court found Howard guilty of criminal possession of a firearm and 

sentenced him to 18 months of probation with an underlying 7-month prison term. 

Howard appeals to this court, arguing that his Missouri offense was not a prior 

conviction, that the police unlawfully searched his vehicle, and that the district court 

erred in excluding evidence that he legally purchased the AK-47 in Missouri. 

ANALYSIS

I. A Judicial Finding of Guilt by a Missouri Court Constitutes a Prior Felony Conviction 

Even If the Missouri Court Suspends the Imposition of Sentence and the Defendant 

Successfully Completes the Missouri Probation.

Under K.S.A. 2013 Supp. 21-6304, a person is guilty of criminal possession of a 

firearm in Kansas if he or she possesses a firearm and has previously been "convicted of 

[certain Kansas felonies] or a crime under a law of another jurisdiction which is 

substantially the same" as one of those felonies. Howard does not dispute that his 2006 

first-degree-burglary offense in Missouri is substantially similar to a Kansas felony. 

Instead, he argues that the district court should not have allowed the State to use his

Missouri burglary as a prior conviction at all because Howard had successfully completed

probation for his suspended imposition of sentence in 2008. When a Missouri defendant

on a suspended sentence completes probation for the offense, Missouri doesn't count it as 

a conviction. See Mo. Rev. Stat. § 557.011.2(3) (2000) & (2013 Supp.); Yale v. City of 

Independence, 846 S.W.2d 193, 195-96 (Mo. 1993). 
7

We must decide whether Howard's Missouri suspended sentence and completed 

probation count as a conviction under Kansas law. In a case involving a suspendedimposition-of-sentence offense in Missouri, the Kansas Supreme Court held that the 

question of whether a defendant has been "convicted" for purposes of the Kansas firearmpossession statute is determined under Kansas law. See State v. Pollard, 273 Kan. 706, 

711-12, 44 P.3d 1261 (2002). 

Whether an out-of-state adjudication constitutes a prior conviction under the 

Kansas sentencing guidelines is a question of statutory interpretation that we must review 

independently, without any required deference to the district court. See State v. Reese, 

300 Kan.___, ___, 333 P.3d 149, 151 (2014); State v. Arnett, 290 Kan. 41, 47, 223 P.3d 

780 (2010). When interpreting a statute, we first determine the legislature's intent through 

the statute's language, by giving words their ordinary meaning. State v. Brooks, 298 Kan. 

672, 685, 317 P.3d 54 (2014); Northern Natural Gas Co. v. ONEOK Field Services Co., 

296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). If the language is 

unclear, we use canons of construction, legislative history, or other background 

considerations to determine what the statute means. 296 Kan. at 918. 

As the parties recognize, the Pollard case must guide our analysis. Pollard had 

pled guilty in Missouri to felony first-degree attempted burglary, and the district court 

had ordered suspended imposition of sentence and placed Pollard on 2 years' probation. 

The State of Kansas then charged Pollard with criminal possession of a firearm while he 

was still on probation in Missouri. The Kansas Supreme Court held that the Missouri 

offense was a prior conviction for the purpose of establishing the prior-conviction 

element of the Kansas firearm-possession statute but limited its holding to cases where 

the Kansas offense occurs while the defendant is still on probation for a suspended 

sentence in another state. 273 Kan. at 714. Howard argues that his case is distinguishable 
8

from Pollard because at the time of Howard's Kansas offense, he had completed 

probation for his Missouri offense. 

The Pollard court found that ongoing probation under a suspended sentence in 

Missouri counted as a conviction in Kansas based on three lines of reasoning: (1) the 

legal definition of "conviction" under caselaw and a Kansas statute; (2) the procedural 

posture of the Missouri felony; and (3) the construction of the term "conviction" for 

criminal-history-scoring purposes. 273 Kan. at 712. Howard attempts to distinguish his 

case under each line of reasoning.

Under the first line of reasoning, the Pollard court concluded that Kansas statutes 

and caselaw provide that a person is considered convicted upon being found guilty by a 

court. 273 Kan. at 712-13 (citing K.S.A. 21-3110[4]). K.S.A. 2013 Supp. 21-5111(d) 

provides that under the recodified Kansas Criminal Code, the term "conviction" includes 

"a judgment of guilt entered upon a plea of guilty," and that definition applies to words 

used in the criminal code—including the statute defining criminal possession of a 

firearm—unless the context clearly requires a different meaning. (Emphasis added.). See 

K.S.A. 2013 Supp. 21-6304. Under Kansas caselaw, a person is "convicted" when the 

sentencing court finds the person guilty. State v. Holmes, 222 Kan. 212, 213, 563 P.2d 

480 (1977). 

Here the Missouri journal entry says that the court "adjudged . . . [Howard] guilty 

of . . . Burglary First Degree" based on his guilty plea, and Mo. Rev. Stat. § 557.011.2(3)

provides authority for a court to suspend the imposition of sentence only in cases where 

the defendant "has been found guilty" of a crime. Under K.S.A. 2013 Supp. 21-5111(d) 

and Holmes, a conviction is contingent upon an adjudication of guilt, not on completing 

probation requirements. Thus, the Pollard court's first line of reasoning applies here and 

indicates that Howard's Missouri burglary should count as a conviction based on his 

adjudication of guilt by the Missouri court. 
9

For its second line of reasoning, the Pollard court held that its finding that the 

Missouri burglary counted as a conviction was supported by the fact that in Kansas 

probation follows a valid conviction and placing a defendant on probation does not affect 

the finality of the judgment. 273 Kan. at 713. Howard argues that this line of reasoning 

doesn't apply to his case because his suspended sentence is more comparable to a Kansas 

diversion agreement than probation. 

But as Howard himself acknowledges, a Kansas diversion agreement is

significantly different from his suspended sentence in Missouri. In Kansas, the State—

and not the court—enters into a contractual diversion agreement with a defendant. The 

defendant does not plead guilty as a condition of diversion. See State v. Hankins, 49 Kan. 

App. 2d 971, 985, 319 P.3d 571 (2014), petition for rev. filed March 19, 2014. If the 

defendant successfully completes the terms of the diversion, he or she is not prosecuted, 

but if the defendant is unsuccessful, he or she may be prosecuted and tried on stipulated 

facts. K.S.A. 2013 Supp. 22-2909(a), (c). Because the Missouri court found Howard 

guilty of first-degree burglary, his suspended sentence and probation is distinguishable 

from a Kansas diversion, and the Pollard court's second line of reasoning is still 

applicable to Howard's case.

For its third line of reasoning, the Pollard court applied our court's interpretation 

of the word "conviction" in the scoring of criminal history for the purpose of determining 

the correct sentence under our sentencing guidelines, which factor in the number of prior 

convictions. In State v. Macias, 30 Kan. App. 2d 79, 83, 39 P.3d 85, rev. denied 273 Kan. 

1038 (2002), our court counted an out-of-state adjudication of guilt as a prior conviction

that increased the sentence for a Kansas crime, concluding that a defendant is considered 

guilty if his or her factual guilt has been established in the foreign state. See also State v. 

Siesener, 35 Kan. App. 2d 649, Syl. ¶¶ 4-5, 137 P.3d 498 (2005), rev. denied 281 Kan. 
10

1381 (2006) (holding that criminal history properly included Missouri offense since 

defendant who received suspended sentence had pled guilty).

With regard to this line of reasoning, we note that a member of our court, Judge G. 

Gordon Atcheson, has criticized the Pollard court's reliance on Macias. See Hankins, 49 

Kan. App. 2d at 986, 991-92 (Atcheson, J., concurring). Judge Atcheson noted that the 

Macias court had failed to consider the Kansas Criminal Code's definition of 

"conviction," now found at K.S.A. 2013 Supp. 21-5111(d). In Hankins, the defendant 

received a deferred sentence for a conviction in Oklahoma, and the Oklahoma statute 

providing for deferred convictions stated that the sentencing court could impose a 

deferred conviction after the court accepted the defendant's guilty plea but "before a 

judgment of guilt." 49 Kan. App. 2d at 979; Okla. Stat. tit. 22 § 991c (2011). Judge 

Atcheson noted that in Kansas a conviction includes "a judgment of guilt" entered upon a 

plea of guilty. He argued that the Oklahoma deferred-sentencing process—which 

pointedly excluded a judgment of guilt—should not have counted as a conviction under 

Kansas law. 49 Kan. App. 2d at 989 (Atcheson, J., concurring); see K.S.A. 2013 Supp. 

21-5111(d). He concurred in the majority's opinion counting the Oklahoma offense as a 

prior conviction only because the Kansas Supreme Court adopted the Macias reasoning 

in Pollard. Hankins, 49 Kan. App. 2d at 991-92.

But Judge Atcheson's concerns with the Pollard court's analysis do not affect the 

outcome of Howard's case. As we have noted, in Howard's case, the Missouri court 

"adjudged" Howard guilty of first-degree burglary, and the Missouri suspendedimposition-of-sentence statute applies only when the defendant "has been found guilty." 

Mo. Rev. Stat. § 557.011.2(3). In his case, the Missouri court satisfied Kansas' definition 

of "conviction" found at K.S.A. 2013 Supp. 21-5111(d) when it adjudged him guilty and

had to determine his factual guilt to accept his plea. See Missouri Supreme Court Rule 

24.02(e) (2004).
11

Howard is right that the Pollard court limited its decision to the facts of Pollard's 

case, and Pollard, unlike Howard, had not yet completed his probation. But we see no 

reason that this ultimately should affect the result. Kansas law defines a conviction based 

on the adjudication of guilt, and Kansas law—specifically the Kansas firearm-possession 

statute—is what applies here. Howard's adjudication of guilt for burglary counts as a 

conviction under Kansas law. Accordingly, we find that when a defendant receives a 

suspended sentence in Missouri and successfully completes probation, the suspended 

sentence counts as a prior conviction to establish criminal possession of a firearm in 

Kansas. 

II. The Police Lawfully Searched Howard's Car.

Howard next argues that the police found the AK-47 during an unreasonable 

search. The Fourth Amendment to the United States Constitution (applied to the states 

through the Fourteenth Amendment) and § 15 of the Kansas Constitution Bill of Rights 

protect our right to be secure in our person and property from unreasonable searches or 

seizures by the government, including law-enforcement officers. Accordingly,

warrantless searches by police are considered unreasonable unless a recognized exception 

permits them. State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012). Kansas has 

recognized several exceptions to the Fourth Amendment search-warrant requirement: 

consent, search incident to a lawful arrest, stop and frisk, probable cause plus exigent 

circumstances, the emergency doctrine, inventory searches, plain view or feel, and 

administrative searches of closely regulated businesses. 294 Kan. at 55. The State has the 

burden of demonstrating that the search was lawful. State v. Julian, 300 Kan. ___, 333 

P.3d 172, 174 (2014).

The district court mentioned three of the exceptions—probable cause plus exigent 

circumstances, search incident to a lawful arrest, and plain view—when it denied 

Howard's motion to suppress. We review the district court's denial of a motion to 

suppress evidence under a two-part standard. Without reweighing the evidence, we 
12

examine the district court's factual findings to determine whether they are supported by 

substantial evidence. State v. Karson, 297 Kan. 634, 639, 304 P.3d 317 (2013). In 

Howard's case, the facts material to the legal issues are not in dispute. The only 

remaining question is a legal one—whether the district court should have suppressed the 

evidence. We review the district court's legal conclusion independently, without any 

required deference to its conclusion. 297 Kan. at 639.

We begin and end our analysis with an exception we find applies here—probable 

cause plus exigent circumstances. Under this exception, the police may search without a 

warrant when they have probable cause to search—meaning there is a fair probability that 

the police will find evidence of a crime—and exigent circumstances. State v. Jefferson, 

297 Kan. 1151, 1159, 310 P.3d 331 (2013). 

Because the police searched Howard's vehicle, this case falls under a subclass of 

the probable-cause-plus-exigent-circumstances exception: the automobile exception. 

Under the automobile exception, the mobility of the vehicle itself provides the exigent 

circumstances. Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S. Ct. 2013, 144 L. Ed. 2d 

442 (1999); Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 135 L. Ed. 2d 

1031 (1996); Sanchez-Loredo, 294 Kan. at 51. The vehicle's "ready mobility" is an 

exigency sufficient to excuse failure to obtain a warrant, so the fact that the driver of the 

vehicle and any passengers are no longer in the vehicle at the time of the search does not 

make the car immobile so as to eliminate the application of the automobile exception. 

Labron, 518 U.S. 940-41 (automobile exception applied to the warrantless search of 

defendants' vehicles, even though the defendants had already been arrested at the time of 

the search). Moreover, Howard does not argue that his vehicle was immobile when the 

search occurred. With exigency established by the automobile exception, we need only to 

determine whether the police had probable cause for the search.
13

The State argues that the torn plastic baggie, Officer Loughman's knowledge 

(based on his training and experience) that torn baggies are often used to transport drugs, 

and the passenger's reclined seat established probable cause to search Howard's vehicle. 

We consider the evidence in its totality and determine whether these factors together 

created probable cause to search the vehicle. Sanchez-Loredo, 294 Kan. at 55.

First, the reclined seat does not significantly add to the probable-cause analysis. It 

does not suggest that the vehicle contained evidence of a crime—reclining a seat is a 

common, innocuous activity. 

But did the torn plastic baggie and Officer Loughman's training and experience 

about the use of such baggies create a fair probability that Howard's vehicle contained 

evidence of a crime? At a hearing on the motion to suppress, Officer Loughman said that 

baggies torn like the one he had seen in Howard's car are often associated with illegal 

drugs:

"[Prosecutor:] After that did you see anything that stood out to you?

"[Officer Loughman:] I did.

"[Prosecutor:] What did you see?

"[Officer Loughman:] There was a plastic baggie that had a corner ripped out of that 

baggie. 

"[Prosecutor:] And why did that stand out to you?

"[Officer Loughman:] My training and experience with drugs and transportation of illegal 

drugs, that is a common practice that people wrap marijuana in particular in cellophane 

baggies and twist the baggies several times to keep it secured. 
14

"[Prosecutor:] Okay. So it wasn't just the presence of a baggie. It was the fact of the 

corner and the way it was twisted off?

"[Officer Loughman:] Yes."

Many cases have discussed whether the mere presence of plastic bags provides 

probable cause for a drug search. Courts have found that an officer observing an intact 

plastic baggie, on its own, can't justify a warrantless search. State v. Runge, 8 Neb. App. 

715, 723, 728, 601 N.W.2d 554 (1999); State v. Neth, 165 Wash. 2d 177, 184-85, 196 

P.3d 658 (2008); State v. Sweeney, No. 07-0336, 2007 WL 4553475, at *2-5 (Iowa App. 

2007) (unpublished opinion). And possession of packaging commonly used to conceal 

drugs generally does not create probable cause to conduct a search. See Sweeney, 2007 

WL 4553475, at *3-4; 2 LaFave, Search and Seizure, A Treatise on the Fourth 

Amendment § 3.6(b), pp. 396-98 (5th ed. 2012) & pp. 11-13 (2013-14 Supp.).

But the Kansas Supreme Court has stated that torn or knotted baggies, which are 

associated with illegal drugs, might raise a reasonable suspicion (a less demanding 

standard than probable cause) to expand a traffic stop. See State v. Jones, 300 Kan. ___, 

333 P.3d 886, 891, 896-97 (2014); State v. Coleman, 292 Kan. 813, 817-18, 257 P.3d 320 

(2011). In addition, many courts, including our Kansas Supreme Court, have found that 

torn or knotted plastic baggies create probable cause when the circumstances of the case 

include other factors beyond a police officer's knowledge and training suggesting that a 

crime had occurred. See State v. Ramirez, 278 Kan. 402, 407-08, 100 P.3d 94 (2004) 

(defendant acting nervous, located in bar known for drug activity, and clenching a torn 

plastic baggie); State v. Parker, No. 110,183, 2014 WL 702564, at *6-7 (Kan. App. 2014) 

(in a high-crime area, officer observed a torn plastic baggie on the passenger's seat of 

defendant's car, and passenger had glassy eyes and was laughing inappropriately), rev. 

denied 299 Kan. ___ (June 20, 2014); see also People v. Hilt, 298 Ill. App. 3d 121, 125-

26, 698 N.E.2d 233 (1998) (officer observed torn baggie in defendant's possession in the 

early morning in an area known for drug trafficking); Coley v. State, 215 Md. App. 570, 
15

583-86, 81 A.3d 650 (2013) (officer observed torn baggie and knew the suspect had 

previously been a heroin user and that torn baggies are often used to store heroin).

A few courts have found that packaging that is rarely used for legal purposes—

along with an officer's training and experience—can be the basis for probable cause to 

seize an item. The Illinois Supreme Court found that an officer had probable cause to 

seize a small wooden "one-hitter" box of a type officer knew was commonly used to store 

marijuana, People v. Jones, 215 Ill. 2d 261, 271-75, 830 N.E.2d 541 (2005); the Nebraska 

Supreme Court found that an officer had probable cause to seize brown packages with 

certain markings the officer knew to indicate cocaine, State v. Prahin, 235 Neb. 409, 419, 

455 N.W.2d 554 (1990); and the Florida Supreme Court found that detectives in a highdrug-traffic area had probable cause to seize a baseball-shaped object wrapped in brown 

tape based on their training and experience with narcotics packaging and the fact that 

people do not frequently carry tape-wrapped baseballs. Cross v. State, 560 So. 2d 228, 

230-31 (Fla. 1990).

Like one-hitter boxes or tape-wrapped baseballs, people don't often carry baggies 

with torn corners, and Howard hasn't cited a common, legal use for baggie corners. In the 

absence of another purpose, the torn corner in this case indicates that the baggie had been 

used to store illegal drugs, even though the police didn't smell marijuana or observe that 

Howard or his passenger appeared to be under the influence of drugs. 

We acknowledge that whether probable cause exists is a close call here because 

only two factors—the torn corner on a baggie and the officer's training and experience—

support the probable-cause finding. But we find the combination of the two sufficient in 

this case.

The Fourth Amendment permits the use of an officer's training and experience as a 

factor in the probable-cause analysis. State v. Fitzgerald, 286 Kan. 1124, 1129-30, 192 
16

P.3d 171 (2008), overruled in part on other grounds by Sanchez-Loredo, 294 Kan. 50; 

see State v. MacDonald, 253 Kan. 320, 324-25, 856 P.2d 116 (1993) (odor of marijuana 

detected by an experienced law-enforcement officer, standing alone, can provide 

sufficient probable cause to support a search); State v. Hufford, No. 106,018, 2012 WL 

3289954, at *3 (Kan. App. 2012) (unpublished opinion) (officer's training and experience 

in detecting methamphetamine labs was a major factor supporting the court's probablecause finding), rev. denied 297 Kan. 1251 (2013). In fact, courts must "give due weight 

to inferences drawn from th[e] facts" by police officers when making probable-cause 

determinations. Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 

2d 911 (1996); see Jones, 300 Kan. at ___, 333 P.3d at 896-97. And here the conclusions 

Officer Loughman made were based on 20 years of training and experience. 

We find it especially important in our analysis that torn baggies do not have a 

common legal purpose. Based on the baggie's torn corner and the officer's experience, 

there was a fair probability that police would find evidence of a drug crime in the vehicle, 

thus satisfying the probable-cause requirement. See Jones, 300 Kan. at ___, 333 P.3d at 

896-97 (noting that cut-off baggie corners are often used for packaging illegal 

substances); see also United States v. Fisher, 912 F.2d 728, 731 (4th Cir. 1990) ("baggie 

corners are well-known tools of the narcotics distribution trade"). The district court did 

not err in denying Howard's motion to suppress the evidence found in the search of his 

car. 

III. The District Court Did Not Err by Excluding Evidence That Howard Had Legally 

Purchased the Firearm in Missouri.

Howard's final argument is that the district court should not have granted the 

State's motion in limine to exclude evidence that Howard legally purchased the AK-47 in 

Missouri. Howard wanted to admit evidence that he didn't know he was considered a 

felon because defendants convicted of felonies in Missouri cannot possess firearms and 
17

he had successfully completed a federal background check before purchasing the firearm

in Missouri. See Mo. Rev. Stat. § 571.070.1(1) (2011). The district court found that the 

evidence was irrelevant because the State only had to prove that Howard intended to 

possess the firearm in Kansas, not that he knew he was considered a convicted felon

when he did so. Howard claims the district court should have admitted the evidence so 

that he could have raised a mistake-of-fact defense—that he mistakenly thought he wasn't 

a felon and therefore didn't have the required mental state to commit criminal possession 

of a firearm.

We find Howard's argument unpersuasive because his mistake was a mistake of 

law, not of fact. Howard knew the underlying facts of his case—that he had completed 

probation for a suspended imposition of sentence in Missouri and that he had been able to 

purchase a firearm in Missouri. What he didn't know was the law—that he was 

considered a felon under Kansas' statute prohibiting criminal possession of a firearm.

Thus, we need to determine whether the court should have denied the State's motion so 

that Howard could raise a mistake-of-law defense.

A district court may grant a motion in limine when (1) the evidence in question 

will be inadmissible at a trial and (2) a pretrial ruling is justified as opposed to a ruling 

during trial. State v. Shadden, 290 Kan. 803, 816, 235 P.3d 436 (2010). When reviewing 

the first factor—admissibility—we apply a multistep analysis. 290 Kan. at 816-17. We 

first consider whether the evidence is relevant—meaning it has a tendency to prove a 

material fact—by looking at whether it is material and probative. See K.S.A. 60-401(b); 

State v. Marks, 297 Kan. 131, 142, 298 P.3d 1102 (2013). Material evidence establishes a 

fact that is at issue and is significant under the law of the case, and we review whether 

evidence was material independently, without any required deference to the district court. 

Probative evidence establishes proof of some fact, and we review the district court's 

finding about whether the evidence was probative for an abuse of discretion. 297 Kan. at 

142. A district court abuses its discretion if no reasonable person would have taken its 
18

view or if its ruling is based on an error of law or fact. State v. Mosher, 299 Kan. 1, 3, 

319 P.3d 1253 (2014). 

K.S.A. 2013 Supp. 21-5207 applies to mistake-of-law defenses. Subsection (a) 

provides that a defendant's ignorance or mistake of law is a defense to a crime if it 

negates the culpable mental state required for the crime, and subsection (b) lists four 

circumstances when a defendant has a valid mistake-of-law defense:

"(a) A person's ignorance or mistake as to a matter of either fact or law, except as 

provided in K.S.A. 2013 Supp. 21-5204, and amendments thereto, is a defense if it 

negates the existence of the culpable mental state which the statute prescribes with 

respect to an element of the crime. 

"(b) A person's reasonable belief that such person's conduct does not constitute a 

crime is a defense if:

(1) The crime is defined by an administrative regulation or order which is not 

known to such person and has not been published in the Kansas administrative 

regulations or an annual supplement thereto, as provided by law; and such person could 

not have acquired such knowledge by the exercise of due diligence pursuant to facts 

known to such person;

(2) such person acts in reliance upon a statute which later is determined to be 

invalid;

(3) such person acts in reliance upon an order or opinion of the supreme court of 

Kansas or a United States appellate court later overruled or reversed; or

(4) such person acts in reliance upon an official interpretation of the statute, 

regulation or order defining the crime made by a public officer or agency legally 

authorized to interpret such statute." K.S.A. 2013 Supp. 21-5207(a), (b).
19

Our court appeared to limit the mistake-of-law defense to the circumstances listed 

in subsection (b) in State v. Ortega, No. 106,210, 2013 WL 192714, at *9 (Kan. App. 

2013) (unpublished opinion) ("'A person's reasonable belief that his conduct does not 

constitute a crime' is only a defense in enumerated circumstances," discussing prior 

version of statute.), aff'd in part and rev'd in part on other grounds by 300 Kan. ___, 335 

P.3 93 (2014). Based on the statutory language, however, the mistake-of-law defense

appears to be available more broadly under K.S.A. 2013 Supp. 21-5207(a), which 

provides that "[a] person's ignorance or mistake as to a matter of . . . law . . . is a defense 

if it negates the existence of the culpable mental state which the statute prescribes with 

respect to an element of the crime." 

We will begin our analysis by considering the four circumstances listed in K.S.A. 

2013 Supp. 21-5207(b). If any of these apply, then Howard was entitled to pursue this 

defense.

The first three circumstances under subsection (b) are clearly not applicable. 

Howard didn't rely on an unpublished regulation, an invalid statute, or an overturned 

judicial opinion when he possessed the firearm. The fourth circumstance could possibly

apply to this case because Howard has argued that he relied on the federal background 

check, which permitted him to purchase a gun in Missouri. See K.S.A. 2013 Supp. 21-

5207(b)(4). But Howard has not established or even argued that the federal background 

check provided an interpretation of Kansas law—under which he's considered a felon—

or indicated that he could possess a firearm in Kansas. He also has not argued that the 

background check provided a legally authorized interpretation of a Kansas statute. As a 

result, the fourth circumstance also doesn't apply. If the mistake-of-law defense is only 

available in the circumstances listed in subsection (b), Howard is barred from raising a 

mistake-of-law defense, and the evidence that he legally purchased the firearm in 

Missouri was irrelevant.
20

We will next consider Howard's mistake-of-law defense under K.S.A. 2013 Supp. 

21-5207(a), which appears to allow the defense when it would negate the culpable mental 

state required for a particular crime. We therefore must identify the mental state required

for this crime and then determine whether Howard could have had that mental state in 

light of his claimed mistake of law.

Before we present our conclusion about the required mental state, we feel obliged 

to take a brief detour because there's a strong argument that there wasn't supposed to be 

any required mental state for this crime—if you had a gun and were a felon, you had 

committed the crime. But that's not our reading of the statutes that have been adopted.

The legislature changed the criminal-intent requirements when it recodified the 

Kansas Criminal Code in 2011. See L. 2010, ch. 136, sec. 13; K.S.A. 2013 Supp. 21-

5202. The new criminal code applies to Howard's offense since it occurred after the new 

code became effective. See State v. Murdock, 299 Kan. 312, 318, 323 P.3d 846 (2014).

Determining which culpable mental state is defined in a criminal statute is a question of 

statutory interpretation that we must determine independently. See In re C.P.W., 289 

Kan. 448, 451, 213 P.3d 413 (2009).

Under the present code, a culpable mental state is an essential element of every 

crime unless the statute defining the crime clearly indicates that the legislature did not 

intend to require a mental element. K.S.A. 2013 Supp. 21-5202(a). Two statutory 

provisions require that the legislature be explicit if there is to be no required mental 

culpability. K.S.A. 2013 Supp. 21-5202(d) provides that "[i]f the definition of a crime 

does not prescribe a culpable mental state, a culpable mental state is nevertheless required 

unless the definition plainly dispenses with any mental element." (Emphasis added.)

K.S.A. 2013 Supp. 21-5203(b) provides that "[a] person may be guilty of a crime without 

having a culpable mental state if the crime is . . . a felony and the statute defining the 
21

crime clearly indicates a legislative purpose to impose absolute liability for the conduct 

described." (Emphasis added.)

The firearm-possession criminal statute does not prescribe the mental state a 

defendant must have to be guilty of the crime. It merely says that the State must prove 

two elements—being convicted of a felony and possessing a firearm:

"(a) Criminal possession of a firearm by a convicted felon is possession of any 

firearm by a person who: . . . (2) within the preceding five years has been convicted of a 

felony . . . under the laws of Kansas or a crime under a law of another jurisdiction which 

is substantially the same as such felony . . . ." K.S.A. 2013 Supp. 21-6304(a)(2).

The Kansas Criminal Code Recodification Commission—which proposed the 2011 

criminal-code amendments to the legislature—likely intended that criminal possession of 

a firearm require no culpable mental state. Neither the pre- nor postrecodification 

language of the firearm-possession criminal statute contained a mental-culpability term, 

and the Commission's Final Report said that after reviewing all of the criminal statutes, it

declined to add a mental-culpability term only when it believed the legislature intended 

for the crime to be a strict liability crime:

"[T]he Commission has reviewed all statutes in the code that include a definition of a 

crime. The Commission revised the statutes to address the following issues:

. . . . 

"(2) In statutes where no culpability term is used, the Commission inserted the 

culpability term that it felt was consistent with legislative intent except in those instances 

where it believed that the legislature intended for the crime to be a strict liability crime."

Kansas Criminal Code Recodification Commission, 2010 Final Report to the Kansas 

Legislature, pp. 25-26 (December 16, 2009) (http://www.kansasjudicialcouncil.org/

Resources.shtml).
22

So it would appear that the Commission intended that there be no mentalculpability element to this offense. We have taken this detour to discuss the 

Commission's comments in part because legislators who read the Commission's report 

before enacting the revised code may have believed that the code's language was 

consistent with the Commission's report. But we cannot interpret the statute based on the 

intentions of an advisory commission. We must look at the plain language of the statue 

and give the words their ordinary meanings. State v. Brooks, 298 Kan. 672, 685, 317 P.3d 

54 (2014). The language of the statute does not mention any mental element; it simply

outlaws the possession of a firearm by a convicted felon. The statute doesn't plainly

dispense with a mental element or clearly indicate that the legislative purpose of the 

statute is to impose absolute liability. We cannot read the Commission's intentions into 

the statute when they are not readily found there. See State v. Kendall, 300 Kan. ___, 331 

P.3d 763, 768 (2014).

When the legislature wanted to have no required culpable mental state for a crime, 

it knew how to do so plainly and clearly so as to comply with the requirements of K.S.A. 

2013 Supp. 21-5202(d) and K.S.A. 2013 Supp. 21-5203(b). For example, the statute 

defining unlawful possession of firearms on certain government property declares it 

unlawful to possess, "with no requirement of a culpable mental state," a firearm in the 

capitol complex, the governor's residence, state-owned buildings with signs stating that 

firearms are prohibited, and county courthouses. (Emphasis added.) See K.S.A. 2013 

Supp. 21-6309(a). Because the statute defining criminal possession of a firearm doesn't 

clearly state that it is defining an absolute-liability crime, it requires a culpable mental 

state. See K.S.A. 2013 Supp. 21-5202(d), (e). 

Our detour completed, we return to the question of what level of mental 

culpability applies to Howard's crime. The culpable mental state required as an essential 

element of every crime (unless the statute defining a crime clearly indicates it has no
23

mental element) is a general intent to commit the crime, meaning the intent to commit the 

conduct that constitutes the crime. K.S.A. 2013 Supp. 21-5202(a), (e) ("A culpable 

mental state may be established by proof that the conduct of the accused person was

committed 'intentionally,' 'knowingly,' or 'recklessly'" [Emphasis added.]; see State v. 

Diaz, 44 Kan. App. 2d 870, 873, 241 P.3d 1018 (2010), rev. denied 291 Kan. 914 (2011). 

Under the general-intent requirement, the State only needs to prove that the defendant 

acted intentionally in the sense that he was aware of what he was doing. In re C.P.W., 

289 Kan. at 454. 

Some crimes require an additional specific intent. For these crimes, the statute 

defining the crime in question identifies or requires a further particular intent that must 

accompany the prohibited acts. In re C.P.W., 289 Kan. at 454. In State v. Richardson, 289 

Kan. 118, 121, 209 P.3d 696 (2009), our Supreme Court explained the difference 

between specific and general intent under the old criminal code. The court analyzed the

statute prohibiting intentional exposure to life-threatening diseases: "(a) It is unlawful for 

an individual who knows oneself to be infected with a life threatening communicable 

disease knowingly: (1) To engage in sexual intercourse or sodomy with another 

individual with the intent to expose that individual to that life threatening communicable 

disease." (Emphasis added.) 289 Kan. at 122; see K.S.A. 2014 Supp. 21-5424(a)(1). The

court found that the defendant needed not only the general intent to engage in sexual 

intercourse or sodomy but also the specific intent to expose a sex partner to the lifethreatening communicable disease. 289 Kan. at 122.

In the new criminal code, the legislature has indicated that any statute defining a 

crime and expressing the mental-culpability requirement as "intentionally" or "with 

intent" is a specific-intent crime. K.S.A. 2013 Supp. 21-5202(h). The statute defining 

criminal possession of a firearm does not mention either of those words. And while it is 

possible that the legislature could have introduced a specific intent with other language, 

we don't see any in the statute: 
24

"(a) Criminal possession of a firearm by a convicted felon is possession of any 

firearm by a person who: . . . (2) within the preceding five years has been convicted of a 

felony . . . under the laws of Kansas or a crime under a law of another jurisdiction which 

is substantially the same as such felony . . . ." K.S.A. 2013 Supp. 21-6304(a)(2).

Since K.S.A. 2013 Supp. 21-5202(a) only requires that each crime have a generalintent requirement and the language of the statue defining criminal possession of a 

firearm doesn't indicate that the legislature wanted to require a more specific intent, we 

hold that criminal possession of a firearm is a general-intent crime. See Kendall, 300 

Kan. at ___, 331 P.3d at 768. Although mental culpability varies based on the wording of 

a specific statute, we note that several other state and federal courts have interpreted 

similar felon-in-possession statutes and concluded that the prosecution does not have to 

prove that the defendant knew of his or her felon status. See United States v. GamesPerez, 667 F.3d 1136, 1139-42 (10th Cir. 2012), cert. denied 134 S. Ct. 54 (2013); 

United States v. Gardner, 488 F.3d 700, 715-16 n. 2 (6th Cir. 2007); United States v. 

Langley, 62 F.3d 602, 606-07 (4th Cir. 1995); United States v. Locke, 542 F.2d 800, 801 

(9th Cir. 1976); Saadiq v. State, 387 N.W.2d 315, 323-24 (Iowa 1986); State v. Pelleteri, 

294 N.J. Super. 330, 333, 683 A.2d 555 (1996); State v. Rainoldi, 351 Or. 486, 502-06, 

268 P.3d 568 (2011). This is also consistent with our Supreme Court's interpretation of an 

earlier Kansas firearm-possession statute, which held that the crime requires "a willful or 

knowing possession of the firearm with the intent to control the use and management 

thereof" but not knowledge that the person was breaking the law barring a felon from 

possessing a firearm. See State v. Neal, 215 Kan. 737, Syl. ¶ 1, 529 P.2d 114 (1974).

Howard argues that the general-intent requirement applies to both elements of his 

crime and that to have a general intent for the felony element, he had to know he was a 

felon. He appears to base this argument on K.S.A. 2013 Supp. 21-5202(f), which says the 

culpable mental state for a given crime applies to all of the elements of the crime if the 
25

legislature has prescribed a culpable mental state without distinguishing among the 

elements. We do not find his argument persuasive.

First, there is no specific-intent requirement in the statute defining criminal 

possession of a firearm, and the statute defining the default mental culpability for 

criminal offenses, K.S.A. 2013 Supp. 21-5202(a), provides that the State only has to 

prove the defendant intentionally, recklessly, or knowingly engaged in the conduct that 

constitutes the crime. Here the prohibited conduct is possessing the firearm. 

Second, K.S.A. 2013 Supp. 21-5207(a), which says a mistake-of-law defense must 

negate the culpable mental state, is further limited by K.S.A. 2013 Supp. 21-5204(a), 

which says the State does not have to prove that a defendant knew about the existence of 

the criminal statute or the scope or meaning of its terms to prove general intent. Under 

K.S.A. 2013 Supp. 21-5204(a), the State was not required to prove that Howard knew the 

phrase "convicted of a felony" in the firearm-possession criminal statute had been 

interpreted to include people with his criminal background. 

Third, K.S.A. 2013 Supp. 21-5202(f) only provides that the culpable mental state 

for a given crime applies to all of the elements of the crime "[i]f the definition of a crime 

prescribes a culpable mental state . . . without distinguishing among the material 

elements" of the crime. Here the legislature had not "prescribed" a culpable mental state

because the statute defining criminal possession of a firearm did not include a culpability 

term. 

We therefore conclude that Howard's claimed mistake of law cannot negate the 

culpable mental state required in his case—even if Howard thought he was not a felon, 

that would not have negated his general intent to possess the firearm. The State did not 

have to prove that Howard knew about Kansas law regarding his felon status, and the 
26

evidence that he lawfully purchased the gun (as a nonfelon in Missouri) was neither 

probative nor material in his case. 

We noted earlier that district court rulings to exclude evidence in advance of trial 

are also reviewed to determine whether a pretrial ruling was appropriate. Howard does 

not challenge the district court's decision to rule on this issue before trial, and the 

disposition of such an issue where there are no facts in dispute obviously provides a 

benefit to the parties who, as here, can resolve the remainder of the case while preserving 

the key contested issue for appellate review. The district court did not err in excluding 

evidence that Howard had lawfully purchased the AK-47 in Missouri.

The district court's judgment is affirmed.